author: PADOVANO, J. KAHN, J.,

text:
    KEETON CORRECTIONS, INC., d/b/a Jacksonville Minimum Security Substance Abuse Facility, Appellant, v. RJ & RK, INC., a corporation and Kimberly Keeton Spence, as Personal Representative of the Estate of Ronald G. Keeton, Appellees.
    No. 1D02-4491.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.

      Larry A. Bodiford of Hutto and Bodi-ford, Panama City, for Appellant.
    Lawrence C. Rolfe of Rolfe & Lobello, P.A., Jacksonville, for Appellee RJ & RK, Inc.
    No appearance for Appellee Kimberly Keeton Spence.
   PADOVANO, J.

This is an appeal from a final order awarding double rent as a penalty for occupying real property beyond the term of a commercial lease. We agree with the trial court that the double rent provision in section 83.06, Florida Statutes (2000), applies to a tenancy at will and that it is not limited to a written lease with a fixed expiration date as the tenant contends. Therefore, we affirm.

The tenant, Keeton Corrections Inc., operated a halfway house in Jacksonville on property owned by its landlord, RJ & RK Corporation. When the tenancy was created, both corporations were owned by members of the same family and they entered into the transaction without the benefit of a written lease. The parties simply agreed that the tenant would pay the landlord’s monthly mortgage obligation on the property and this payment would be treated as rent.

By the time of the present controversy, the stock in the two corporations had passed down to members of different families. After the change in ownership, the arrangement continued with the tenant making the monthly payments. The parties were negotiating a change in the amount of the rent in October 2000, and when the negotiations broke down, the tenant stopped making rent payments altogether.

In a letter dated October 14, 2000, the landlord notified the tenant that the lease was terminated and informed the tenant that it would have to vacate the property before November 1, 2000. The letter also stated that if the tenant refused to move out by the date of the termination, the landlord would seek double rent under the provisions of section 83.06, Florida Statutes. The tenant continued to occupy the premises, which prompted the landlord to file a complaint for eviction and damages.

The case was presented in a bench trial and the landlord prevailed. The trial judge directed the clerk of the court to issue a writ of possession and awarded the landlord $18,389.87 in damages for the monthly rent due for October 2000. Additionally, the trial judge awarded the landlord double rent in the amount of $36,779.74 for each month the tenant held over in possession after November 1, 2000, the date the tenancy expired. The tenant then appealed.

Here, as in the trial court, the tenant contends that the double rent provision applies only to a lessee who remains in possession after the expiration of a written lease defining the duration of a tenancy. It does not apply to a month-to-month lease, the tenant argues, because such a lease has no fixed expiration date. We reject this argument. As we read the pertinent statutes, a tenant who remains in possession after the expiration of a tenancy at will is in no better position than a tenant who refuses to honor the terms of a written lease.

Section 83.01, Florida Statutes (2000), states that a lease shall be deemed to create a tenancy at will unless it is in writing and signed by the lessor. According to this statute, the duration of an oral lease is determined by the period of time in which rent is payable. “If payable monthly, then [the lease is] from month to month.” § 83.01, Fla. Stat. (2000); see also Sill v. Smith, 177 So.2d 265, 267 (Fla. 2d DCA 1965). It follows that an oral agreement to occupy property and to pay rent in return qualifies as a “lease,” and that an oral lease has a specific expiration date, even though it might not be known at the time the tenancy is created.

The expiration date of a tenancy at will is known with certainty as soon as the landlord gives proper notice of termination. Section 83.03(3), Florida Statutes (2000), provides that a month-to-month tenancy may be terminated by giving not less than fifteen days’ notice prior to the end of any monthly period. In the present case, the notice of termination was given more than fifteen days before the end of October 2000, so the lease expired by operation of law on October 31, 2000, and the tenant was required to surrender the premises by the end of that day.

Section 83.06, Florida Statutes, provides that a tenant holding over beyond the expiration of a lease is liable for double rent:

Right to demand double rent upon refusal to deliver possession—
(1) When any tenant refuses to give up possession of the premises at the end of the tenant’s lease, the landlord, the landlord’s agent, attorney, or legal representatives, may demand of such tenant double the monthly rent, and may recover the same at the expiration of every month, or in the same proportion for a longer or shorter time by distress, in the manner pointed out hereinafter.

§ 83.06, Fla. Stat. (2000) (emphasis added). Contrary to the tenant’s argument, the statute makes no distinction between a lease that expires by its terms and a lease that expires by operation of law. In either case, the lease has come to an end.

It is true that the double rent provision of the statute does not apply if the lease is terminated before it expires. A landlord who declares a breach of the lease might consider the lease to be terminated at that point, but the tenant is not liable for double rent merely by remaining in possession if the lease has not yet come to an end. As the supreme court explained in Wagner v. Rice, 97 So.2d 267 (Fla.1957), the double rent provision in section 83.06 applies only if the lease has expired by the passage of time. This limitation is one that is imposed by the terms of the statute, and it makes good sense. A tenant should be able to contest the issue of possession without suffering a penalty. In contrast, if the lease has expired, the tenant has no arguable right to remain in possession.

In the present case, the tenant failed to surrender the property after the lease had come to an end. The lease was not in writing, but we find nothing in the language of section 83.06 to suggest that the double rent provision is limited to written leases. The plain language of the statute compels us to conclude that the double rent provision applies to a tenant holding over after the expiration of a tenancy at will. This conclusion is supported by the holding in Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So.2d 126, 128 (Fla. 3d DCA 1975). There, the court affirmed an award of double rent against a tenant holding over after the end of a month-to-month tenancy. The court did not address the argument presented here, but it is implicit in the court’s decision that the double rent provision applies to an oral lease.

For these reasons, we conclude that the trial court correctly applied the applicable provisions of the landlord and tenant statute. The tenant held over in possession after the end of the lease and was therefore liable for double rent.

Affirmed.

DAVIS, J., CONCURS. KAHN, J., DISSENTS WITH OPINION.

KAHN, J.,

dissenting.

I find myself persuaded by appellant’s view of this case. I therefore dissent from the majority opinion.

The tenancy in this case was by unwritten lease with rent payable monthly. Accordingly, as all parties agree, occupancy of the leasehold was a month-to-month tenancy at will. See § 83.01, Fla. Stat. The lease created by such a tenancy at will, however, is not a monthly lease. Instead, as this court has noted in the context of the statute of frauds, such a lease “continues in effect for more than a year.” Mangum v. Susser, 764 So.2d 653, 655 (Fla. 1st DCA 2000).

As stated by the majority, section 83.06, Florida Statutes, entitles a landlord to collect a penal sum in the form of double rent from “any tenant (who) refuses to give up possession of the premises at the end of the tenant’s lease.... ” § 83.06(1), Fla. Stat. My point of disagreement with the majority is simply that I do not deem that the statutory threshold for double rent has been crossed in the present case. The statute is undoubtedly penal in nature and must be strictly construed. See Wagner v. Rice, 97 So.2d 267, 269 (Fla.1957). The statute uses the phrase “at the end of the tenant’s lease.” The supreme court has construed such a phrase as having “reference to the expiration of a term by the efflux of time rather than upon the declaration of a forfeiture for default.” Id. In this case, the landlord acted within its rights to declare the tenancy at an end, and therefore, did not rely upon a default. Nevertheless, I believe that before the penal statute is applied, a court must find that a lease has expired by its own terms, rather than by the unilateral, although quite legal, designation of either the tenant or the landlord.

The penal statute we consider here appears to be intended to assist the landlord in ridding itself of a recalcitrant hold-over commercial tenant. I conclude that such a purpose is not legitimately served by applying the double-rent statute to a monthly tenancy at will, and even less so to a weekly tenancy at will. The parties to a tenancy for a term of years will know well in advance when the lease is set to expire and can govern themselves accordingly. The parties to a tenancy at will lack the advantage of knowing ahead of time that the tenancy is set to expire because either party may validly terminate the tenancy by fifteen-day’s notice for a monthly period, or seven-day’s notice for a weekly period. See § 83.03(3), (4), Fla. Stat.

I would follow the supreme court’s ruling in Wagner and hold that double rents are due only after the expiration of a previously determined term, rather than upon the declaration of the landlord, even where such declaration is completely legal. I disagree with the holding of the Third District in Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So.2d 126 (Fla. 3d DCA 1975).

      . This also resulted in a mortgage foreclosure action. See RJ & RK, Inc. v. Spence, 855 So.2d 642 (Fla. 1st DCA 2003).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mary M. LIVINGSTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3221.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.

      Michael R. Rollo, Pensacola; Laura L. Whiteside, Tampa, for petitioner.
    Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Contending that the trial judge should have granted a motion for disqualification, Mary M. Livingston petitions this court for a writ of prohibition. We have jurisdiction. Zuehel v. State, 824 So.2d 1044 (Fla. 4th DCA 2002). We conclude that the motion was timely and facially sufficient; we therefore grant the petition.

Livingston was convicted of certain felonies and appealed to this court. Some of the convictions were affirmed, but this court found there was insufficient evidence to support other convictions. The cause was reversed and remanded for further proceedings, including resentencing. Livingston v. State, 833 So.2d 298 (Fla. 1st DCA 2002).

On remand, the cause was reassigned to Judge Jan Shackelford, who had conducted the trial and imposed the original sentence. Livingston’s motion for disqualification asserted, among other things, that the defendant had learned within the previous ten days that Judge Shackelford had, in at least one other criminal matter pending before her, revealed to the parties that she and Assistant State Attorney Brenda Neel were former co-workers in the State Attorney’s Office and the two maintained a current friendship which included social lunches and dinners. Ms. Neel represented the state in the circuit court proceedings which led to Livingston’s original judgments and sentences. Despite her apparent intent in the other case to have the case reassigned to another judge or to request that the state replace Ms. Neel, Judge Shackelford denied Livingston’s motion for disqualification as legally insufficient.

