author: BROWNING, J.

text:
    PREMIER TRAVEL INTERNATIONAL, INC., Travelease International, Inc., d/b/a Travelez, Brylec, Inc., d/b/a Brylec Marketing, Brian Yamhure and Henry Yamhure, Appellants, v. STATE OF FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    Nos. 1D02-3107, 1D02-3108, 1D02-3109.
    District Court of Appeal of Florida, First District.
    July 17, 2003.

      Paul R. Ezatoff and Katherine E. Gid-dings, of Katz, Kutter, Alderman, Bryant & Yon, P.A., Tallahassee, for Appellant.
    William N. Graham and Raymond C. Conklin, Tallahassee, for Appellee.
   BROWNING, J.

These consolidated cases are appeals from three immediate final orders (IFOs) issued by the Department of Agriculture and Consumer Services (the Department) pursuant to section 120.60, Florida Statutes, requiring Appellants to cease and desist from acting as sellers of travel and sellers of business opportunities. Because the orders are facially insufficient, we reverse.

Premier Travel International, Inc. (Premier), is a travel agency that conducts “travel training” and seminars. Trave-lease International, Inc. (Travelease), is a sales and administrative company. Brylec, Inc., is a telemarketing company. All three businesses operate from 871 East Commercial Boulevard in Fort Lauder-dale. Either Henry Yamahure or his son, Bryan, owns the corporations.

On July 26, 2002, the Department filed a complaint and issued three IFOs. These documents, along with a later amended complaint, alleged that Appellants violated the Sellers of Travel Act and the Sellers of Business Opportunities Act by offering, in exchange for an investment of $6,000, travel agent training and services so that individuals could both receive discounted travel and sell travel to others. See §§ 559.80—559.815, 559.926—559.939, Fla. Stat. (2001). The first IFO suspended the seller-of-travel registration certificate of Premier, required Premier to cease operation as a seller of travel, and revoked Premier’s security reduction. The second IFO suspended the registration certificate of Travelease and required that it cease operation as a seller of travel. The third IFO required Appellants to stop selling business opportunities. These orders were stayed by three separate orders of this Court.

The IFOs in this case violate due process because they are facially insufficient. IFOs issued prior to a hearing, as these were, must contain facts sufficient to demonstrate immediate danger, necessity, and procedural fairness. See, e.g., Witmer v. Dep’t of Bus. and Prof'l Regulation, 631 So.2d 338 (Fla. 4th DCA 1994). These IFOs do not, on their face, demonstrate immediate danger, necessity, or procedural fairness.

A. Immediate threat to public health, safety, and welfare

Personal monetary losses can be the sort of danger addressed by section 120.60, Florida Statutes. See Stock v. Dep’t of Banking and Finance, 584 So.2d 112 (Fla. 5th DCA 1991) (affirming the emergency suspension of a securities license when a securities agent made eight unauthorized withdrawals from an individual’s money market account, totaling $64,970); Saviak v. Gunter, 375 So.2d 1080 (Fla. 1st DCA 1979) (affirming the emergency suspension of an insurance license when an agent withheld remittance of insurance premiums to the insurer, which resulted in cancellation of the insureds’ policies); Crudele v. Nelson, 698 So.2d 879 (Fla. 1st DCA 1997) (reversing an IFO that concerned related transactions between an insurance agent and one client, two years before, on the grounds that it did not demonstrate an emergency); Wolf v. Gallagher, 629 So.2d 1066 (Fla. 2d DCA 1994), (reversing an IFO, and distinguishing Saviak, in holding that no other member of the public was at risk from an insurance agent who failed to remit insurance premiums to two insurance companies).

In determining whether to affirm or reverse such an IFO, courts consider whether the pattern of conduct is likely to continue. In Saviak, this Court emphasized that the allegations reflected the continuing nature of the offense. Saviak, 375 So.2d at 1082. In Stock, the Fifth District noted that a sufficiently egregious past harm may justify an emergency order, particularly if it is “of a nature likely to be repeated.” Stock, 684 So.2d at 115. However, in Crudele, this Court found that “the Commissioner sets forth no factual findings of a continuing pattern of conduct that must be stopped in order to prevent further harm to the public” and “no allegations or findings in the order suggest anything in Crudele’s history as a licensed agent that would support an inference of such continuing conduct.” Crudele, 698 So.2d at 880. And in Wolf, the Second District held that there was no allegation of danger to the public health, safety, and welfare because “nothing in the order indicates that any insured or other member of the public is at risk....” Wolf, 629 So.2d at 1067.

In the instant case, the IFOs do not indicate that the alleged conduct is likely to continue. The allegations of emergency were stated as follows in the first two orders:

It is concluded that the continued registration of Respondent poses an immediate serious danger to the public safety or welfare of unwary and unsuspecting consumers who purchase travel services from Respondent as said consumers may be unaware of Respondent’s fraudulent dealings. An EMERGENCY ORDER OF SUSPENSION is required pursuant to Section 120.60(6), Florida Statutes. If the Department does not suspend the license of Respondent, Florida consumers, and in particular the senior citizens of this State, will suffer financial losses including the loss of retirement funds and/or investments, will be exposed to the fraudulent offering of travel related services, will be fraudulently deprived of their property and the right to benefit therefrom, and will be exposed to being taken advantage of by reason of their age and infirmities.

Similar allegations of emergency were made in the third order, which reads:

It is concluded that the continued operations of Respondents poses [sic] an immediate serious danger to the public safety or welfare of unwary and unsuspecting consumers who purchase business opportunities from Respondents as said consumers may be unaware of Respondents’ activities as alleged here-in. An IMMEDIATE FINAL CEASE AND DESIST ORDER is required pursuant to section 120.60(6), Florida Statutes.
If the Department does not issue the immediate final cease and desist order against Respondents, Florida buyers (and in particular those that are senior citizens of this State), will suffer financial losses including the loss of retirement funds and/or investments, will be exposed to the fraudulent offering for sale of business opportunities, will be fraudulently deprived of their property and the right to benefit therefrom, and will be exposed to being taken advantage of by reason of their age and infirmities.

The orders at issue in the instant case may have been intended to demonstrate that the harm inflicted by Appellants is of a nature that is likely to continue, through allegations that numerous customers were treated poorly and that Appellants attract customers by making phone calls and by representing that “[w]e are a full-service member based Travel Agency offering every aspect of TRAVEL and we offer you benefits that you can NOT achieve on your own.” However, these allegations do not demonstrate that future customers are threatened with misconduct of the type suffered by the nine individuals whose experiences are detailed in the orders. The allegations demonstrate only that Appellants welcome more legitimate business. The allegations that Appellants are involved in a “systematic course of conduct” are conclusory. Because the allegations in the IFOs do not demonstrate a likelihood of repetition, the IFOs are facially insufficient.

B. Necessity

There are no explicit allegations that the IFOs in the instant case are necessary. The closest such allegation is that “[i]f the Department does not suspend the license of Respondent [or “issue the immediate final cease and desist order against Respondents”], Florida consumers [or “buyers”], and in particular the senior citizens of this State, will suffer financial losses including the loss of retirement funds and/or investments, will be exposed to the fraudulent offering of travel related services, will be fraudulently deprived of their property and the right to benefit therefrom, and will be exposed to being taken advantage of by reason of their age and infirmities.” This allegation is insufficient to demonstrate that the IFOs were necessary.

As Appellants argue, the orders do not contain any factual allegations supporting the conclusion that the elderly population is at a greater risk from, or is more unwary and unsuspecting than other populations of, Appellants’ activities. Appellees’ arguments in its brief that loss of money to seniors is irreparable harm, that seniors may have more difficulty presenting their case in court, or that seniors are more susceptible to high-pressure sales tactics are not borne out in the orders. As they are written, the allegations in the orders do not justify the emergency shutdown because they do not demonstrate the level of urgency that would make the orders necessary. Cf. Tauber v. State Bd. of Osteopathic Medical Examiners, 362 So.2d 90, 92 (Fla. 4th DCA 1978) (holding that the immediate necessity of protecting human life necessitated an order revoking the physician’s license after the death of a patient); Lee Cty. v. South Florida Water Mgmt. Dist., 766 So.2d 1103 (Fla. 2d DCA 2000) (holding that the threat to the ecosystem of a lake necessitated its immediate drawdown despite the fact that years of mismanagement may have contributed to the crisis).

Stated another way, the orders do not explain why less harsh remedies, such as probation, a fine, or a notice of noncompliance, as listed in sections 559.813(2)(b) or 569.9355(1), Florida Statutes, or even a more narrowly tailored IFO, would be insufficient to stop the alleged harm of pitching an unavailable product by phone to seniors. Cf Cunningham v. Agency for Health Care Admin., 677 So.2d 61 (Fla. 1st DCA 1996) (holding that a more narrowly tailored IFO could have adequately addressed concerns that a doctor was engaged in a criminal enterprise, lacked medical knowledge, or could not deny drugs to a demanding patient); White Const. Co. Inc. v. State, Dep’t of Transp., 651 So.2d 1302, 1305 (Fla. 1st DCA 1995) (holding that the IFO, which stated that the narrowly tailored action of placing a limerock pit on conditional status in order to pretest the limerock for stability, rather than suspending or revoking approval of the mine, adequately demonstrated the necessity of the IFO).

C. Fairness

The IFOs issued in this case do not meet the fairness requirement. Such an order must be fair in two respects: the remedy must be tailored to address the harm, and the order must provide for an administrative hearing. See White Const., 651 So.2d at 1305. The instant IFOs are not sufficiently narrowly tailored to be fair. Rather than order Appellant to stop selling travel and business opportunities, the Department could have issued an order enjoining Appellants from advertising that customers could find better prices with them than through other sources, or enjoining them from ignoring the three-day contract review period. Cf. Anderson v. Dep’t of Health and Rehabilitative Servs., 482 So.2d 491 (Fla. 1st DCA) (holding that HRS could have issued a specific order to keep a husband out of the wife’s day-care center, rather than close the center, upon allegations of one unprosecuted incident of abuse by the husband years before), clarified on reh’g, 485 So.2d 849 (Fla. 1st DCA 1986). However, the Department issued orders suspending registration certificates and requiring Appellants to cease and desist, without demonstrating that such a drastic remedy was the only way to avoid future harm. This was error.

Because the three IFOs are facially insufficient, we REVERSE the IFOs.

KAHN and VAN NORTWICK, JJ., CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William David DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3740.
    District Court of Appeal of Florida, First District.
    July 17, 2003.
    Appellant, pro se.

      Charlie Crist, Attorney General and Elizabeth Fletcher Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, William Davis, appeals the denial of his rule 3.850 motion, which was based on alleged newly discovered evidence that defense counsel had failed to relay a plea offer to him. We reverse and remand the case due to a fatal procedural error on the rehearing motion; for this reason, we do not reach the merits of the appeal.

The motion was originally assigned to Judge Frederic Buttner, but Judge Buttner recused himself from the case by order of February 5, 2002. The motion was then assigned to Judge William Wilkes. Following an evidentiary hearing, Judge Wilkes denied the motion on July 26, 2002. On August 12, 2002, Davis filed a motion for rehearing. The motion was apparently assigned to Judge Buttner, although he had previously recused himself from Davis’ case. Judge Buttner entered an order denying rehearing on August 13, 2002. Davis argues on appeal that it was reversible error for a recused judge to rule on his motion for rehearing. We agree and reverse.

Once a trial judge recuses himself from a given case, any subsequent orders he enters in that case are void and have no effect. See Haverty v. State, 830 So.2d 264 (Fla. 5th DCA 2002); Thomas v. State, 756 So.2d 217 (Fla. 4th DCA 2000); Meaweather v. State, 732 So.2d 499, 500 (Fla. 1st DCA 1999); Weiss v. Miami Nat’l Bank, 320 So.2d 466 (Fla. 4th DCA 1975). In the instant case, Judge Buttner recused himself on February 5, 2002. He lacked authority to make any further rulings on the case after that date. The order denying Davis’ motion for rehearing some six months later is therefore a nullity. Thus, we are constrained to reverse, to assure that due process is afforded to Davis. The case is remanded with directions that the chief judge of the circuit appoint a different judge to consider and rule on Davis’ motion for rehearing. See Thomas, supra, at 217; Meaweather, supra, at 500; Haverty, supra, at 264; Stokes v. State, 756 So.2d 1100 (Fla. 4th DCA 2000).

Reversed and Remanded.

WEBSTER, PADOVANO and POLSTON, JJ., concur.


text:
    Renwick KEEL, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D02-3672.
    District Court of Appeal of Florida, First District.
    July 17, 2003.
    Renwick Keel, petitioner, pro se.
    William L. Camper, General Counsel, and Alexandria E. Walters, Assistant General Counsel, Florida Parole Commission, for respondent.
   PER CURIAM.

Renwick Keel seeks certiorari review of an order summarily denying his petition for writ of habeas corpus, in which he challenged the revocation of his conditional release supervision. We conclude that the petition contained allegations that, if true, might entitle Keel to relief, and thus agree with petitioner that the trial court erred in denying the petition without issuing an order to show cause. In addition, we conclude that the trial court erred in denying petitioner’s request for leave to amend his petition, which request was made prior to entry of the order denying relief.

Accordingly, the orders denying the petition for writ of habeas corpus and denying petitioner’s motion for leave to amend are hereby quashed. On remand, the trial court shall accept the amended petition for writ of habeas corpus, issue an order to show cause directing the filing of a response by the Florida Parole Commission, and upon the filing of that response and any reply thereto, further consider the merits of the arguments raised by petitioner.

PETITION FOR WRIT OF CERTIO-RARI GRANTED.

BENTON, PADOVANO and BROWNING, JJ., concur.


text:
    CITY OF JACKSONVILLE, Petitioner, v. INFINGER TRANSPORTATION COMPANY, INC., Florida Department of Transportation, and Jason L. Keiffer, Respondents.
    No. 1D03-115.
    District Court of Appeal of Florida, First District.
    July 17, 2003.
    Alan K. Ragan, Assistant General Counsel for City of Jacksonville, Jacksonville, for Petitioner.
    John A. DeVault, III, and R.H. Farnell, II, of Bedell, Dittmar, DeVault, Pillans & Coxe, Jacksonville, for Respondent Infinger Transportation Company, Inc.
   PER CURIAM.

DENIED. Travelers Indemnity Co. v. Fields, 262 So.2d 222 (Fla. 1st DCA 1972).

ERVIN, BARFIELD and ALLEN, JJ., concur.


text:
    Frederick L. SNELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0586.
    District Court of Appeal of Florida, First District.
    July 17, 2003.

      Frederick L. Snell, petitioner, pro se.
    Charles J. Crist, Jr., Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

By petition filed with this court in February 2003, Frederick L. Snell seeks a belated appeal of a September 28, 1998, order denying his motion to vacate sentence. Under the peculiar facts of this case, we grant the petition.

Snell was sentenced on September 9, 1998, and on September 14,1998, he filed a pro se motion to vacate sentence, seeking relief pursuant to Florida Rule of Criminal Procedure 3.850. One week later, he filed a second motion to vacate sentence. It appears that the trial court treated the second motion as a supplement to the first and denied relief through its order of September 28, 1998 (hereafter referred to as the “September 1998 order”). The following day, September 29, 1998, a timely notice of appeal directed to the underlying judgment and sentence was filed. Snell’s conviction and sentence were affirmed by this court and that decision was approved by the supreme court in Snell v. State, 752 So.2d 95 (Fla. 1st DCA 2000), approved, 777 So.2d 972 (Fla.2001). Mandate in the direct appeal ultimately issued on March 5, 2001.

According to petitioner’s sworn allegations, he was not timely furnished a copy of the September 1998 order and did not learn of its existence until after his direct appeal became final in March 2001. In the interim, unaware that his motions to vacate sentence had been disposed of, he filed a motion in March 1999 seeking to withdraw the motions without prejudice. By order of April 9, 1999, the trial court granted Snell’s request to withdraw the rule 3.850 motions he had filed in September 1998, but its order made no mention of the fact that those motions had already been denied. In support of his request that he now be granted a belated appeal of the September 1998 order, Snell points out that he did not receive that order until more than two years after the time for initiating an appeal had expired, and that the order did not advise him of his appellate rights as required by rule 3.850(g). He further asserts that he was misled by the April 1999 order, thereby frustrating his right to timely seek relief from this court.

Under Florida Rule of Appellate Procedure 9.141(c)(4)(A), a petition seeking belated appeal must generally be filed within two years after the time for filing the notice of appeal expires, and Snell’s petition in this case falls outside of this time period. However, the two year limitation may be overcome by a showing that the petitioner was not advised of his right to appeal and should not have ascertained the existence of that right by the exercise of due diligence. See Fla. R.App. P. 9.141(c)(4)(A)(i) and (ii). Here, Snell’s sworn allegations and the attachments to his petition establish that he was not advised of his right to appeal in the September 1998 order, and more importantly, he was unaware that any right to appeal had accrued until he received the order in March 2001. While in ordinary circumstances he likely would be faulted for not exercising due diligence to determine the disposition of his motions during the two year period contemplated by the rule, petitioner had no reason to make such an inquiry in this case because he believed that in accordance with the April 1999 order, he had been permitted to withdraw his motions to vacate sentence. Accordingly, we conclude that Snell has pled an adequate basis for avoiding the two year time limitation imposed by the rule. We further conclude that he otherwise timely sought relief to the extent his petition seeking belated appeal was filed within two years of his discovery of the existence of September 1998 order. Cf. Adams v. State, 543 So.2d 1244 (Fla.1989)(holding that a rule 3.850 motion based upon new facts or a significant change in the law must be filed within two years of the time such facts become known or such change is announced).

In response to our order to show cause why a belated appeal should not be granted, the state expresses skepticism concerning Snell’s claim that he did not receive the September 1998 order until nearly two and one-half years after its rendition, but it has not established a good faith basis for disputing petitioner’s factual allegations in this regard. See Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998). The state next asserts that Snell’s request for a belated appeal should be barred by the doctrine of laches, but this argument fails because the state has failed to articulate any actual prejudice it will suffer if a belated appeal is granted. See Bashlor v. Wainwright, 374 So.2d 546 (Fla. 1st DCA 1979); see also Nava v. State, 652 So.2d 1264 (Fla. 4th DCA 1995). Finally, we reject the state’s contention that Snell has already been afforded an appeal of the September 1998 order. The appeal to which the state refers in this regard concerned the denial of a motion for postcon-viction relief Snell filed in 2001. The fact that the trial court denied the 2001 motion as successive in light of the September 1998 order did not call the merits of that order up for review.