The judge’s decision is reviewed on a de novo basis. Amato v. Winn Dixie Stores, 810 So.2d 979 (Fla. 1st DCA 2002). The question is whether a reasonably prudent person, faced with these facts, would be put in fear of not receiving a fair and impartial trial (or, in this case, resentenc-ing) before this particular judge. Levine v. State, 650 So.2d 666 (Fla. 4th DCA 1995). We answer this question affirmatively. The motion satisfied the test set forth in Levine, and numerous other reported Florida decisions, for the facial sufficiency of a motion to disqualify a trial judge.

We also address the issue of the technical sufficiency of the motion. Florida Rule of Judicial Administration 2.160(c) requires that counsel certify that the motion and the client’s statements are made in good faith. Here, counsel certified that the motion was made in good faith, but omitted the language concerning the client’s statements. The exact language contained in the certification was:

15. THE UNDERSIGNED ATTORNEY, Michael R. Rollo, Esquire, attorney for DEFENDANT, Mary Melissa Livingston, as an officer of the Court, as an attorney in good standing with the Florida Bar, and in compliance with Rule 2.160(c), Fla. R. Jud. Admin., certifies that the instant Motion to Disqualify is made in good faith.

Here, the motion to disqualify consisted almost entirely of the client’s statements made under oath. By certifying that the motion was made in good faith and in compliance with the applicable rule, counsel necessarily certified that the client’s affidavit was made in good faith. Denial of the motion on this technical ground was error.

Accordingly, we grant the petition and remand the cause to Judge Shackelford with directions to grant the motion for disqualification and request that the Chief Circuit Judge assign another judge to preside over the resentencing of Livingston.

PETITION GRANTED.

ALLEN, DAVIS and BENTON, JJ., concur.


text:
    John Makario JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4054.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.
    John Makario Johnson, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

ALLEN, DAVIS and BENTON, JJ., concur.


text:
    Ronnie Eugene DAVENPORT, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1612.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach portions of the record to refute the appellant’s claim that his counsel was ineffective for failing to object to the prosecutor’s closing argument, we reverse. We affirm all other issues raised without further discussion.

The appellant was convicted of robbery with a firearm and was sentenced to 30 years’ imprisonment. In a motion for postconviction relief, the appellant made a facially sufficient claim that counsel should have objected when the prosecutor made comments about the appellant’s right to remain silent and referred to facts not in evidence during his closing. See Martin v. State, 501 So.2d 1313 (Fla. 1st DCA 1986).

Because the trial court failed to refute the appellant’s claim with record attachments, we reverse and remand for an evi-dentiary hearing or the further attachment of record portions that conclusively refute the appellant’s claim. See Ricardo v. State, 756 So.2d 215 (Fla. 4th DCA 2000); Davis v. State, 648 So.2d 1249 (Fla. 4th DCA 1995).

AFFIRMED, in part, REVERSED, in part, and REMANDED, in part.

ALLEN, DAVIS, and BENTON, JJ., CONCUR.


text:
    Larry RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4793.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and James W. Rogers, Assistant Attorney General, for Appellee.
   PER CURIAM.

We affirm the convictions of Larry Russell and reject his claim that the trial court fundamentally erred by giving the standard jury instruction regarding the inference that arises from proof of possession of recently stolen property, on the grounds that the instruction created an impermissible mandatory presumption and constituted an improper comment on the evidence. See Walker v. State, 853 So.2d 498 (Fla. 1st DCA 2003); Currington v. State, 711 So.2d 218 (Fla. 5th DCA 1998). Russell waived certification of the question from Walker by failing to object below. Wright v. State, 789 So.2d 1246 (Fla. 1st DCA 2001), review denied, 816 So.2d 131 (Fla.2002).

AFFIRMED.

ERVIN, BOOTH and KAHN, JJ., CONCUR.


text:
    Timothy GAMMON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3039.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule Criminal Procedure 3.800(a). Because the trial court failed to conclusively refute the appellant’s claim that there was no factual basis to support the imposition of a mandatory minimum term, we reverse. We affirm all other issues raised in the appellant’s motion without discussion.

On June 19, 1990, the appellant was convicted of armed robbery in case number 89-0942 and was sentenced to ten years’ imprisonment with a three-year mandatory minimum for the possession of a firearm. The appellant alleged in his rule 3.800(a) motion that the three-year mandatory minimum imposed in this case was illegal because the factual basis showed that the appellant did not possess the firearm used in the robbery. The appellant directed the Court’s attention to a portion of the record where the state conceded that the appellant did not possess a firearm during this offense. The trial court failed to attach any portion of the record to refute the appellant’s claim and found that the issue should have been raised on direct appeal. Because there was an affirmative indication on the face of the record that the appellant did not possess a firearm, the claim that there was not a factual basis to support the imposition of a firearm mandatory minimum is cognizable in a rule 8.800(a) motion. See Knight v. State, 763 So.2d 1231 (Fla. 1st DCA 2000); Valdes v. State, 765 So.2d 774, 776 (Fla. 1st DCA 2000).

We therefore reverse the trial court’s summary denial of this claim and remand for further attachment of record portions conclusively refuting the appellant’s claim or for resentencing.

AFFIRMED in part, REVERSED in part, and REMANDED.

BARFIELD, ALLEN and DAVIS, JJ., CONCUR.


text:
    Manuel GATLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0719.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.
    Jason Michael Savitz, Tallahassee, for petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Manuel Gat-lin is hereby afforded a belated appeal from the judgment and sentence imposed in Calhoun County case number 2000-238 CF. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, and shall be treated as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

If petitioner qualifies for counsel to be appointed at public expense for the direct appeal, the trial court is directed to make such an appointment.

PETITION GRANTED.

ALLEN, DAVIS and BENTON, JJ„ concur.


text:
    Isiah GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4202.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.
    Nancy A. Daniels, Public Defender; Gary D. Wimsett, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Isiah Gordon, appeals his conviction and sentence for possession of cocaine and possession of drug paraphernalia. While appellant raises two issues on appeal, we find that only one issue has merit and warrants further discussion. Appellant contends that the trial court erred by refusing his requested jury instruction on knowledge of the illicit nature of the substance and paraphernalia. We agree and, therefore, reverse and remand for a new trial.

By information, the State charged appellant with one count of possession of cocaine and one count of possession of drug paraphernalia, for offenses occurring on February 25, 2002. During his trial on these charges, appellant made timely oral and written requests for jury instructions on the element of knowledge of the illicit nature of the substance and of the illicit nature of the paraphernalia. The trial court denied both requests and instead instructed the jury according to the standard jury instructions.

In charging appellant with possession of cocaine and drug paraphernalia, the State was required to prove that appellant had knowledge of the illicit nature of

the items in his possession. See Chicone v. State, 684 So.2d 736, 744 (Fla.1996). A defendant has the right to have a court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence. See id. at 745 (citing Gerds v. State, 64 So.2d 915, 916 (Fla.1953)). Thus, the supreme court determined in Chicane that, when specifically requested by a defendant, the trial court should expressly indicate to jurors that guilty knowledge means that the defendant must have knowledge of the illicit nature of the substance allegedly possessed. Chicone, 684 So.2d at 745-46. Accordingly, appellant was entitled to have the jury instructed, as he had requested, on the element of guilty knowledge of the illicit nature of the substance and of the paraphernalia.

REVERSED and REMANDED for a new trial.

ERVIN, ALLEN and LEWIS, JJ., CONCUR.

      . The Legislature has now superseded Chi-cone by statute, declaring that knowledge of the illicit nature of the substance is no longer an element of the offenses of possession for offenses committed after May 13, 2002. § 893.101, Fla. Stat. (2002). However, appellant committed his offense prior to the effective date of section 893.101, and the statute cannot be applied to him retroactively. See Starling v. State, 842 So.2d 992, 993 n. 1 (Fla. 1st DCA 2003).


text:
    Judith K. GIBSON, Appellant, v. Edward D. GIBSON, Appellee.
    No. 1D02-3070.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.
    Carroll L. McCauley, Panama City, for Appellant.
    Russell K. Ramey, Panama City, for Ap-pellee.
   PER CURIAM.

We find that the trial court abused its discretion in modifying Appellee’s alimony obligation because there was no evidence of a substantial change in circumstances occurring after the entry of the original alimony award. See, e.g., Hanskat v. Hanskat, 716 So.2d 347 (Fla. 1st DCA 1998). The financial circumstances of the parties are essentially the same as they were at the time of the original alimony award. We, therefore, reverse the trial court’s order modifying the original alimony award, and remand.

ALLEN, DAVIS and BENTON, JJ., concur.


text:
    Betty BELL and Dewayne Bell, Appellants, v. Lyle MILLER, d/b/a Lyle Miller Construction Company, Appellee.
    No. 1D01-4362.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2003.

      Arthur I. Jacobs and Lanny M. Rauer of Jacobs & Associates, P.A., Fernandina Beach, for Appellants.
    Michael L. Edwards, Jacksonville, for Appellee.
   PER CURIAM.

Appellants, Betty and Dewayne Bell, appeal a final judgment entered against them in a suit alleging breach of a construction contract brought by appellee, Lyle Miller, d/b/a/ Lyle Miller Construction Company. The Bells contend that the trial court failed to deduct certain costs and penalties from the amount it awarded appellee, and did not take certain uncompleted work into account. We affirm in part and reverse in part, concluding that the record shows that the Bells are entitled to additional deductions.

While Miller was renting a house from the Bells in Fernandina Beach for $1,100 per month, the Bells contracted with him to perform certain renovations to the house, agreeing that they would waive the rent during the time the work was performed. Miller did not complete the renovation and moved out in February 2001, and thereafter filed a claim of lien, seeking $16,112 for work performed between December 2, 2000, and April 7, 2001. The trial court directed the Bells to pay Miller the $16,112, less $1,150 for inspection work and permits, and $2,200 for two months’ late charges at $1,100 per month, for a total award of $12,762. The Bells fail to show an abuse of the court’s discretion in finding that the value of the work Miller had performed was $16,112. There is no record support, however, for the amounts the court deducted therefrom.

Miller admitted that the court should deduct $255 for permits he had failed to obtain, and that the city would double this amount because he had worked without the permits, resulting in a total of $510. Miller also admitted that the court should deduct the cost of removing sheetrock and concrete in order to obtain a plumbing inspection. He testified that it would cost $125 to remove and reinstall the sheetrock, and $4,500 to remove and repour the concrete. The costs, therefore, of inspections and permits is $5,135, rather than $1,150.

The lower court also found that Miller owed a two-month late charge of $2,200 or $1,100 per month, because the contract called for construction to be completed 150 days after permitting, and the court concluded that at the time of trial on September 24, 2001, the project was late by two months. There is nothing, however, in the parties’ agreement imposing a “late charge” if the renovations were not completed within the specified time. Presumably, the figure of $1,100 represents the monthly rent that Miller testified the Bells waived during the time he continued work on the house. He stated in his claim of lien that the $16,112 represented work performed between December 2, 2000, and April 7, 2001. If Miller stopped work on April 7, 2001, he would owe the Bells $6,050 for five-and-a-half months’ rent between April 7, 2001, and September 24, 2001, when he admitted that he remained legally in possession of the house, rather than $2,200 for two months.

We reverse and remand with directions to the trial court to reconsider and recalculate the damages.

AFFIRMED in part, REVERSED in part and REMANDED for further proceedings consistent with this opinion.

ERVIN, BOOTH and KAHN, JJ., CONCUR.


text:
    Mary M. THOMPSON, Appellant, v. Ronald W. THOMPSON, Appellee.
    No. 1D02-3344.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2003.
    J. Nickolas Alexander, Jr., Esq., Orange Park, for Appellant.
    Wm. Bruce Muench, Esq., Jacksonville, for Appellee.
   PER CURIAM.

We affirm the order of the trial court requiring appellant to fulfill her child support and child support arrearage obligations. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980); Dep't of Revenue ex rel. Brown v. Steinle, 837 So.2d 1072, 1074 (Fla. 2d DCA 2003) (citations omitted); State, Dep't of Revenue ex rel. Dees v. Petro, 765 So.2d 792, 793 (Fla. 1st DCA 2000); Young v. Hector, 740 So.2d 1153, 1158 (Fla. 3d DCA 1998). However, we decline to accept jurisdiction over the order granting appellee’s motion to dismiss appellant’s petition for modification of child custody, with leave to amend, as that order is neither a final order nor an ap-pealable order. See Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995); Augustin v. Blount, Inc., 573 So.2d 104, 105 (Fla. 1st DCA 1991). The appeal as to the order of dismissal with leave to amend is dismissed for lack of jurisdiction without prejudice to the right of the appealing party to file a timely notice of appeal after a final order has been rendered by the trial court. See Benton, 655 So.2d at 1273.

AFFIRMED in part; DISMISSED in part.

ERVIN, ALLEN and LEWIS, JJ., Concur.


author: BARFIELD, J.

text:
    NOS COMMUNICATIONS, INC.; Affinity Network, Inc.; and Nosva, Limited Partnership, Appellants, v. STATE of Florida, Department of Legal Affairs; and Robert A. Butterworth as Attorney General, Appellees.
    No. 1D02-3820.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2003.

      Floyd R. Self and E. Gary Early, Mes-ser, Caparello & Self, P.A., Tallahassee, for Appellants.
    Charles J. Crist, Jr., Attorney General, Christopher M. Rise, Solicitor General, John D.C. Newton, II, Senior Assistant Attorney General, John Topa, Assistant Attorney General, Tallahassee, for Appel-lees.
   BARFIELD, J.

The appellants challenge the trial court’s order denying injunctive relief with respect to the release, under Florida’s Public Records Act, section 119.07, Florida Statutes, of documents they submitted to the Office of the Attorney General in response to a valid investigative subpoena. The trial court’s order is AFFIRMED.

We note that appellants raised for the first time in their reply brief the argument that the documents at issue were exempt from the Public Records Act under section 815.045, Florida Statutes. Had this argument been raised and rejected in the trial court, and had that rejection been made an issue in the initial brief, we would have been constrained by this court’s recent decision in SePRO v. Florida Department of Environmental Protection, 889 So.2d 781 (Fla. 1st DCA 2003), review of which is currently being sought in the supreme court, to reverse the trial court’s denial of injunctive relief.

WEBSTER and BROWNING, JJ„ Concur.


text:
    Kirk Phillip ALEXANDER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3910.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2003.
    Kirk Phillip Alexander, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

ALLEN, DAVIS and BENTON, JJ., concur.


text:
    Warnell ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4078.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2003.

      Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. Palmer v. State, 782 So.2d 508 (Fla. 1st DCA 2001).

BARFIELD, WEBSTER and BROWNING, JJ., concur.


text:
    Douglas M. JACKSON, Sr., Appellant, v. ARAMARK FOOD SERVICE CORP. at Wakulla Correctional Institution and James Williams, Food Service Director, Appellee.
    No. 1D03-3292.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2003.
    Appellant, pro se.
    Catherine Bembry, Tallahassee, and Ca-ryl Kolinski, Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 12, 2003, the Court has determined that the order on appeal is not final. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BARFIELD, WEBSTER and BROWNING, JJ., concur.


text:
    James PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3417.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Daniel A David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The trial court’s order denying the appellant’s motion to enforce plea agreement is affirmed without prejudice to the appellant seeking administrative relief from the Department of Corrections. See Banks v. State, 793 So.2d 132 (Fla. 4th DCA 2001).

AFFIRMED.

BROWNING, POLSTON and HAWKES, JJ., concur.


text:
    Edward C. VINING, Jr., Appellant, v. Eva MARTYN, Appellee.
    No. 3D02-858.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Edward C. Vining, Jr., Miami, in proper person.
    Lauri Waldman Ross, Miami, for appel-lee.
    Before COPE, GERSTEN and GODERICH, JJ.
   PER CURIAM.

Edward C. Vining, Jr., appeals a final judgment in one garnishment proceeding and interlocutory orders in another. We affirm the final judgment and dismiss the appeal as to the interlocutory orders.

I.

Appellee Eva Martyn obtained a judgment against Vining, which has not been satisfied. Martyn determined that in other litigation Vining obtained two judgments against Frank J. Pepper, Jr., and other defendants (collectively “Pepper”). Pepper had not paid Vining the judgment amount, which was approximately $86,000.

Martyn served writs of garnishment on Pepper, seeking to collect the $86,000 which Pepper owed to Vining. Vining filed an affidavit for exemption from garnishment under section 222.12, Florida Statutes (2000), asserting that the judgment was due for his personal labor and services, and that he is the head of a Florida family. Martyn’s attorney filed a sworn denial, denying that Vining was entitled to the exemption.

Pepper interpled the judgment amounts into the registry of the court. The trial court ruled that Martyn is entitled to the money. Vining has appealed.

We conclude that the judgment must be affirmed. We reject Vining’s argument that the sworn denial of exemption was untimely. Under the statute, time is calculated from “the service of said notice,” id., and when so calculated, is timely.

On the merits, the funds at issue here were proceeds of Vining’s law practice. We agree with the trial court that the funds do not qualify for the statutory exemption. See In re: Zamora, 187 B.R. 783 (Bankr.S.D.Fla.1995); Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931); Vining v. Segal, 731 So.2d 826 (Fla. 3d DCA 1999); Refco, Inc. v. Sarmiento, 487 So.2d 75 (Fla. 3d DCA 1986).

Vining also argues that the oath was insufficient to support the opposition affidavit filed by Martyn’s counsel. In absence of a transcript, we have been unable to determine whether this argument was timely called to the trial court’s attention, and if so, what arguments were made for and against. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979).

II.

Vining was sued in separate litigation by a former client, Mary Alice Poe, alleging legal malpractice, breach of contract, and other claims. Vining filed a counterclaim.

Martyn filed a writ of garnishment, seeking to reach any affirmative recovery that Vining might obtain because of his counterclaim in the Poe litigation. Vining filed motions to dismiss, dissolve, and discharge the writ of garnishment. The trial court denied Vining’s motions, and Vining has appealed.

As the trial court’s rulings on these motions are interlocutory, non-appealable orders, we dismiss the appeal as to the Poe garnishment, and decline to entertain the appeal as a petition for writ of certiorari.

Affirmed as to Pepper garnishment; appeal dismissed as to Poe garnishment.

       It appears that Vining did not raise this issue until after the trial court had already entered partial summary judgment in favor of Martyn, reserving only a single issue for decision (whether the opposition affidavit of Martyn’s counsel had been timely served). It thus appears that the issue of sufficiency of the oath was untimely raised.


text:
    The STATE of Florida, Appellant, v. Keith CANTY, Appellee.
    Nos. 3D02-1231, 3D02-1230.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Charles J. Christ, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellee.
    Before COPE, GODERICH and RAMIREZ, JJ.
   PER CURIAM.