Accordingly, the petition seeking a belated appeal of the order of September 28, 1998, denying petitioner’s motion to vacate sentence in Clay County Circuit Court case number 97-1108-CF-A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION FOR BELATED APPEAL GRANTED.

ERVIN, PADOVANO and POLSTON, JJ., concur.


author: COBB, W., Sr. Judge.

text:
    William MATETZSCHK, Appellant/Cross-Appellee, v. Oscar LAMB, Appellee/Cross-Appellant.
    No. 5D02-455.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.

      Richard A. Sherman of Richard A. Sherman, P.A., Fort Lauderdale and Cymonie S. Rowe of Dickstein, Reynolds & Woods & Murasko, P.A., West Palm Beach, for Appellant/Cross-Appellee.
    Roy D. Wasson, Miami, and David J. Gorewitz, Melbourne, for Appellee/Cross-Appellant.
   ON MOTION FOR CERTIFICATION

COBB, W., Sr. Judge.

We treat Appellee’s motion for certification of conflict and certification of question of great public importance as a motion for rehearing and issue this corrected opinion. The issue raised by this appeal concerns the validity of two undifferentiated offers of judgment made by a plaintiff to two defendants, one of whom is allegedly hable only on a vicarious basis as a co-owner of a vehicle. The facts, as alleged below, are that the plaintiff, Oscar Lamb, rear-ended a stopped car and, in a chain reaction, was rear-ended by an automobile operated by the defendant, William Matetzschk, who then was in turn rear-ended by an automobile driven by his own wife, Margie Matetzschk, who was driving behind her husband. There is no allegation or other indication that the impact of Margie’s car with the rear of William’s car propelled it into the rear of Lamb’s vehicle for a second time.

Lamb brought suit against the Ma-tetzschks for his injuries sustained in the crash. The sole allegation against Margie Matetzschk was that she was “an owner of a vehicle causing Plaintiffs injuries and is therefore jointly and severally liable with William Matetzschk” for Lamb’s damages. Clearly, this is not an allegation of active negligence and apparently was based on the erroneous assumption that Margie was a co-owner of the vehicle William was driving.

During the course of litigation, Lamb offered two joint proposals for settlement to the Matetzschks, one for $15,000, dated July 19, 1999, and the second for $9,000, dated August 4, 1999. The offers, neither of which was accepted, were undifferentiated as between the two defendants. Subsequently, Lamb settled with Margie at mediation and proceeded with the case against William.

A third proposal of settlement in the amount of $6,000 was dated August 16, 2000, and directed to William Matetzschk, the sole remaining defendant. This proposal also expired without acceptance, and the case proceeded to jury trial, resulting in a verdict of $73,108. As a result of this verdict (which exceeded any of the three settlement proposals by more than 25%), the trial court conducted two hearings: at the first, the parties stipulated that Lamb was entitled to an attorney fee; at the second, William disputed the validity of the first two offers in 1999 on the basis that they were undifferentiated as to the two party defendants, but the trial court ruled that this argument was waived because it was not raised in the first hearing. The trial court then awarded attorney fees to Lamb’s counsel based upon the first proposal of settlement dated July 19, 1999. This appeal ensued.

The first issue raised on appeal is whether the trial court erred by utilizing the first offer of judgment, dated July 19, 1999, as fixing the inception date for attorney fees rather than the date of the last offer, August 16, 2000, at which time there was no issue as to differentiation since only one party defendant then remained in the suit.

At the inception of our consideration of the central issue concerning the validity of undifferentiated offers, we address the trial court’s determination that William Matetzschk waived his objection to the earlier offers of judgment because he did not raise it at the first post-verdict hearing. This determination by the trial court was incorrect because a party may object to an interlocutory ruling at any time prior to a final judgment. See Whitlock v. Drazinic, 622 So.2d 142 (Fla. 5th DCA 1993). Moreover, the record clearly indicates that at the first hearing on attorney fees, William Matetzschk only stipulated that Lamb was entitled to an attorney fee, but the amount of that fee was to be determined at a later date. Nowhere in the record does it indicate that William Matetzschk stipulated that Lamb was entitled to an attorney fee based on either of the two earlier proposals, and, indeed, the order emanating from the first hearing refers to an agreement on a single “Proposal for Settlement,” not an agreement as to all three proposals.

There is case precedent in this district in regard to undifferentiated offers of judgment. In Spruce Creek Development Co. of Ocala, Inc. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999), disapproved of by Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 2003 WL 1089304 (Fla.2003), we held that a single and undifferentiated offer of an injured driver and her husband, who brought a claim for lack of consortium, was not void under the offer of judgment statute (section 768.79, Florida Statutes) on the basis that the lack of apportionment between the claimants was a matter of indifference to the defendant, who would be entitled to a release by both claimants upon his acceptance of their offer. Spruce Creek has now been expressly disapproved with respect to this point by the recent opinion of the Florida Supreme Court in Willis Shaw. Therein, the opinion of Justice Wells emphasized the language of Florida Rule of Civil Procedure 1.442(c)(3), which implements section 768.79: “A joint proposal shall state the amount and terms attributable to each party.”

We believe the language of Willis Shaw is applicable whether the offer emanates from joint plaintiffs or is directed to joint defendants. Hence, Willis Shaw implicitly rejects our prior opinion in Strahan v. Gauldin, 756 So.2d 158 (Fla. 5th DCA 2000), which concerned one allegedly negligent tortfeasor and several parties whose liability was alleged on a vicarious basis. We recognize that our instant opinion conflicts with Barnes v. The Kellogg Co., 846 So.2d 568 (Fla. 2d DCA 2008), which held that an undifferentiated offer of settlement from a plaintiff to two defendants, one of whom was only vicariously liable, was proper. Until Willis Shaw, we shared that view. However, in addition to the explicit language of the rule and Willis Shaw, there is a logical basis for requiring differentiated offers of settlement, even in cases of alleged vicarious liability.

As Barnes correctly observed, it may be impossible to apportion fault among parties who are jointly and severally liable when the basis of at least one party’s liability is purely vicarious. However, that observation presupposes that vicarious liability is not a disputed issue. It may be, and this case provides a prime example. Lamb’s complaint alleged that Margie’s liability was purely vicarious as a co-owner of the vehicle. As discovery later demonstrated, that allegation could not be supported; Margie apparently was not a co-owner of the vehicle and therefore, had no vicarious liability for her husband’s negligent operation of his vehicle. If we were to follow Barnes, Margie would have been required either to reject Lamb’s offer or pay it entirely. We think such a result is inconsistent with the purpose and language of the rule. In many cases, the issue of vicarious liability is disputed and the party against whom it is asserted should have a right to settle an advance claim based upon that party’s individual evaluation of many factors, including damages and the likelihood that a fact finder might find that party to be vicariously liable.

Moreover, the settlement value of a claim is impacted by the financial responsibility of a party defendant, whether that party’s liability is direct or vicarious. For example, a defendant who is directly liable may be penniless and bankrupt, and a claim against him virtually worthless, whereas the vicariously liable defendant in the same action may be wealthy and any claim against the latter quite valuable.

We thus reverse the attorney fee award below and remand for a determination based upon the third offer of judgment dated August 16, 2000. In view of such reversal we decline, at this time, to address the argument of William Ma-tetzschk directed to the excessiveness of the fee. We do note, however, and disapprove the following language of the trial court:

The court also holds that but for the decision of ALLSTATE INS. CO. V. SARKIS, Case No. 5D00-2217[, 809 So.2d 6,] (Fla.App. 5 Dist.2001), the Court would grant a contingency fee multiplier in an amount ranging from 1.5 to 2.0 on the attorney fee issue.
Even absent the Sarkis opinion, there is absolutely no legal basis under Rowe or Quanstrom for the application of a multiplier in this case, a rear-end collision with a financially responsible defendant. Any tort lawyer in Brevard County would have taken this case, and counsel for Lamb has not contended otherwise, either in his written brief or at oral argument when confronted with this question. It is not the law, as contended by counsel for Lamb at oral argument, that the delay inherent in the nature of contingency fees justifies imposition of a multiplier. We certify conflict with Barnes.

REVERSED and REMANDED.

THOMPSON and ORFINGER, JJ., concur.

      . See § 768.79, Fla. Stat. (1997); Fla. R. Civ. P. 1.442.

      . Allstate Ins. Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001).

      . Fla. Patient's Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985).

      . Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990).


text:
    Elvis Doyle FUNDERBURK, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1964.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.
    Elvis Doyle Funderburk, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of Elvis Doyle Funderburk’s motion pursuant to Florida Rule of Criminal Procedure 3.800(a) in accord with Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), but again certify conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003).

AFFIRMED.

PETERSON, GRIFFIN and TORPY, JJ., concur.


text:
    Larry EDGEMON, Petitioner, v. CIRCUIT COURT, FIFTH JUDICIAL CIRCUIT, etc., Respondent.
    No. 5D03-1875.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.
    Larry Edgemon, Jacksonville, Pro Se.
    No Appearance for Respondent.
   PER CURIAM.