The State appeals a downward departure sentence. We reverse.

Assuming for present purposes that the downward departure reasons given by the trial court were valid for Miami-Dade County Circuit Court case number 01-34599, those reasons have no apparent relationship to the other crime with which defendant-appellant Canty was charged, grand theft of a vehicle, in Miami-Dade County Circuit Court case number 02-6461. We therefore return the case to the trial court for resentencing, or alternatively, with leave for the defendant to withdraw his plea. See State v. Roberts, 824 So.2d 908 (Fla. 3d DCA 2002); State v. Johnson, 796 So.2d 1213 (Fla. 3d DCA 2001); State v. Ford, 739 So.2d 629 (Fla. 3d DCA 1999).

Reversed and remanded.


author: COPE, J.

text:
    Jerome BRANDFUL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3079.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.

      John H. Lipinski, Hollywood, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before COPE, LEVY and SHEVIN, JJ.
   COPE, J.

Defendant-appellant Jerome Brandful appeals his convictions and sentences for resisting an officer without violence and disorderly conduct. He makes six claims on appeal. We find merit in one claim but affirm as to the remaining claims.

Defendant argues that he is entitled to a new sentencing proceeding in front of another judge because of vindictive sentencing. See Wilson v. State, 845 So.2d 142 (Fla.2003). The defendant’s point is well taken.

The defendant was charged with resisting arrest with violence, battery on a police officer, and disorderly conduct. The defendant is a student at Florida International University (FIU). The charges arose from campus police officers’ effort to remove the defendant from the FIU bookstore, arising out of the bookstore’s refusal to repurchase the defendant’s books.

When defendant appeared for arraignment, the State offered pretrial diversion. The trial court properly ascertained that the defendant understood the nature of the charges against him, the potential penalties, and the State’s plea offer. The court afforded the defendant an opportunity to talk to his attorney and consider the offer. Defendant rejected the offer.

At that point, under any reasonable reading of the colloquy, the trial court became an advocate for the plea offer. In explaining the ramifications of a rejection of the offer, the judge asked the defendant whether he thought a jury would “cut you a break after an officer says that you threatened to kick his ass, kicked chairs all around the room, and wrestled with all these guys, and resisted the arrest like that; you think they’re going to cut you a break?” The defendant again rejected the plea offer.

Several months later, at the defendant’s next appearance in court, the State extended an offer of probation with a withholding of adjudication. The defendant again turned down the plea offer.

At trial, the jury acquitted the defendant of the charge of battery on a law enforcement officer. The jury rejected the charge of resisting an officer with violence, and convicted on the lesser included charge of resisting an officer without violence, a first degree misdemeanor. The jury convicted the defendant of disorderly conduct, a second degree misdemeanor.

The court sentenced the defendant to 364 days on the first degree misdemeanor, one day less than the legal maximum, and a consecutive 60 days on the second degree misdemeanor, the legal maximum. We conclude that under the circumstances of this case, several of the factors of Wilson v. State exist and a new sentencing hearing must be held before a different judge.

In imposing the sentences, the trial court mentioned the fact that the defendant had turned down a favorable plea offer and had insisted on going to trial. Whereas the State had extended two plea offers which did not involve incarceration, the ultimate sentence was for incarceration at the legal maximum. The facts that unfolded at trial were not significantly different from those outlined in the arrest form, which the court was familiar with. The defendant does not have any prior convictions, and there is nothing apparent on the face of the record that would explain the reason for the increased sentence. See Wilson, 846 So.2d at 156.

We are confident that the trial court acted with good motive in pressing the defendant to reconsider the State’s plea offers and, in effect, becoming an advocate for those offers. The court was confronted with a defendant who was a student with little or no experience with the criminal justice system. The felony charges were very serious and the State’s plea offers were quite reasonable. It is, however, settled under Wilson that insistence on going to trial cannot be held against the defendant in sentencing. See id. at 151. Under Wilson, there must be a new sentencing proceeding before a different judge.

As to defendant’s remaining claims, we find no merit. Defendant claims error in the jury instruction on the charge of resisting arrest without violence. The defendant says that the instructions invaded the province of the jury but that is not so. The trial court properly interpreted and applied the standard jury instruction. See Wright v. State, 586 So.2d 1024 (Fla.1991); Starks v. State, 627 So.2d 1194 (Fla. 3d DCA 1993).

The trial court gave the standard jury instruction as follows:

Before you can find the defendant guilty of resisting an officer without violence as a lesser included offense of resisting an officer with violence, the State must prove the following three elements beyond a reasonable doubt.
One, Jerome Brandful resisted or obstructed or opposed Officer Ventrere and/or Officer Cox.
Number two, at the time Officer Ventrere and/or Officer Cox were engaged in the lawful execution of a legal duty.
Number three, Officer Ventrere and/or Officer Cox were officers.
The Court again instructs you that every FIU officer is an officer within the meaning of this law. The Court further instructs you that investigating a complaint constitutes a lawful execution of a legal duty.

TR. 116-17.

These instructions are entirely correct under Wright, Starks, and the Standard Jury Instruction. The court properly instructed, in generic terms, that an FIU police officer is a law enforcement officer, and that investigating a complaint constitutes the lawful execution of a legal duty. It then becomes a jury issue to determine whether Officers Ventrere and Cox are FIU police officers, and whether they were engaged in investigating a complaint at the time of the incident complained of.

Defendant cites Campbell v. State, 812 So.2d 540 (Fla. 4th DCA 2002) as authority for his claim but that case has no application here. The issue in Campbell was the denial of a requested special instruction. The Campbell decision does not address the issue now before us.

Defendant next claims he is entitled to relief because of improper closing arguments by the state. The statements claimed by defendant to be improper on appeal were not objected to. Had they been objected to, the statements were fair comments on the evidence and did not amount to improper vouching.

Defendant argues that the evidence was legally insufficient on both convictions. We reject these arguments on authority of Wiltzer v. State, 756 So.2d 1063, 1065-1066 (Fla. 4th DCA 2000).

Finally, defendant claims the trial court erred in permitting the State to cross-examine the defendant concerning a pending civil lawsuit that the defendant had filed against another FIU officer. The trial court correctly overruled the objection. The cross-examination was permissible to show bias. See Lombardi v. State, 358 So.2d 220, 221 (Fla. 1st DCA 1978); Charles W. Ehrhardt, Florida Evidence § 608.5, at 496 (2003).

Affirmed in part, reversed in part and remanded for a new sentencing hearing before a different judge.

      . The court also said that "once the state withdraws the offer then unless I feel in the mood, I don’t need to offer anything to you and then you're just stuck going to trial.”

      . The Wilson opinion provides, in part:
      Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a "reasonable likelihood” that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial. The other factors that should be considered include but are not limited to: (1) whether the trial judge initiated the plea discussions with the defendant in violation of [State v.] Warner, [762 So.2d 507 (Fla.2000)]; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

        Id. at 156 (footnotes and citation omitted).

      . Although not raised as an issue in Campbell, it would appear that the trial court in Campbell should not have said "the arrest constitutes a lawful execution of a legal duty,” id. at 543, and instead should have said "an arrest constitutes a lawful execution of a legal duty.”


author: PER CURIAM. GREEN, J.

text:
    Daniel G. JONES, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D02-3086, 3D03-2092.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Daniel G. Jones, in proper person.
    Charles J. Crist, Jr., Attorney General, and Erin K. Zack and Meredith L. Balo, Assistant Attorneys General, for appellee.
    Before SCHWARTZ, C.J., and GREEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA)(en banc), review granted, Nos. SC03-413, 03-532, 854 So.2d 659 (Fla. Sept.19, 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002).

GREEN, J.

(specially concurring).

The doctrine of stare decisis compels me to join in the affirmance of this cause, but I continue to adhere to the view that Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), was correct in its conclusion that Chapter Law 99-188, Laws of Florida, violates the single subject rule of the Florida Constitution.


author: STONE, J.

text:
    BOB MONTGOMERY REAL ESTATE d/b/a Ocean & Intracoastal Properties, Appellant, v. Noreen DJOKIC and Jeannette Teufel, Appellees.
    No. 4D02-3849.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.

      Derek T. Montgomery, Lantana, for appellant.
    Walter H. Djokie of McIntosh, Sawran, Peltz, Cartaya & Petruecelli, P.A., West Palm Beach, for appellees.
   STONE, J.

Bob Montgomery Real Estate, Inc. (Montgomery), a real estate broker, sued Appellees, real estate agents, alleging tor-tious interference with contractual relationships. The trial court dismissed two counts of the complaint as a sanction against Montgomery, concluding that Montgomery had attached a forged and an altered document to its amended complaint. We reverse.

Although dismissal is an available remedy for knowingly submitting forged or altered documents with the intent to deceive, Morgan v. Campbell, 816 So.2d 251 (Fla. 2d DCA 2002), here, there is no evidence that Montgomery did so.

Montgomery hired Appellees as agents and, in that capacity, they entered into exclusive right of sale listing agreements with three real estate owners. When Montgomery later fired Appellees, the three property owners cancelled the exclusive listings. The counts as to two of the properties are the subject of this appeal.

Appellees had earlier moved to dismiss the amended complaint, arguing that the listing agreement on property at 826 Oyster Lane expired on September 17, 1998, well before the alleged tortious interference occurred. Montgomery filed a second amended complaint, attaching a form captioned “Change Form” to the listing attached as an exhibit, which purported to extend the length of the listing agreement of the Oyster Lane property.