We elect to treat the petition filed with this court as an appeal from the denial of mandamus relief by the lower court and affirm.

AFFIRMED. See Roesch v. State, 683 So.2d 1 (Fla.1993).

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

      . See Fla. R.App. P. 9.040(c).


text:
    Robert E.H. CARLISLE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-1529.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.
    Robert E.H. Carlisle, Polk City, pro se.
    No appearance for Respondent.
   PER CURIAM.

This successive petition alleging ineffective assistance of appellate counsel creates another one of our “enough is enough” cases. After a jury trial, Robert E.H. Carlisle was convicted of burglary of a dwelling and sentenced as an habitual felony offender. He appealed, raising eight issues. This court affirmed his conviction and sentence on appeal in Carlisle v. State, 736 So.2d 1203 (Fla. 5th DCA 1999). He then began attacking his conviction and sentence collaterally.

In his current petition, Carlisle again argues some, if not all, of his trial and appellate attorneys were ineffective because his missing wife was not served with a subpoena to testify at his trial. Because the trial court had previously resolved the factual issue of the subpoena against him, that he previously and unsuccessfully raised in this court’s case No. 5D03-377, and the “new evidence” he describes is neither new nor significant, this court issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999) (court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond).

We find no merit in Carlisle’s response and hold that his successive petitions constitute an abuse of the judicial system. See, e.g., Harvey v. State, 836 So.2d 1102 (Fla. 5th DCA 2003); Davis v. State, 705 So.2d 133 (Fla. 5th DCA 1998); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995). Therefore, in accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve judicial resources, we prohibit Carlisle from filing any additional pro se appeals, pleadings, motions and petitions relating to his conviction and sentence in his case affirmed by this court in Carlisle v. State, 736 So.2d 1203 (Fla. 5th DCA 1999). Any further pleadings filed in this court relating to his judgment and sentence in that case must be reviewed and signed by an attorney, licensed to practice law in this state. The clerk of the court of the Fifth District Court of Appeal is directed not to accept any further pro se filings or pleadings from Carlisle regarding Seventh Judicial Circuit Court No. 97-35355-CFAES.

PETITION DENIED.

SHARP, W., PETERSON, TORPY, JJ., concur.

      . Not counting the motions and petitions he filed with the trial court before resorting to the higher courts, his collateral challenges were: Carlisle v. State, No. 5D00-708 (Fla. 5th DCA May 11, 2000) (dismissed for failure to pay filing fee); Carlisle v. State, 773 So.2d 647 (Fla. 5th DCA 2000) (petition stricken); Carlisle v. State, No. 5D00-3516, (Fla. 5th DCA Dec. 12, 2000) (cert.denied); Carlisle v. State, No. 5D01-771, (Fla. 5th DCA June 15, 2001) (first petition for belated appeal denied); Carlisle v. State, No. 5D01-3625 (Fla. 5th DCA Jan. 3, 2002) (petition to consolidate first two Rule 3.850 motions denied); Carlisle v. State, No. 5D02-319, 829 So.2d 232 (Fla. 5th DCA Aug.20, 2002) (denying motion to relinquish jurisdiction and affirming denial of Rule 3.850 motion); Carlisle v. State, 821 So.2d 293 (Fla.2002) (petition dismissed); Carlisle v. State, No. 5D03-377, 845 So.2d 212, 2003 Fla.App. Lexis 4288 (Fla. 5th DCA Mar.18, 2003) (denial of third Rule 3.850 motion affirmed).


author: SHARP, W., J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. W.M.J., A Child, Respondent.
    No. 5D03-1229.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.
    Ralph J. McMurphy, Department of Children and Families, Wildwood, for Petitioner.
    Brad King, State Attorney, and Linda Johns Herrick, Assistant State Attorney, Ocala, for the State of Florida.
    No Appearance for Respondent W.M.J., a Child.
   SHARP, W., J.

The petitioner, Department of Children and Families, seeks a writ of certiorari to review the order of the trial court which committed an incompetent juvenile to the Department for competency restoration, in a case in which the juvenile’s alleged delinquent act would constitute a misdemeanor if committed by an adult. The trial court’s order provides:

The child is committed to the Department of Children and Families for assistance and supervision with the goal of the restoration of the child’s competency to proceed.

The trial court rendering this decision may not have had the benefit of our opinion in Department of Children and Families v. E.M.S., 841 So.2d 621 (Fla. 5th DCA 2003). This case is indistinguishable from E.M.S. and Department of Children and Families v. J.K, 752 So.2d 87 (Fla. 1st DCA 2000). Under the applicable statute, section 985.223(2), Florida Statutes, an incompetent juvenile charged with the equivalent of a misdemeanor offense may not be committed to the Department for restoration of competency treatment or training services.

Accordingly, we grant the Department’s petition for writ of certiorari, quash the order under review, and remand for further proceedings.

GRANT Petition for Writ of Certiorari and remand; QUASH Order.

PETERSON and MONACO, JJ., concur.


text:
    Robert HABER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-1181.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.
    David P. Hill, David P. Hill, P.A., Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Robert Haber seeks certiorari review of an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(c) to reduce or modify his sentence. Although the motion was timely filed, because the hearing was not completed within the sixty-day period set forth in the rule, the trial court concluded that it lacked jurisdiction to consider the motion on the merits. Such orders are reviewable by certiorari. See Arnold v. State, 621 So.2d 503 (Fla. 5th DCA 1993).

Based on Timmer v. State, 840 So.2d 1160 (Fla. 5th DCA 2003), which had not been published at the time the trial court made its decision, we quash the order under review and remand the matter for consideration of Haber’s motion on the merits.

CERTIORARI GRANTED; ORDER QUASHED.

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


text:
    HY-EM USA PROPERTIES, INC., and Volusia County Farm Bureau, Appellants, v. DEPARTMENT OF TRANSPORTATION, et al., Appellee.
    No. 5D03-1065.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.

      F.A. Ford Jr., of Landis, Graham, French, P.A., Deland, for Appellant.
    Pamela S. Leslie, General Counsel and Marianne A. Trussell, Deputy General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Pursuant to Appellee’s confession of error, the Order Denying Respondent’s Motion to Dismiss and Issuing an Order of Taking, as to Parcels # 122, 126 and 194 is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

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


text:
    STATE of Florida, Appellant, v. Bruce Michael FOSTER, Appellee.
    No. 5D02-2583.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance, for Appellee.
   PER CURIAM.

The State of Florida appeals the dismissal of an information charging Bruce Michael Foster with a single count of violating section 403.413(4)(c), Florida Statutes (2001). That section is known as the Florida Litter Law and Foster was charged with its violation for illegally draining hazardous fuels onto or into the ground located on property that was owned by him.

The trial court dismissed the action relying upon its disposition of a similar case, the facts of which are included in this court’s opinion in State v. Davis, 838 So.2d 696 (Fla. 5th DCA 2003).

The reasoning and disposition included in Davis are also dispositive of the instant case. The order of dismissal is vacated and we remand for further proceedings.

REVERSED and REMANDED.

PETERSON, THOMPSON and TORPY, JJ., concur.

      . State v. Foster, 840 So.2d 1174 (Fla. 5th DCA 2003) was consolidated with the instant case at the trial level and also dismissed. That dismissal was reversed by this court and incidentally the defendant was Bruce Michael Foster's father.


text:
    Mikel K. WHITING, Appellant, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, et al., Appellee.
    No. 5D02-1892.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.

      N. James Turner of N. James Turner, Esq., P.A., Orlando, for Appellant.
    D. David Sessions, Tallahassee, for Ap-pellee, Florida Department of Law Enforcement.
    Jack E. Ruby, Assistant General Counsel, Florida Public Employees Relations Commission, Tallahassee, for Appellee, Florida Public Employees Relations Commission.
   SHARP, W., J.

Mikel Whiting (Whiting) appeals a final order of the Public Employees Service Commission (PERC), which adopted a hearing officer’s recommended order and dismissed his appeal in an employment termination case. We affirm because the record reflects that Whiting failed to timely file his appeal from the Notice of Final Agency Action of Dismissal.

Whiting was a career service employee of the Florida Department of Law Enforcement (FDLE) from October 1,1999 to March 21, 2002. He was dismissed on March 21, 2002, when a notice of final agency action of dismissal was delivered to him. Whiting filed a notice of appeal with PERC on April 5, 2002. However, FDLE filed a motion to dismiss the appeal as untimely. The basis for this motion was that Whiting was served with the notice by certified mail, return receipt requested on March 20, 2002, and was personally served with another notice the next day, March 21, 2002.

Pursuant to § 110.227(5), Whiting had 14 calendar days from the date he received the notice to file his appeal. Accepting the date of service as March 21, 2002, Whiting’s last day to file the appeal was April 4, 2002. At the hearing, Whiting stated he understood that the 14 days did not commence until the day after he was served, i.e., on March 22, 2002 (which is accurate). Whiting explained he attempted to fax his notice of appeal to PERC on April 4, 2002, but that his attempts were unsuccessful. He concluded “I elected to complete the fax on April 5, 2002 in the morning hours.” (emphasis added). Unfortunately for Whiting, this was one day late.

Section 120.569(2)(e) compels dismissal of untimely petitions in administrative hearings concerning substantial rights. See Cann v. Dept. of Children & Family Services, 813 So.2d 237, 239 (Fla. 2d DCA 2002). Late filing is presumed to constitute a waiver of rights. Appel v. Florida Dept. of State, Div. of Licensing, 734 So.2d 1180 (Fla. 2d DCA 1999).

We also conclude Whiting’s testimony is insufficient to support a claim of equitable tolling. Machotes v. Dept, of Administration, 523 So.2d 1132, 1134 (Fla. 1988). Equitable tolling requires that the party be misled or lulled into inaction; that he was prevented from asserting his rights in some extraordinary way; or that he has timely asserted his rights in the wrong forum. Mochales. In this case, Whiting has claimed only his mistaken belief as to when the time period ended, and that PERC’s fax was not available to him at the time he wanted to fax his notice.

AFFIRMED.

PETERSON and ORFINGER, JJ., concur.

      . Whiting disputes that the envelope received that day contained the Notice.


author: PER CURIAM. GRIFFIN, J.,

text:
    J.F.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-696.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.

      James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

The State has moved for rehearing of our opinion striking an order of restitution, expressing surprise that the measure of damages for the theft of personal property by the defendant would be fair market value, not replacement value, and asserting the right to a second restitution hearing to prove fair market value. It appears the weight of authority supports their demand. See, e.g., Fletcher v. State, 800 So.2d 309 (Fla. 2d DCA 2001); Santana v. State, 795 So.2d 1112 (Fla. 5th DCA 2001); Korica v. State, 791 So.2d 543 (Fla. 2d DCA 2001). Accordingly, we issue the following revised opinion:

The defendant below, J.F.H., was charged by delinquency petition with burglary of an unoccupied dwelling and grand theft of $300 or more but less than $20,000. He had apparently acted as a lookout while his two co-defendants took numerous items from the dwelling. J.F.H. pled nolo con-tendere to the charges. The trial court withheld adjudication of delinquency and placed J.F.H. on probation. J.F.H. now appeals, contending that the trial court erred in awarding $3,084.92 in restitution because the court failed to base its order on fair market value and to consider salvage value.

We find no error in the values ascribed to the several items at issue save one. Among the stolen items was a three-to-four-year-old computer. At the time of its return, it was inoperable. The victim replaced it by purchasing a new computer. The trial court awarded the purchase price of the new computer, $1,112.98. However, fair market value, not replacement value, is the correct measure of damages. No evidence of the fair market value of the used computer was offered so we remand for a new restitution hearing.

REVERSED and REMANDED.

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

GRIFFIN, J., dissenting, with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent from the opinion on rehearing because I can see no justification for a remand for a second restitution hearing to allow the State to prove the amount of restitution owed by the defendant. They had their opportunity at the first restitution hearing. This is not rocket science, it is one of the most elementary concepts of the law of damages. Moreover, plenty of restitution cases decided in Florida clearly set forth that the measure of damages for the loss of personalty is its fair market value, absent exceptional circumstances. In this case, there are no such exceptional circumstances. Here, rather than offer evidence of the fair market value of the item, the State only offered proof of a different measure of damages — cost of replacement. Anywhere else in law, this would be a failure of proof that would prevent entry of an award. Certainly in a civil case, if the plaintiff proves facts only to support the wrong measure of damages, the plaintiff would not be entitled to a new trial to try again. See, e.g., Van Der Noord v. Katz, 481 So.2d 1228 (Fla. 5th DCA 1985).

In common parlance, there is no “second bite at the apple.” Id. at 1230. When it comes to restitution hearings, however, apparently the State gets as many hearings as it needs to get its proof right. In other aspects of sentencing, the Supreme Court of Florida has taken the view that sentencing ought not to be a “work in progress” where the parties keep having hearings and having “do-overs” until the product meets the requirements of law. See Justice v. State, 674 So.2d 123, 126 (Fla.1996). See also Ashley v. State, 28 Fla. L. Weekly S18, — So. 2d -, 2003 WL 60564(Fla. Jan. 9, 2003). That ought to be the rule for restitution also. “Do-over” hearings lead to an undesirable lack of finality and multiple appeals. Id. Our case books are full of these cases where the State did not offer competent evidence of restitution, resulting in an appeal where the appellate court reverses, explains to the State who should testify and about what they should testify and then sends it back for a second hearing. See, e.g., Fletcher v. State, 800 So.2d 309 (Fla. 2d DCA 2001); Santana v. State, 795 So.2d 1112 (Fla. 5th DCA 2001); Peters v. State, 555 So.2d 450 (Fla. 4th DCA 1990); Abbott v. State, 543 So.2d 411 (Fla. 1st DCA 1989). This is wasteful and expensive and ought to be unnecessary.

There is some suggestion that the “do-over” rule applies to restitution because of the important public policy involved in compensating victims of crime. I do not see, however, why this important goal should encourage sloppy preparation and waste of judicial resources. In many of these cases, the cost to the State of the second restitution hearing is far greater than the restitution that will be awarded, much less collected for the victim. If restitution is important, it should be important enough to do correctly at the hearing designated for that purpose. I have a hunch, that with just a little training, assistant state attorneys could learn to do this.


text:
    Benjamin ESTEVES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2070.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.
    Benjamin Esteves, Polk City, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the trial court’s order dismissing Appellant’s unsworn, unsigned motion for postconviction relief. Such dismissal is without prejudice to refile a properly executed motion under oath within the time constraints of Florida Rule of Criminal Procedure 3.850(b).

AFFIRMED.

PETERSON, ORFINGER and TORPY, JJ., concur.


author: SILBERMAN, Judge.

text:
    Heath BAGGETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2291.
    District Court of Appeal of Florida, Second District.
    July 18, 2003.

      James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Heath Baggett appeals his judgment and sentences for burglary of a dwelling and grand theft and contends that the trial court erred in denying his motion to suppress evidence. We agree and reverse because the evidence was obtained as the result of an illegal detention.

Troy Young, a police officer in Lakeland, testified at the suppression hearing. On October 14, 2000, while he was assisting another officer in a traffic stop, an unidentified motorist drove up next to the officers. That motorist stated that he had seen a white man with dark clothing acting suspiciously. The motorist had observed the man go into a nearby wooded area, bring out a bag and set it down, then return into the woods and bring out another bag. Officer Young could not remember any other information given by the motorist.

Officer Young testified that he was aware from an earlier briefing that there had been a string of burglaries in the mobile home parks located on the southwest side of Lakeland. At least one white male was involved in the burglaries, and a red flatbed pickup was described as the perpetrator’s vehicle.

Officer Young drove to a nearby store, anticipating that the man with the bags would have gone there. As he pulled into the parking lot, he observed Baggett walk around the corner with two large, paper grocery bags under his arms. Baggett went into the convenience store, placed the bags on the counter, and walked to the coolers.

Officer Young stated that he watched Baggett walk into the store and that he felt Baggett was acting suspiciously because Baggett avoided eye contact with him. Officer Young, who was in uniform, walked into the store. One bag was open, and he looked into it and saw a VCR. He could not see if there were other items in the bag. Officer Young went up to Bag-gett, identified himself, and stated that he “needed” Baggett to come outside.

Once outside, Officer Young told Bag-gett that he was being detained for suspicion of burglary. Officer Young testified that at that point, Baggett was not under arrest, but he was not free to leave. He handcuffed Baggett for “officer safety reasons” because of the way Baggett “was acting suspicious.” He read Baggett the Miranda warnings and questioned him. Baggett remained in handcuffs throughout the encounter.

In response to Officer Young’s questioning, Baggett stated that the VCR was his but that he found the other items. He later stated that he also found the VCR. When asked where he found the items, Baggett pointed in the direction of the wooded area and the mobile home park. A second officer then retrieved the bags from the store, opened the one that did not contain the VCR, and removed a pill bottle from it. Officer Young testified that the other officer looked in the bags to determine who owned the contents. The pill bottle had a name on it, and the officer was able to locate an address in the mobile home park based on the name and a records check. Another officer went to the address and determined that there had been a burglary. Officer Young acknowledged that when he first ápproached Bag-gett, he had no information that the mobile home located at the address had been burglarized, or that the VCR may have been stolen.

Officer Young testified that “no more than 10 minutes or so” had passed from when he initially detained Baggett to when he received confirmation of a burglary. He stated that he then arrested Baggett for “suspicion of burglary.” An inventory of the bags revealed various items that were subsequently linked to the burglary of the mobile home.

The second officer testified that when he retrieved the bags, one was closed and he had to open it to look inside and retrieve the pill bottle. He did not ask permission from Baggett to search the bags. He also stated that when the briefing had been given at the police department, there was no description of a suspect, only a description of a red pickup truck.

Baggett was charged with burglary of a dwelling and grand theft. After his motion to suppress was denied, he pleaded no contest and reserved his right to appeal the motion to suppress. In this appeal, he argues the trial court should have granted his motion to suppress because he had been illegally detained and the bags were searched as a result of his illegal detention. We agree.