Appellees charge that the owner’s signature on the “Change Form” concerning the Oyster Lane property was forged. Attached to the motion to dismiss was an affidavit by the Oyster Lane property owner, denying that she signed the “Change Form.” Appellees also charge that the listing agreement on another exhibit, the Austin Lane property, was altered. The copy of the listing agreement on the Austin Lane property reflects that the inception and termination dates had been altered with white-out in order to extend the length of the contract.

An evidentiary hearing was held on Ap-pellees’ motion to dismiss as a sanction, at which defense counsel proposed that the dates on the listing agreement governing the Austin property were altered with white-out to extend the listing and contended that the owner’s signature was forged on the “Change Form.”

In response, Mr. Montgomery advised the trial court that he was not contesting the fact that the listing agreement for Austin Lane had white-out on it; however, he did not know who altered the document. Montgomery also testified that he had no knowledge concerning the allegedly forged signature on the “Change Form.”

Appellee agent, Noreen Djokic, testified that she procured the listing for the Austin Lane property, but did not have access to the listing agreement after she was fired and denied altering the document. As to the Oyster Lane property, Djokic testified that the owner lived in Germany. Djokic admitted that there was a letter in the file that purported to be from her, written and faxed to the German owner, advising her that the listing agreement was going to expire and needed to be re-listed, but Djokic asserted that she did not remember writing the letter and had no recollection concerning whether the owner signed anything authorizing the extension of the listing.

Djokic admitted that she had access to the listing agreements before she left and conceded that the secretary in the office would occasionally handle the extensions of listing agreements. When asked whether the document was altered by Mr. Montgomery, she replied, “I don’t have any idea who prepared it.” Also concerning the Oyster Lane property, Djokic was asked, “Did you ever at any time obtain an extension from either of the owners?” She replied, “I don’t know.” When she was directly asked whether Montgomery forged the signature on the change form, Djokic responded, “I don’t know. I don’t know who filled it out.” The parties stipulated that the Oyster Lane property was re-listed by Djokic while working for her new broker, the day after the extension expired as set forth in the allegedly forged “Change Form.”

Montgomery testified that he did not white-out the dates on the Austin Lane listing agreement, but instead, found the document that way when the litigation began. In his answers to damage interrogatories filed five months before the defendants’ motion to dismiss, he admitted that the expiration date of the listing agreement on the Austin Lane property should have been January 8, 1999, not the inserted later date. Montgomery notes that it would have been the agent’s responsibility, not his, to procure the extension for any listing on the Oyster Lane property.

Appellees do not contend that Montgomery was the author of the forged or altered documents. Rather, the crux of the misconduct, which the trial court sanctioned, was that the documents were proffered as exhibits to the amended pleading, notwithstanding Montgomery’s knowledge, gleaned in discovery, that they were not genuine. Appellees admit that the source of the additions to the documents remains open to speculation, with each side asserting only that the circumstances point to the other.

Appellees suggest that since Montgomery’s answers to interrogatories concede that the expiration date on the Austin Lane contract was initially earlier than the altered date stated thereon, he therefore knew about the alteration and did nothing to advise the court of a possible fraud or to also submit an accurate copy of the unaltered document. As for the alleged forged extension document executed on the Oyster Lane property, Appellees contend that if the exhibit existed, why was it not attached to the earlier complaint and amended complaint?

On the other hand, there is evidence that Djokic was in possession of the file and documents until she left and that she was responsible for submitting the listings to the multiple listing service. Montgomery notes that the multiple listing service will not accept a listing that is more than five days old and that when the expiration date was changed, the beginning date was also changed, coinciding with the date it was listed. Montgomery also points to correspondence in the files indicating that Djokic and the Oyster Lane owner understood the listing was extended.

Although a dismissal imposed as a sanction is reviewed under an abuse of discretion standard, the trial court’s discretion is narrowed where dismissal is imposed for fraudulent conduct such as that alleged here, in which a more stringent abuse of discretion standard is appropriate. Such sanction may be imposed only on a “clear showing of fraud, pretense, collusion, or similar wrongdoing.” Tri Star Inv. v. Miele, 407 So.2d 292, 293 (Fla. 2d DCA 1981); see also Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998).

The record reflects nothing but tenuous and conflicting evidence about the claims of misconduct. Given the equivocal testimony, we are guided by this court’s recent, albeit distinguishable, opinion in Arzuman v. Saud, 843 So.2d 950 (Fla. 4th DCA 2003).

In Arzuman, the plaintiff offered conflicting testimony in which he claimed to own shares of stock in a corporation, but also claimed that the corporation was owned entirely by the defendant. See id. at 951. On this conflicting testimony, the trial court dismissed all of his claims with prejudice for committing perjury and fraud on the court. See id.

The court in Arzuman, discussing the standard of review, stated:

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). When reviewing a case for fraud, the court should “consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18.

Id. at 952. The court also recognized that in those cases in which dismissal was upheld, “the claimants were attempting to conceal information by making statements under oath which were revealed to be false when the defendants uncovered the truth.” Id.

In a similar case, Jacob v. Henderson, 840 So.2d 1167 (Fla. 2d DCA 2003), Mr. and Mrs. Jacob filed a personal injury action against a Hillsborough county sheriff after Mrs. Jacob claimed she was struck by the side-view mirror of a patrol car while she was a pedestrian. There, Mrs. Jacob’s deposition testimony was in conflict with clandestine adverse videotapes. The trial court found the discrepancies between the claim and the tapes constituted fraud and dismissed her case with prejudice. See id. at 1168.

In reversing the trial court’s order, the Second District explained:

Viewing the facts before this court, Mrs. Jacob either knowingly perpetrated a fraud, exaggerated her injuries, or unknowingly provided video evidence that her injuries are far less severe than she may believe. Only the first of these three possibilities would support the dismissal of all claims with prejudice. See Baker v. Myers Tractor Servs., Inc., 765 So.2d 149 (Fla. 1st DCA 2000) (affirming dismissal because plaintiff knowingly, intentionally, and repeatedly concealed prior injuries to gain an unfair advantage in litigation). Trials result from factual disputes. In these disputes, the facts on one side are, at best, less true and, at worst, false or fraudulent. In nearly every intersection collision, there is only one person with the right of way. Is the fact that both drivers believe they had the right of way the result of fraud? If there are ten eyewitnesses to the collision and all agree driver A had the right of way, does that make driver B’s claim fraudulent and subject to dismissal?

Id. at 1169.

The Second District found that such evidence, taken alone, is not clear and convincing that Mrs. Jacob had “ ‘sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.’ Cox, 706 So.2d at 46 (quoting Aoude, 892 F.2d at 1118).” This court, in a recent case, has come to the same conclusion on facts similar to those in Jacob. See Amato v. Intindola, 854 So.2d 812 (Fla. 4th DCA 2003). In Amato, we recognized that dismissal is properly utilized where a party knowingly misleads the other party, thereby interfering with the other side’s ability to defend (or prosecute) by a knowing deception intended to prevent the essential discovery.

We conclude that, on the record, there is not a sufficient showing to conclude that Montgomery “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial systems’ ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Cox, 706 So.2d at 46 (quoting Aoude, 892 F.2d at 1118). The issues in question are, therefore, left for resolution by the jury.

Accordingly, the trial court’s order dismissing the two claims as a sanction is reversed, and the matter is remanded to the trial court.

WARNER and HAZOURI, JJ., concur.

      . This was apparently first argued in a motion for rehearing.


text:
    Lawrence Ray WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3325.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.

      Lawrence Ray Williams, in proper person.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and SHEVIN, JJ.
   PER CURIAM.

Affirmed. State v. Meister, 849 So.2d 1127 (Fla. 4th DCA 2003); Soto v. State, 711 So.2d 1275 (Fla. 4th DCA 1998); Wood v. State, 717 So.2d 617 (Fla. 1st DCA 1998); Jones v. State, 721 So.2d 320 (Fla. 2d DCA 1998).


text:
    George ESTEVEZ, Petitioner, v. James CROSBY, Secretary, Department of Corrections, Respondent.
    No. 4D03-1535.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    George Estevez, Century, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

George Estevez filed a petition alleging ineffective assistance of appellate counsel. We grant the petition, providing for a belated appeal limited to the issue of whether the trial court’s jury instruction regarding self-defense constituted fundamental error.

The defendant was charged with, and found guilty of, a single count of aggravated battery. His sole defense at trial was self-defense. The court instructed the jury-that his use of force against the victim was not justifiable if it were to find that the defendant was “attempting to commit, committing or escaping after the commission of aggravated battery.” See § 776.041(1), Fla. Stat. (2001). Defense counsel did not object to the instruction. However, the defendant argues that his appellate counsel should have raised this issue as fundamental error on direct appeal, and was ineffective when it failed to do so. We agree.

This instruction is to be given when the accused is charged with at least two offenses, the one for which the accused claims self-defense as well as a separate forcible felony. Giles v. State, 831 So.2d 1268 (Fla. 4th DCA 2002). To instruct the jury that the accused was not entitled to use force if he was attempting to commit, committing, or escaping after committing the only crime charged is circular, confusing, and in essence negates the defense. However, the fundamental nature of the error can only be determined upon a review of the full record. See Fair v. Crosby, 2003 WL 22400708, 858 So.2d 1103 (Fla. 4th DCA 2003) (granting petition alleging ineffective assistance of appellate counsel). See also Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001); Jones v. State, 656 So.2d 489 (Fla. 4th DCA 1995). Appellate counsel’s failure to raise the issue in the direct appeal undermines our confidence in the correctness of the result of that proceeding. Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (Fla.1984).

Accordingly, this opinion shall be filed with the lower tribunal and treated as the notice of belated appeal of the judgment and sentence entered on July 25, 2001. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedures shall run from the date of this opinion. If Petitioner qualifies for appointed counsel,, the trial court shall appoint counsel to represent him on appeal.

STEVENSON, SHAHOOD and MAY, JJ., concur.

      . Section 776.041, Fla. Stat. (2001), provides in pertinent part as follows:
      The justification described in the preceding sections of this chapter is not available to a person who:
      (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony[.]


text:
    John Wesley MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1415.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.

      Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin Kinney Zack, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Lewis v. State, 111 So.2d 452 (Fla. 4th DCA 2001); Mitchell v. State, 111 So.2d 596 (Fla. 3d DCA 2000).


text:
    Magdalena, FLOREZ, Appellant, v. The CITY OF MIAMI, Appellee.
    No. 3D02-3304.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Robert Rubinstein, Fort Lauderdale, and Kenneth S. Spiegelman, for appellant.
    Alejandro Vilarello, City Attorney, and Henry Hunnefeld and Regine Monestime, Assistant City Attorneys, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

We have for review an Order Denying Plaintiffs Motion to Reinstate. For the following reasons, we affirm.

Plaintiffs initial premises liability complaint was filed in November of 1996. On August 11, 1999, defendant City of Miami filed a motion for summary judgment, motion to dismiss, or in the alternative, motion for judgment on the pleadings, on the basis that plaintiff failed to provide the city with proper written notice pursuant to section 768.28, Florida Statutes (1995). The trial court granted the motion, with leave for plaintiff to amend her complaint to allege estoppel and/or waiver of notice. Plaintiff filed a fourth amended complaint, to which defendant moved to dismiss. Before that motion could be heard, plaintiff filed a fifth amended complaint, which was likewise met with a motion to dismiss. On April 27, 2000, the trial court entered an order striking the case from the trial calendar because defendant’s motion to dismiss had not been heard and the case was not at issue. In that order, the court stated that the case could only be re-noticed “after the case is at issue and in conformance with the Rules of Civil Procedure.”

The only record activity over the next two years arose from plaintiff setting the case for trial on multiple occasions, even though the motion to dismiss remained pending and the case was still not at issue. See Fla. R. Civ. P. 1.440(a). On August 6, 2002, the court, sua sponte, entered a motion, notice, and judgment of dismissal pursuant to Florida Rule of Civil Procedure Rule 1.420(e). Plaintiff filed a motion to reinstate the case. Plaintiff appeals from the denial of that motion.

As every action taken by plaintiff since April 27, 2000, was in violation of the court’s order striking the case, the trial court acted within its discretion in dismissing plaintiffs claim for failure to prosecute under Florida Rule of Civil Procedure Rule 1.420(e). To defeat a motion to dismiss for failure to prosecute, “it must be shown that there was affirmative record activity during this time by pleading or order which was reasonably calculated to advance the case toward resolution”. Kearney v. Ross, 743 So.2d 578, 580 (Fla. 4th DCA 1999) A trial court “has discretion to dismiss an action when the only record activity for the previous year was bad faith activity, which means activity that is ‘frivolous or clearly useless’ to further prosecute the case.” Ezell v. Century 21 of the Southeast, 615 So.2d 273, 274 (Fla. 5th DCA 1993) (quoting Anthony v. Schmitt, 557 So.2d 656, 662 (Fla. 2d DCA 1990)). Under these facts, the trial court did not abuse its discretion in finding that plaintiffs actions, which were in violation of a court order, did not constitute affirmative record activity that were reasonably calculated to advance the case toward resolution.

Affirmed.


author: KLEIN, J.

text:
    Jerome McCLELLION, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4837.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of a number of interrelated crimes which began in Dade County and ended in Broward County. The charges were tried together in Bro-ward, but the state’s proof showed that two of the crimes were committed entirely in Dade. We reverse those two convictions.

All of the charges arose out of a car theft and high speed chase. The original information, to which the appellant entered his plea of not guilty, stated that the two crimes involved in this appeal, aggravated assault and fleeing an accident, occurred in Dade County. After appellant entered his plea the information was amended to add an additional charge and to state that all of the crimes occurred in Broward County.

Appellant raised no objection to venue until he moved for a JOA, at the close of the state’s case, on the ground that the state’s proof demonstrated that two of the crimes occurred in Dade County. The trial court denied the motion, but granted the state’s motion to amend the information to reflect that the two crimes occurred in Dade County. Appellant contends that, because the state failed to prove venue in Broward County, his convictions must be reversed. The state responds that venue was waived.

Article I, Section 16(a) of the Florida Constitution (1968) provides:

In all criminal prosecutions the accused shall .... have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties the trial will take place.

In addition to the exception contained in the constitution, numerous other exceptions are spelled out in Chapter 910, Florida Statutes, but none of them are applicable in this case.

In order to obtain a conviction, the state must prove venue. Croft v. State, 139 Fla. 711, 191 So. 34 (1939); Pennick v. State, 453 So.2d 542 (Fla. 3d DCA 1984). Venue is not an element of the charged crime, however, and need not be proved beyond a reasonable doubt. It is sufficient if the jury can reasonably infer from the evidence that the crime was committed in the county in which the defendant was charged. Pennick; State v. Crider, 625 So.2d 957 (Fla. 5th DCA 1993).

Venue is not a jurisdictional prerequisite and does not affect the power of a court to hear a case, but is a privilege which may be waived. Tucker v. State, 459 So.2d 306, 308 (Fla.1984) (quoting Lane v. State, 388 So.2d 1022, 1026 (Fla.1980)). A plea of guilty in one county, where the information shows that the crime occurred in a different county, waives the venue privilege. Dean v. State, 414 So.2d 1096 (Fla. 2d DCA 1982).

The state’s argument that the appellant waived venue is premised on cases allowing amendment of an information during trial where there is no prejudice to the defendant. State v. Anderson, 537 So.2d 1373 (Fla.1989). The problem in this case, however, is one of proof. As our supreme court observed in dicta in Tucker v. State, 459 So.2d 306, 308 (Fla.1984):

Had Tucker been able to show that the crime of which he was convicted was not committed in Dade County, or that the prosecution had not presented sufficient proof that the crime occurred in the county where the trial was held, the conviction clearly could not stand.

This is not a case in which the crime actually occurred in the county in which the defendant was tried, and the state merely neglected to prove venue. Under those circumstances, the trial court would have the discretion to allow the state to reopen its case. Dees v. State, 357 So.2d 491 (Fla. 1st DCA 1978). In this case, the evidence showed that the crime occurred in Dade County. This failure to prove venue cannot be corrected by either amending the information or putting on additional evidence.

Although we conclude that the appellant did not waive the venue problem by waiting until close of the state’s case to raise it, we are not condoning this tactic. Clearly a defendant could have waived the venue problem by agreeing to a trial of all of the crimes in Broward County, and if the state had been forthright in approaching the problem in that manner, it might not now find itself in this position. As we noted at the beginning of the opinion, the original information stated that these two crimes occurred in Dade County, but after appellant pled not guilty, the state amended the information to allege that they all occurred in Broward County. Under these circumstances, we are not sympathetic to the waiver argument.

The next question we must address is the remedy. In Longo v. State, 580 So.2d 212 (Fla. 4th DCA 1991), the defendant was convicted of thirty-three counts of grand theft in Broward County. We reversed four of those, based on lack of venue, because the proof showed they occurred solely in Palm Beach County, and reversed for a judgment of acquittal. In at least three cases, however, our supreme court has held that the remedy for failure to prove venue is a reversal for a new trial. Powell v. State, 132 Fla. 659, 181 So. 901 (1938); McKinnie v, State, 44 Fla. 143, 32 So. 786 (1902); Warrace v. State, 27 Fla. 362, 8 So. 748 (1891). Longo is not binding precedent in light of these decisions.

Appellant apparently recognizes that the proper remedy is a new trial, as that is the relief he is requesting; however, he overlooks the fact that venue for these two crimes lies only in Dade County, which precludes a new trial in Broward County. We accordingly limit our relief to remanding for the convictions for aggravated assault and fleeing an accident to be vacated.

Reversed.

POLEN and STEVENSON, JJ., concur.

      . Some courts, including this one, have suggested in dicta that venue is an essential element of a charged crime. Brown v. State, 728 So.2d 335, 336 (Fla. 4th DCA 1999); Mosley v. State, 842 So.2d 855, 857 (Fla. 1st DCA 2002). Since our supreme court has held that venue need not be proved beyond a reasonable doubt, Croft, it follows that venue is not an element of the crime. See Pennick v. State, 453 So.2d at 543 ("unlike essential elements of the crime, venue need not be proved beyond a reasonable doubt”); See Crider, 625 So.2d at 959 (same).

      . We deduce from Powell, McKinnie and War-race, which reversed convictions, where there was no proof of venue, for new trials, that double jeopardy would not preclude appellant from being tried in Dade County.


text:
    Josaphat J. CELESTIN, Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.
    No. 3D02-2542.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.

      J. Wil Morris, for appellant.
    Charles J. Crist, Jr., Attorney General, and John J. Rimes, III, Senior Assistant Attorney General (Tallahassee), for appel-lee.
    Before GERSTEN, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Josaphat Celestin (“Celestin”) appeals the Florida Elections Commission’s (“FEC”) order imposing monetary sanctions for campaign funds and/or accounting violations. Celestin does not dispute that there were errors in his campaign report. Instead, he alleges that his conduct was not willful and that the FEC erred in failing to consider his financial condition before imposing monetary sanctions against him. We affirm in part, and reverse and remand in part.