In the absence of probable cause for an arrest, officers may initiate an investigatory stop if they have a reasonable suspicion that the person to be stopped is engaged in criminal activity. Grant v. State, 718 So.2d 238, 239 (Fla. 2d DCA 1998). When a tipster alleges criminal conduct but only describes innocent details of identification that are not incriminating or indicative of criminal behavior, reasonable suspicion may be established through independent police investigation. See J.L. v. State, 727 So.2d 204, 206-07 (Fla.1998), aff'd, 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The investigation must reveal additional suspicious circumstances and not simply verify innocent details. Id. at 207.

Here, the tip that led to Baggett’s detention came from an unknown individual who drove up to the police. Even if the trial court considered the tip as coming from a citizen informant, whose reliability is at the higher end of the reliability scale, see State v. Maynard, 783 So.2d 226, 230 (Fla.2001), the tip contained no information as to possible criminal activity or any link to the past burglaries that had occurred in the area. Although the police believed that a white man and a red pickup truck may have been involved in the burglaries, neither the tip nor Officer Young’s observation that Baggett avoided making eye contact is suggestive of any criminal conduct or linked Baggett to any burglaries or to any vehicle. Based on the evidence presented at the suppression hearing, the stop of Baggett was not justified because the circumstances did not create a reasonable suspicion that Baggett was involved in criminal activity. See Goss v. State, 744 So.2d 1167, 1168 (Fla. 2d DCA 1999).

Baggett also argues that even if the initial detention had been proper, it turned into a de facto arrest without probable cause because the police handcuffed him and read the Miranda warnings to him, kept him in handcuffs with no articulated reason to do so, searched the bags, and unreasonably detained him without anything more than an assumption that he might be a burglar. Again, we agree.

Officer Young expressed no specific concerns regarding officer safety to support handcuffing Baggett. See Reynolds v. State, 592 So.2d 1082, 1084-85 (Fla.1992); Johnson v. State, 813 So.2d 1027, 1028-29 (Fla. 3d DCA 2002). Moreover, the testimony reflects that there was no pat-down conducted of Baggett to determine whether he was armed, and there was no evidence that threatening circumstances existed to justify keeping Baggett in handcuffs throughout the detention. See Reynolds, 592 So.2d at 1085. Although the State suggests the detention was reasonable, the State simply did not meet its “burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Based on all of the circumstances, we conclude that the officer’s further detention of Bag-gett by placing him in handcuffs was also illegal.

Finally, the State argues that because Baggett denied ownership of the property contained in at least one of the bags, he lacked standing to contest a search of the bag. See State v. Brown, 412 So.2d 24, 25 (Fla. 4th DCA 1982). “However, an unconstitutional seizure or arrest which prompts a disclaimer of property vitiates the disclaimer.” State v. Daniels, 576 So.2d 819, 823 (Fla. 4th DCA 1991). To determine whether a disclaimer is voluntary, courts must look to whether there is a causal nexus between the unlawful police conduct and the defendant’s disclaimer of the property. See id.

Baggett was not asked about the bags until after Officer Young told him to exit the store, handcuffed him, and gave the Miranda warnings. Baggett stated that the VCR was his and that he found the other items, and he later stated that he also found the VCR. The second officer then retrieved and searched the bags. Baggett’s statements regarding the bags and their contents were the direct result of the illegal detention, and his disclaimer of the property did not preclude him from challenging the search of the bags or the seizure of their contents.

As a result of the illegal detention, the trial court should have granted the motion to suppress. Therefore, we reverse and remand for entry of an order granting the motion to suppress and discharging Bag-gett.

Reversed and remanded.

FULMER and COVINGTON, JJ., Concur.

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


author: WEBSTER, J.

text:
    Juan GALVEZ and Jesus Rodriguez, d/b/a Jr. Co., Appellants, v. Margaret MERELO, Appellee.
    No. 1D02-1721.
    District Court of Appeal of Florida, First District.
    July 21, 2003.
    E.T. Fernandez, III, and Diane G. Cas-saro of Inman & Fernandez, P.A., Jacksonville, for Appellants.
    Stephen J. Pajcic, III, and Christine A. Clark, Jacksonville, for Appellee.
   WEBSTER, J.

Appellants seek review of a final judgment, entered following a jury trial, awarding damages to appellee in a personal injury action. Among other issues, they argue that the trial court erroneously allowed a Georgia state trooper who had investigated the accident to testify, over objection, regarding his opinion as to the cause of the accident even though it had moments earlier ruled that the trooper would not be permitted to testify as an expert. We conclude that the trial court abused its discretion when it overruled appellants’ objection to the trooper’s testimony regarding his opinion as to the cause of the accident, and that the error was harmful. Accordingly, we reverse and remand for a new trial. In light of this disposition, we find it unnecessary to address appellants’ other issues.

An accident involving the parties occurred on a night in October 1998, a short time after 11:00 p.m., on Interstate 95 in Camden County, Georgia, just north of the Florida state line. Appellants were the driver and owner, respectively, of a tractor-trailer, and appellee was a passenger in a rented truck driven by her son, which was pulling a flatbed trailer with a car on it. Nearly two years later, appellee filed suit against appellants in Jacksonville. Appellee’s position was that appellants’ negligence was the sole cause of the accident, and appellants’ position was that the negligence of appellee and her son was the sole cause.

During the trial, appellee called Trooper Strickland of the Georgia Highway Patrol. Trooper Strickland had investigated the accident. At the time, he had been with the Georgia Highway Patrol less than two years. Immediately before Trooper Strickland took the stand, appellants’ lawyer objected to any attempt to elicit expert testimony from him regarding the cause of the accident because he had never been disclosed as an expert. Appellee’s lawyer initially represented that he did not plan to offer Trooper Strickland as an expert. However, when it became apparent that some of the areas about which appellee’s lawyer intended to question the trooper might well involve questions calling for opinions, the trial court said, “if he was not listed as an expert witness, I’m not going to permit him to testify as an expert witness. He’s a fact witness.” After additional discussion, the trial court ruled, “I’m not letting him testify as an expert. He’s testifying as a fact witness, as a lay witness, the investigating officer.” The trial court told appellants’ lawyer, “you can object if you think the question is beyond the scope of what an investigating officer/lay witness/fact person can give and I’ll rule at that time.”

Trooper Strickland then took the stand, in uniform. Dining direct examination, appellee’s lawyer asked, “after having done [your] investigation, what was your conclusion as to, as to how this accident happened and what caused it.” After the trial court overruled the objection made by appellants’ lawyer, Trooper Strickland responded:

This was a, .for lack of better words, classic following too close. I — what I get here is the driver fell asleep, woke up, seen what was about to happen, applied the brakes, maybe even tried to avoid the accident as depicted in the picture and tried to come back up on the road and struck Vehicle 1 [in which ap-pellee was traveling].

Clearly, this testimony was pure opinion. Equally clearly, the trial court had only moments before ruled that Trooper Strickland would not be permitted to testify as an expert. In light of this, the trial court’s ruling on the objection made by appellants’ lawyer can only be characterized as puzzling, and an abuse of discretion. See, e.g., Shearon v. Sullivan, 821 So.2d 1222, 1225 (Fla. 1st DCA 2002) (“[t]he standard of review of a trial court’s exclusion of evidence is abuse of discretion”).

Appellee’s principal response to appellants’ argument regarding this ruling is that appellants have failed to demonstrate that it was harmful. According to appel-lee, the testimony could not have been harmful because it was “merely cumulative” to that of her expert witness in accident reconstruction. We are unable to accept appellee’s harmless error argument.

Appellee’s accident reconstructionist summarized his opinion regarding how the accident occurred as follows:

My conclusions are the operator of the tractor-trailer was exceeding the posted speed limit of 70 miles an hour; also traveling in this same lane as the [rental] truck and auto transport and simply failed to proceed and react in a timely manner which caused him to strike the rear of the auto transport causing it to lose control and come to a final rest.

He did not offer any opinion about what caused appellant Galvez to fail to “react in a timely manner.” Nobody, other than Trooper Strickland, offered an opinion regarding the cause of appellant Galvez’s alleged lack of attention. Moreover, there is no support in the record for Trooper Strickland’s conclusion that the accident was caused because appellant Galvez had fallen asleep behind the wheel. That testimony can only be characterized as pure speculation.

Because Trooper Strickland’s testimony cannot properly be characterized as “merely cumulative” to that of appellee’s accident reconstructionist, it cannot be argued to be harmless for that reason. On the contrary, it seems to us entirely reasonable to conclude that the testimony was harmful.

When an investigating officer testifies, he or she does so as a disinterested party. This was certainly the appearance created by Trooper Strickland in this case. Because of this fact, when such an individual offers testimony which is generally consistent with that of a party’s paid expert, it will in all likelihood cause jurors to give additional credence to the expert’s testimony because of the corroboration. Without such corroboration, jurors might well discount the testimony of a paid expert, as they are entitled to do. But cf. Segarra v. Mellerson, 675 So.2d 980, 982-88 (Fla. Bd DCA 1996) (holding that opinion testimony offered by a state trooper did not constitute harmful error where it was “merely cumulative” to that of a second defendant’s accident reconstructionist, whose testimony had placed fault for the accident on the appealing defendant).

The trial court’s ruling constituted an abuse of discretion and was not harmless. Accordingly, we reverse, and remand for a new trial. In light of our disposition of this issue, we find it unnecessary to address appellants’ other issues, other than to urge the trial court on retrial to be vigilant in ensuring that the lawyers do not engage in arguments prohibited by The Florida Bar Rules of Professional Conduct. See, e.g., Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1023 (Fla.2000) (“a trial judge has a duty to prevent improper closing argument from prejudicing the jury”).

REVERSED and REMANDED, with directions.

PADOVANO and POLSTON, JJ., CONCUR.


author: BENTON, J. ERVIN, J.,

text:
    BANKERS TRUST COMPANY, as Trustee, Appellant, v. Barbara T. EDWARDS, et al., Appellee.
    No. 1D02-3158.
    District Court of Appeal of Florida, First District.
    July 21, 2003.

      Alan Rosenthal, Esquire and Jack R. Reiter, Esquire of Adorno & Yoss, P.A., Miami, for Appellant.
    Eddie M. Anderson, Esquire of Eddie M. Anderson, P.A., Lake City, for Appel-lee.
   BENTON, J.

Bankers Trust Company, as trustee (Bankers Trust), appeals an order entered in a foreclosure proceeding, styled Order Granting Motion to Cancel Foreclosure Sale and Confirming Previous Sale. Earlier in the same proceeding, a final judgment of foreclosure had been entered. We therefore have jurisdiction. See Fla. R.App. P. 9.130(a)(4). We reverse.

Bankers Trust foreclosed a mortgage it held on property Barbara Tomlin Edwards owns in Columbia County, and obtained a judgment in the amount of $45,282.77, on April 16, 1999. A foreclosure sale scheduled for June 11, 1999, was cancelled upon the filing of a suggestion of Ms. Edwards’ bankruptcy. Eventually, after her bankruptcy case was dismissed, the foreclosure sale was reset for April 17, 2002, although no sale occurred then, either. When the foreclosure sale was again rescheduled, Ms. Edwards filed her Motion to Cancel Foreclosure Sale and to Confirm Previous Sale.

Despite its name, the order under review granting Ms. Edwards’ motion did not confirm a sale of the foreclosed property. For reasons that are unclear from the record, no sale ever took place. Nor did Ms. Edwards exercise her right to redeem the property at “any time before the filing of a certificate of sale by the clerk of the court,” § 45.0315, Fla. Stat. (2002), even though the clerk has yet to issue such a certificate. Instead, persuaded that Bankers Trust had been guilty of unidentified inequitable conduct, the trial court ruled that the foreclosure sale would “not be rescheduled again.” In effect, it extinguished Bankers Trust’s security interest by granting Ms. Edwards’ motion, the earlier order of foreclosure notwithstanding.

This was error. Bankers Trust is entitled to have the property sold and the proceeds applied against the foreclosure judgment. See, e.g., First Nationwide Sav. v. Thomas, 513 So.2d 804, 805 (Fla. 4th DCA 1987) (“A lender has the right, under the statutes, except under extraordinary circumstances not found in this record, to proceed with the sale of any real estate on which it has successfully foreclosed its mortgage.”); Orlando Hyatt Assocs., Ltd. v. Fed. Deposit Ins. Corp., 629 So.2d 975, 977 (Fla. 5th DCA 1993) (“ ‘Under Florida law, a mortgage merely creates a lien against the land with title and right of possession remaining with the mortgagor/owner ... to protect a borrower’s due process rights, the courts have determined that a mortgagee can acquire possession upon default only through judicial foreclosure and purchase at sale.’ ”) (citing Four Star Aviation, Inc. v. United States, 409 F.2d 292 (5th Cir.1969), and Snow v. Nowlin, 125 Fla. 166, 169 So. 598 (1936)).

On remand, in the event Ms. Edwards can prove that inequitable conduct, if any, by Bankers Trust impeded earlier sale efforts and requires equitably adjusting the amount of Ms. Edwards’ indebtedness to Bankers Trust, the trial court may make such an adjustment. See Applefield v. Fid. Fed. Sav. & Loan Ass’n, 137 So.2d 259, 262 (Fla. 2d DCA 1962) (“Mortgage sales will be controlled by the Court so that no injustice will be done to either party ... the circumstances of each particular case must be considered in determining in what manner the sale should be made.”).

Reversed and remanded, with directions that a foreclosure sale be scheduled.

WOLF, C.J., CONCURS; ERVIN, J., DISSENTS WITH OPINION.

ERVIN, J.,

dissenting.

Although the order canceling the foreclosure sale may be in need of clarification, I cannot agree that reversal is required on the theory that its effect is, in the majority’s words, an extinguishment of “Bankers Trust’s security interest in the property by granting Ms. Edwards’ motion.” To enable the reader to make his or her own independent assessment of the court’s order, I am attaching the textual portion of it as an appendix to this opinion. Those interested in reviewing the order will note that the lower court precluded Bankers Trust, because of extraordinary circumstances, from rescheduling a clerk’s foreclosure sale. As is apparent from the final quoted sentence, the order did not, however, bar Bankers Trust from proceeding with an execution sale.

The two statutory procedures are not synonymous. A clerk’s sale, which was earlier directed in the final judgment of foreclosure, is carried out in accordance with the provisions of section 45.031, Florida Statutes (2002). Under this procedure, no execution occurs. See § 45.031(9). In contrast, execution sales, undertaken pursuant to sections 56.21 through 56.25, Florida Statutes (2002), obviously require a prior levy on the property sought to be sold. Other differences in the two procedures are set out in the following chart.

A comparison of the two processes shows that creditors generally prefer the remedy of a clerk’s sale. It is far more expeditious and efficient than that provided by the execution or sheriff’s sale. Ignoring the alternative procedure afforded by execution, the majority states that on remand Edwards may be given the opportunity to prove whether any inequitable conduct of Bankers Trust impeded the earlier sale efforts, and if the lower court so finds, it may adjust the sale price. The court, however, has already made a finding of extraordinary circumstances caused by the bank’s inexcusable conduct, which resulted in the cancellation of the sale after it had begun, at considerable expense to Edwards. The existence of extraordinary circumstances has been recognized as a condition that may prevent the rescheduling of a foreclosure sale. See Chem. Mortgage Co. v. Dickson, 651 So.2d 1275 (Fla. 4th DCA 1995); A Mortgage Co. v. Bowman, 642 So.2d 123 (Fla. 4th DCA 1994).

The majority’s reliance on the interpretations of counsel during oral argument as an aid to its own construction of the lower court’s order is, to say the least, a novel approach to judicial decision-making, as is its reliance on representations made at oral argument that no sworn evidence was taken at the hearing on the motion to cancel the foreclosure sale. It is unclear from the opinion whether the majority considers statements of this sort as a valid substitute for the lack of an unreported hearing, despite the opportunity afforded to the parties by Florida Rule Appellate Procedure 9.200(b)(4) to prepare an approved statement of the proceeding. In fact, the record reveals that Bankers Trust twice caused the foreclosure sale to be rescheduled: when the date for same fell on a holiday, and when, in the words of appellant: “Bankers Trust was unable to timely provide bidding instructions to its authorized bidding agent for the April 17, 2002 foreclosure sale. As a result, Bankers Trust could not bid at the sale resulting in its cancellation by the clerk.”

It is true the record does not support the court’s finding that appellee was adversely affected by appellant’s conduct due to the considerable expense she was required to undergo by reason of the sale’s second cancellation, in that, as stated, the hearing was not transcribed. I am not sure, however, that counsel’s oral-argument admission there was no “sworn testimony” can trump the presumption of eor-rectness accorded the trial court’s findings by Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980), particularly when we do not know whether the parties may have agreed at the hearing that ap-pellee was so disadvantaged.

In any event, the order, in my judgment, imposes on Bankers Trust only the sanction of having to comply with the more onerous procedure demanded by section 56.31, when the court would once again set the property for sale. Because I find nothing in the order reasonably implying that the court extinguished Bankers Trust’s security interest in the property, or that the court abused its equitable discretion in requiring an execution sale, I would affirm.

APPENDIX

This cause came to be heard upon the Motion to Cancel Foreclosure Sale and to Confirm Previous Sale served by Defendant Barbara Edwards on June 7, 2002. The Court having considered said Motion, and having heard the arguments of counsel, and having reviewed the case law presented to it by Plaintiff’s counsel, does hereby Order as follows:

The Court is persuaded by Defendant’s argument that “extraordinary circumstances” exist in this matter to the degree that Plaintiff is not entitled to a rescheduled Clerk’s foreclosure sale. Plaintiffs agent did attend the clerk’s sale on April 17, 2002. It was Plaintiffs misconduct, or inequitable conduct, which occurred after the deputy clerk had already begun the sale that led to the sale not being completed. Defendant was adversely and inequitably affected by Plaintiffs conduct, in that she had arranged for a third party to bid on the property for her at the sale, at considerable expense to her. Plaintiff offered no excuse for its conduct at the sale.

Accordingly, the sale currently scheduled for July 3, 2002 should not have been rescheduled, and so it is hereby cancelled, and will not be rescheduled again.

The Final Judgment entered in this matter on April 16, 1999 shall stand as to the amount owed. Execution may be let to issue on said Final Judgment.