Celestin acted as his own campaign treasurer and does not dispute that his conduct does not comply with the requirements of Chapter 106, Florida Statutes (1999). Therefore, we need not go into detail as to the underlying charges against him. We accept the FEC’s findings of fact and affirm the FEC’s order finding that Celestin willfully violated Chapter 106. See § 106.37 Fla. Stat. (1999) ; Pasquale v. Florida Elections Comm’n, 759 So.2d 23 (Fla. 4th DCA 2000).

While we conclude that the FEC properly found that Celestin violated chapter 106, we find their sanction was inappropriate. Celestin alleges that he was not given the opportunity to offer mitigating circumstances, i.e., his financial affidavit, at the informal hearing he requested before the FEC. The FEC imposed a $15,000.00 fine, for his violations of Chapter 106. However, there is nothing in the record to indicate how the FEC came up with this particular amount.

It appears that instead of establishing the gravity of each act or omission and then determining a fine for each count, the FEC elected to impose a general fine. This was error. See McGann v. Florida Elections Comm’n, 803 So.2d 763 (Fla. 1st DCA 2001); § 106.265(l)(a) Fla. Stat. (1999).

Section 106.265 lists several factors to be considered regarding the setting of fines. One of the factors to be considered is the gravity of the act or omission. See § 106.265(l)(a) Fla. Stat. (1999). Another factor to be considered is the appropriateness of such a penalty to the financial resources of the person. See § 106.265(l)(c), Fla. Stat. (1999); Diaz de la Portilla v. Florida Elections Comm’n, 2003 WL 22082173 (Fla. 3d DCA September 10, 2003).

Here, Celestin’s financial situation was not taken into consideration and there is nothing in the record to indicate that this was an appropriate sanction. Therefore, we conclude there must be a new hearing on the issue of the penalty. Accordingly, we reverse and remand for a new hearing, with instructions for the FEC to take into account Celestin’s financial situation.

Affirmed in part, and reversed and remanded in part.

      . Under Section 106.37, a person willfully violates a provision of this chapter if the person commits an act while knowing that, or showing reckless disregard for whether, the act is prohibited under this chapter, or does not commit an act while knowing that, or showing reckless disregard for whether, the act is required under this chapter. A person knows that an act is prohibited or required if the person is aware of the provision of this chapter which prohibits or requires the act, understands the meaning of that provision, and performs the act that is prohibited or fails to perform the act that is required. A person shows reckless disregard for whether an act is prohibited or required under this chapter if the person wholly disregards the law without making any reasonable effort to determine whether the act would constitute a violation of this chapter. § 106.37, Fla. Stat. (1999)(Emphasis added).


text:
    Warren SALOMON, Appellant, v. The CITY OF MIAMI, Appellee.
    No. 3D03-793.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Warren Salomon, in proper person.
    Alejandro Vilarello, City Attorney, and Warren Bittner and Regine Monestime, Assistant City Attorneys, for appellee.
    Before COPE, LEVY and FLETCHER, JJ.
   PER CURIAM.

Appellant Warren Salomon appeals an adverse summary judgment in his suit against the City of Miami. We affirm.

Appellant sued seeking to determine the ownership of a piece of land at the boundary of his property. After completion of discovery, both parties moved for summary judgment and, by agreement of the parties, the trial court appointed a special master to conduct a hearing on both motions. A hearing was held before the special master. A master’s report was issued and filed with the trial court, recommending that appellant’s motion be denied and the City’s motion be granted. Appellant filed exceptions to the report.

Three months later, before the trial court heard argument on the exceptions, appellant filed a notice of voluntary dismissal. The City moved to strike the dismissal and the court granted the motion. Thereafter, the trial court heard appellant’s exceptions to the report, overruled them, and granted final summary judgment in favor of the City. Appellant has appealed.

Appellant argues that the trial court erred when it set aside the voluntary dismissal. Florida Rule of Civil Procedure 1.420(a)(1) provides in pertinent part that “an action may be dismissed by plaintiff without order of court (A) before trial by serving ... a notice of dismissal at any time before a hearing on motion for summary judgment....” Appellant argues that the special master’s hearing on the motion for summary judgment does not count as a summary judgment hearing for purposes of Rule 1.420(a). We disagree and conclude that the special master’s hearing in this case is properly viewed as a summary judgment hearing as contemplated by Rule 1.420(a)(1), especially where the special master was appointed for this purpose on joint motion of the parties. Since the motion for summary judgment was argued before the notice of voluntary dismissal was filed, the trial court was correct in setting aside the voluntary dismissal and entering summary judgment. See Stonely v. Moore, 851 So.2d 905 (Fla. 3d DCA 2003).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Jimmy SMITH, Appellee.
    No. 3D03-989.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Charles J. Crist, Jr., Attorney General, and Mark Rosenblatt (Ft. Lauderdale), Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellee.
    Before GREEN, SHEVIN and WELLS, JJ.
   PER CURIAM.

Affirmed. See §§ 924.051(l)(b), .051(3), Fla. Stat. (2002).


text:
    Eutiquio ELOY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-325.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.

      Bennett H. Brrnnmer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

Affirmed. Reyes v. State, 700 So.2d 458 (Fla. 4th DCA 1997).


text:
    Ben Arthur SMITH, a/k/a Kenneth Smith, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1703.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Ben Arthur Smith, in proper person.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, (Ft. Lauderdale), for appel-lee.
    Before SCHWARTZ, C.J., and GREEN, and WELLS, JJ.
   PER CURIAM.

Ben Arthur Smith appeals from an order striking his Rule 3.800 motion for lack of jurisdiction. We reverse.

As the State properly concedes, the pen-dency of Smith’s appeal from denial of an earlier filed Rule 3.850 motion did not deprive the court below of jurisdiction to consider the instant 3.800 motion which raised unrelated grounds. See Fla.R.Crim. P. 3.800; McFarland v. State, 808 So.2d 274 (Fla. 1st DCA 2002); Hines v. State, 714 So.2d 605, 606 (Fla. 4th DCA 1998); Montague v. State, 710 So.2d 228, 229 (Fla. 2d DCA 1998); Bates v. State, 704 So.2d 562, 563 (Fla. 1st DCA 1997).

Accordingly, the order striking Smith’s May 9, 2003 Rule 3.800 motion is reversed with this matter remanded for consideration of that motion on the merits.


text:
    A.B., Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-826.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.

      Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

A.B. appeals the trial court’s order requiring him to pay $255 in restitution as a result of his conviction for grand theft and burglary of an automobile. A.B. further appeals the trial court’s order adjudicating him delinquent and placing him on probation. We affirm and remand with instructions.

First, we find that the record is clear that A.B. was in possession of the stolen automobile when the steering column was broken. Thus, upon conviction of grand theft of that automobile, the trial court was correct in ordering A.B. to pay the $255.00 in restitution. Accordingly, the trial court’s restitution order is affirmed. See J.S.H. v. State, 472 So.2d 737 (Fla.1985) and A.G. v. State, 718 So.2d 854 (Fla. 4th DCA 1998).

Second, with respect to the adjudication of delinquency, the State having no objection, we remand this case so that the trial court can enter a corrected adjudicatory order, indicating that A.B. was acquitted on count three. The trial court is also to enter a separate disposition order for each offense, specifying the degree of the offense and limiting the sentence to the statutory maximum. See Fla. R. Juv. P. 8.115(c)(2).

Affirmed and remanded with instructions.


text:
    Alberto URRUCHURTU, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1229.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Alberto Urruchurtu, in proper person.

      Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, SHEVIN, and WELLS, JJ.
   PER CURIAM.

The order under review is affirmed. See § 898.135(l)(j), Fla. Stat. (2000). The defendant was charged with, and ultimately convicted of and sentenced for, a crime that he committed on June 20, 2001. That crime and the minimum mandatory sentence that it carried, were first created by chapter 2000-320, section 4, Laws of Florida, page 3497 and became effective October 1, 2000. This amendment was not part of chapter 99-188, Laws of Florida but added entirely new provisions to section 893.135 and thus was not affected by any infirmity in chapter 99-188, by the decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), or by enactment of chapter 2002-212, Laws of Florida.


author: RAMIREZ, J.

text:
    Olga SOROCKA, etc., et al., Appellants, v. Patrick SEVERE, Appellee.
    No. 3D02-3437.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Chamblee, Johnson & Haynes and Matthew E. Haynes, Jupiter, for appellant.
    Sellars, Marion & Bachi, and Bard D. Rockenbach, West Palm Beach, for appel-lee.
    Before LEVY, and RAMIREZ, JJ., and NESBITT, Senior Judge.
   RAMIREZ, J.

This is an appeal of an order that enforces a settlement agreement and enters final summary judgment. Because the acceptance of the offer did not mirror the offer as made, we reverse.

In 2001, appellants Olga Sorocka, Walter Sorocka, and Kristina Sorocka were injured in an automobile accident. A month later, their attorney sent a letter to Ams-tar Insurance Company, appellee Patrick Severe’s insurance carrier in which the Sorockas offered to settle the bodily injury claims for $20,000.00, the limit on Severe’s insurance policy. They also stated that they had a property damage claim for $750.00 for lost property. The demand contained a certain time and date within which it had to be accepted, and the documents and checks delivered. Amstar timely delivered a release and checks that totaled $20,000.00, but they never accepted nor paid for the property damage.

Amstar argues on appeal that they were free to settle the bodily injury claim and leave open the property damage aspect of the claim, simply because the So-rockas’ offer did not specify that both claims had to be accepted. We cannot agree that the settlement of only one aspect of a claim constitutes a full settlement.

An acceptance is effective to create a contract only if it is absolute and unconditional, and identical with the terms of the offer. See Giovo v. McDonald, 791 So.2d 38, 40 (Fla. 2d DCA 2001); Ribich v. Evergreen Sales & Serv., Inc., 784 So.2d 1201 (Fla. 2d DCA 2001). In other words, an acceptance must contain an assent to the same matters contained in the offer. See Lickert v. Pike, 736 So.2d 724 (Fla. 2d DCA 1999). See also Mejer-Kondla v. Douglas Centre, Inc., 701 So.2d 126 (Fla. 3d DCA 1997) (reversing because the trial court improperly found a settlement agreement when there remained material differences regarding the essential elements of the proposed agreement); Metropolitan Dade County v. Estate of Hernandez, 591 So.2d 1124 (Fla. 3d DCA 1992); Theocles v. Lytras, 518 So.2d 936 (Fla. 3d DCA 1987); Gaines v. Nortrust Realty Mgmt., Inc., 422 So.2d 1037 (Fla. 3d DCA 1982). And see Cheverie v. Geisser, 783 So.2d 1115, 1119 (Fla. 4th DCA 2001) (“Generally, the acceptance of an offer which results in a contract must be absolute and unconditional, identical with the terms of the offer, and in the mode, at the place, and within the time expressly or impliedly stated within the offer. Thus, ‘[an] acceptance must contain an assent to the same matters contained in the offer.’ ” (citation omitted)).

We stated in DiMase v. Aquamar 176, Inc., 835 So.2d 1150, 1157 (Fla. 3d DCA), reh. granted, 835 So.2d 1158 (Fla. 3d DCA 2003) that “what is an ‘essential term’ must be evaluated on a case-by-case basis.” Here, the Sorockas only had two claims, one for personal injury and the other for property damage. We fail to see how one of those claims is not an “essential term” to the Sorockas’ offer. Amstar cannot pick off Sorockas’ claims individually, settling one aspect of the case, then leave them to file suit in small claims court for their other claim. See Giovo, supra (holding that an acceptance that did not agree to the rental car portion of a claim did not constitute a settlement).

Reversed and remanded.


text:
    J.M.P.U., Appellant, v. The STATE of Florida and Department of Children and Family Services, Appellee.
    No. 3D03-463.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.

      Douthit & Murray, and Marc Douthit, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General; and Calianne P. Lantz, for appel-lee.
    Before GERSTEN, RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

This is an appeal from the trial court’s Order of Contempt, finding appellant J.M.P.U in indirect criminal contempt and sentencing him to ninety days in jail. We quash the trial court’s Order of Contempt. The record reflects that J.M.P.U. was not given specifics as to the acts which constituted the alleged contempt. In addition, there was no information in the Rule to Show Cause informing J.M.P.U. that he was subject to possible criminal penalties. The Rule to Show Cause thus does not meet the procedural requirements of Florida Rule of Criminal Procedure 3.840. See Fla. R.Crim. P. 3.840; Bowen v. Bowen, 471 So.2d 1274 (Fla.1985) (indirect criminal contempt proceeding must fully comply with rule 3.840 and defendants are entitled to due process protections); Kersh v. State Farm, Fire & Cas. Co., 686 So.2d 782 (Fla. 3d DCA 1997) (defendant must be afforded notice of the charge, the specifics as to what conduct constituted the alleged contempt, and a hearing); Pryor v. Wille, 644 So.2d 346 (Fla. 4th DCA 1994) (order for indirect criminal contempt quashed when trial court failed to comply with rule 3.840); Benarroch v. Crawford, 516 So.2d 28, 29 (Fla. 3d DCA 1987) (“[T]he petitioner was denied procedural due process in this case because Fla. R.Crim. P. 3.840, which governs indirect criminal contempt, was not followed in any respect by the trial court below.”).


text:
    Tarence TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2758.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Tarence Taylor, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Rollins v. State, 707 So.2d 823 (Fla. 3d DCA 1998).


author: GROSS, J.

text:
    Gene William BOYLE, Petitioner, v. Yolanda R. BUCK, as Personal Representative of the Estate of Billy Lacy Buck, deceased, Respondent.
    No. 4D03-4134.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.

      Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for petitioner.
    No brief filed for respondent.
   GROSS, J.

This case involves the review of an order in a civil case compelling production of a car for inspection, over a defendant’s assertion of the privilege against self-incrimination. We deny the petition because the privilege does not apply to an object, such as a car, which does not involve testimony or communications.

Petitioner, Gene William Boyle, is a defendant in two lawsuits arising from a crash where his Porsche struck and killed a motorcyclist. In a criminal case, the state has charged him with leaving the scene of an accident involving a death. In a civil case, the victim’s family has filed a wrongful death action.

The plaintiffs in the civil case sought to inspect Boyle’s Porsche. The state had filed the criminal case without locating the car. According to the probable cause affidavit, the police identified the Porsche through a speciality license tag, located the repair shop where it had been taken in the past, and obtained information indicating that Boyle was the car’s owner and its driver at the time of the crash.

On October 20, 2003, the judge in the civil case overruled Boyle’s objection to the production of his car for inspection, which raised the Fifth Amendment privilege against self-incrimination. Boyle seeks certiorari review of this order.

Certiorari will he to review an order compelling discovery in a civil case over an objection that the order violates the Fifth Amendment privilege against self-incrimination. See, e.g., Magid v. Winter, 654 So.2d 1037 (Fla. 4th DCA 1995). The reviewing court must determine whether the trial court’s discovery order departed from the essential requirements of law resulting in irreparable harm to the petitioner.

The Fifth Amendment to the United States Constitution provides in pertinent part that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V; see also Art. I, § 9, Fla. Const. This protection exists primarily to “assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action.” Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975).

One aspect of the privilege against self-incrimination is a witness’s right in a civil proceeding to refuse to respond to a question on the grounds that his answer may tend to incriminate him. See Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); DeLisi v. Bankers Ins. Co., 436 So.2d 1099, 1101 (Fla. 4th DCA 1983).

During discovery in a civil ease, a litigant may assert the Fifth Amendment privilege when the litigant has reasonable grounds to believe that the response to a discovery request would furnish a link in the chain of evidence needed to prove a crime against the litigant. See Magid, 654 So.2d at 1038-39; see also Pillsbury Co. v. Conboy, 459 U.S. 248, 266 n. 1, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) (holding that a witness is entitled to invoke the Fifth Amendment privilege whenever there is a realistic possibility that the answer to a question could be used in any way to convict the witness of a crime or could aid in the development of other incriminating evidence that can be used at trial).

The Fifth Amendment privilege does not shield every kind of incriminating evidence. Rather, it protects only testimonial or communicative evidence, not real or physical evidence which is not testimonial or communicative in nature. See Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Thus, a person may be compelled to provide speech or writing exemplars, provided that “his speech or writing exemplars are not sought to disclose any knowledge that he might have.” St. George v. State, 564 So.2d 152, 154 (Fla. 5th DCA 1990) (citing United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)).

Florida courts have required disclosure of various types of non-testimonial evidence over a Fifth Amendment objection. See, e.g., Gorby v. State, 630 So.2d 544 (Fla.1993) (tattoos); Macias v. State, 515 So.2d 206 (Fla.1987) (voice exemplars); Wyche v. State, 536 So.2d 272 (Fla. 3d DCA 1988) (fingerprinting); Doe v. State, 409 So.2d 25 (Fla. 1st DCA 1981) (bullet removal); State v. Esperti, 220 So.2d 416 (Fla. 2d DCA 1969) (presence of nitrates— powder burns on hands).

The order requiring production of the Porsche does not require the production of testimonial or communicative evidence. Therefore, it is not a departure from the essential requirements of law.

Boyle relies upon Burnette v. Stanton, 751 So.2d 728 (Fla. 5th DCA 2000), but that ease is distinguishable because it concerns testimonial evidence. Burnette involved a defendant in both a wrongful death civil suit and a manslaughter criminal prosecution. The fifth district applied the Fifth Amendment privilege to prevent the court in the civil suit from compelling the defendant to answer interrogatories about facts and witnesses supporting his affirmative defenses. Such discovery involved evidence of a testimonial or communicative nature, not a physical object such as the Porsche in this case.

Boyle also cites United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944), but that case offers no support to his challenge here. It concerned a claim of Fifth Amendment privilege invoked by an operating engineers union, in which the defendant was an officer. The Supreme Court said that to invoke the privilege, the papers and effects at issue must be the private property of the person claiming the privilege or in his possession in a purely personal capacity. That case offers no support for extending the fairly well defined parameters of the Fifth Amendment privilege beyond evidence which is testimonial or communicative in nature.

The petition for writ of certiorari is denied.

KLEIN and SHAHOOD, JJ., concur.


text:
    Delbridge EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4135.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2003.
    Nancy A. Daniels, Public Defender and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Charlie McCoy, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Delbridge Edwards, appeals the orders revoking probation in two separate cases. We conclude that the trial court was without jurisdiction to revoke the appellant’s probation in case number 97-367, because he was no longer on probation for the offense in that case when the revocation process was set in motion. Accordingly, we reverse and remand with directions to vacate the order revoking probation and imposing the judgment and sentence in case number 97-367. Because the appellant’s arguments regarding the revocation in case number 97-832 are without merit, the order revoking probation in that case is affirmed.

Affirmed in Part and Reversed in Part.

BOOTH, DAVIS & PADOVANO, JJ., concur.