      . While the trial court made findings that Bankers Trust’s (unspecified) inequitable conduct gave rise to “extraordinary circumstances," the parties acknowledged at oral argument that no evidence to support such findings had been adduced. Counsel for Bankers Trust stated: "There was no evidence presented at the court below at the hearing giving rise to the order appealed from." Answering a question from the bench, counsel for Ms. Edwards agreed: “No sir, we did not have any sworn evidence.”

      . At oral argument, both parties interpreted the trial court's order as denying Bankers Trust the ability to force a sale of the mortgaged property. Counsel for Ms. Edwards stated: "I do not believe Judge Douglas ... had in mind that this property could be sold under some other process.” Similarly, counsel for Bankers Trust argued:
      There is an alternative remedy; however, it would be, in our view, illogical to read Judge Douglas' order that way because whether it is by clerk's sale or sheriff's sale ... if the Judge had intended for us to be able to force a sale, by clerk or by sheriff, of the property, he could have just denied the motion to confirm the prior sale filed by appellee below and just permitted us to go forward with the sale that Judge Douglas ordered to be held ... I believe the only fair reading of Judge Douglas' order is that you can't execute on this property, but if she's got any other property, then you can execute on it ...

      When one looks at the practical effect of the Judge' s order, again, there would be no difference.... The procedures are similar ... it's just a different officer of government who is carrying out the sale. So that if he had intended for us to be able to execute on the homestead ... there would have been no purpose served, no benefit to either party, no burden to either party, by denying the motion to confirm the prior sale ...
      Asked whether the trial court's order had destroyed Bankers Trust's security interest in the property, Ms. Edwards’ counsel replied: "Yes, sir, by [Bankers Trust's] own actions according to the [trial] judge and by the inequitable conduct ..."

      . In that there is nothing in the record supporting or refuting these findings, we are required to presume their correctness. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1980).


author: WARNER, J.

text:
    Megan ORTLIEB, Mark Ortlieb and Janet Ortlieb, Appellants, v. Carmen and Tracy BUTTS, Appellees.
    No. 4D01-3902.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.

      Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, and Patrick Shawn Spellaey of Green, Murphy, Wilke, Murphy & Spellaey, P.A., Boca Raton, for appellants.
    Russell S. Adler and Michael A. Feiner of Karmin, Adler & Padowitz, Fort Laud-erdale, for appellees.
   WARNER, J.

Appellant Megan Ortlieb (“Ortlieb”), the defendant in a rear-end automobile accident, appeals the trial court’s order granting an additur to appellee/plaintiffs damages. Appellee Carmen Butts (“Butts”), the injured party, cross-appeals the trial court’s denial of a motion for directed verdict on the issue of liability. We reverse on both issues. As to the additur, because the evidence supported the jury’s verdict, the trial court’s additur was equivalent to it sitting as a “seventh juror.” On liability, the court erred in refusing to grant a directed verdict in favor of the plaintiff where the defendant failed to rebut the presumption of negligence that arises in rear-end collisions.

Butts was struck from behind by Ortlieb while she was stopped at a stop sign. Butts testified that she experienced pain in the left side of her neck immediately after the collision, which progressively worsened. She obtained treatment for her injuries over the next year, including testing and treatment for temporomandibular joint dysfunction (“TMJ”). Two experts, an orthopedic surgeon and a dentist, testified that her injuries were permanent and resulted from the accident. Butts’ medical bills totaled $21,244.74, of which $7,347.44 were attributed to TMJ. The defense presented two experts who presented different opinions as to the extent of Butts’ injuries. An orthopedic surgeon, who examined Butts and reviewed x-rays taken of her a week after the accident, testified that there was no objective indication that she was injured or that she had suffered any permanent injury as a result of the car accident. A dentist also testified that Butts’ problems with her jaw and teeth was not TMJ caused by the accident, but was the result of missing teeth, misalignment, a developmental defect in her bite, habitual tooth grinding, and sinus disease.

At trial Butts moved for directed verdict on liability, contending that Ortlieb failed to rebut the presumption of negligence that attaches in rear-end collisions. The court denied the motion and instructed the jury on negligence and comparative negligence. The jury returned a verdict finding Ortlieb seventy-five percent negligent and Butts twenty-five percent negligent. It awarded Butts $10,000.00 in past medical expenses and determined that she had not sustained permanent injury as a result of the accident. Thus, the jury awarded no future damages.

Post-trial, Butts moved for a new trial or additur, alleging the jury ignored the unrefuted evidence presented at trial that established she incurred $21,244.74 in medical expenses. After a hearing, the trial court granted an additur in the amount of $21,000 because the “jury inappropriately failed to consider unrebutted evidence as to the medical expenses.” Ortlieb appeals the order of additur, and Butts appeals the denial of the directed verdict on liability.

Pursuant to section 768.043(1), Florida Statutes (2001), upon motion for additur, a trial court may review the jury’s award of damages to the plaintiff and order an additur if it finds the award was clearly “inadequate in light of the facts and circumstances which were presented to the trier of fact.” “Additur is an appropriate remedy only where a damage award is so inadequate as to shock the conscience of the court; a trial judge may not ‘sit as a ‘seventh juror,’ thereby substituting his or her resolution of the factual issues for that of the jury.’ ” Aurbach v. Gallina, 721 So.2d 756, 758 (Fla. 4th DCA 1998) (quoting Poole v. Veterans Auto Sales & Leasing Co., 668 So.2d 189, 191 (Fla.1996)). Where there is undisputed evidence supporting an award of damages and the jury fails to make such an award, it is error for the trial court to deny a motion for addi-tur. See id. On the other hand, where the evidence is conflicting and the jury could have reached its verdict in a manner consistent with the evidence, it is error for the trial court to veto the jury verdict by granting a motion for additur. See Airstar, Inc. v. Gubbins, 668 So.2d 311, 313 (Fla. 4th DCA 1996).

In Airstar, after the jury was presented with sharply conflicting testimony regarding the plaintiff’s condition, it determined that the plaintiff did not suffer permanent injury and awarded no damages. The trial court granted an additur of $47,935. This court reviewed the trial evidence which consisted of some doctors testifying that the plaintiffs injuries were permanent and caused by the accident, and other doctors testifying that her injuries were caused by prior accidents, age-related degeneration, or factors unrelated to the accident in question. We held that with such conflicting testimony, the jury’s verdict was consistent with its view of the evidence. See id. We reversed the trial court’s order of additur because it allowed the judge to act as a “seventh juror,” essentially overruling the jury’s view of the evidence.

In like manner, the jury’s verdict in this case was consistent with its view of sharply conflicting evidence. The jury could have determined that Butts’ jaw problems were not caused by the accident at all but were the result of other conditions. Therefore, the $7,347.44 of expenses attributable to TMJ would not have been included in the jury’s damage award. As there was evidence presented that Butts suffered no permanent or traumatic injury to her back or neck, the jury also could have concluded that all of the past medical expenses incurred as a result of back injury, particularly those expenses recently incurred after a considerable break in treatment, were neither necessary nor related to the accident. Consistent with our ruling in Airstar, we conclude that the court erred in granting the additur.

On cross-appeal, Butts argues the trial court erred when it denied her motion for directed verdict on the issue of liability because Ortlieb failed to rebut the presumption of negligence that arises from a rear-end collision. “A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party.” Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999) (citing Am. Motors Corp. v. Ellis, 403 So.2d 459, 467 (Fla. 5th DCA 1981)). When determining whether to grant a motion for directed verdict, the trial court must evaluate the evidence in favor of the nonmoving party. See id. “This is the test used by the trial court as well as the standard of review on appeal.” Id. (citing Ritz v. Fla. Patient’s Comp. Fund, 436 So.2d 987, 989 (Fla. 5th DCA 1983)).

A presumption of negligence arises in rear-end collision cases, which shifts the burden to the defendant to explain his or her inability to avoid the collision. The second district explained the shifting burden in Yellow Cab Co. of St. Petersburg, Inc. v. Betsey, 696 So.2d 769, 771 (Fla. 2d DCA 1996):

A rebuttable presumption of negligence attaches to the driver of the rear vehicle in a rear-end collision. Flipper v. Gov’t Employees Ins. Co., 622 So.2d 1141 (Fla. 2d DCA 1993); McNulty v. Cusack, 104 So.2d 785; Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977). The burden then shifts to the defendant to explain his inability to avoid the collision. 347 So.2d at 657. When the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, then the effect of the presumption is dissipated. Gulle v. Boggs, 174 So.2d 26, 29 (Fla.1965); Flipper, 622 So.2d 1141. In the absence of an explanation from the defendant, a directed verdict in favor of the plaintiff is proper. McNulty, 104 So.2d at 788. If the defendant produces evidence that fairly and reasonably shows that he was not negligent, the effect of the presumption disappears and negligence then becomes a jury question. Baughman v. Vann, 390 So.2d 750 (Fla. 5th DCA 1980).

Here, Butts testified that she was stopped at a stop sign waiting for oncoming traffic to pass when she was rear-ended by Ortlieb. Ortlieb testified that she pulled behind Butts as she was stopped. Butts proceeded to go through the stop sign. Ortlieb pulled up to the white line and turned her head to the left to view oncoming traffic. When traffic cleared, Ortlieb put her foot on the gas and proceeded to go. Instantly, she hit Butts who had not fully entered the street. On cross-examination, Ortlieb admitted she only observed Butts pulling forward enough to allow her to move her car forward. From that point on, Ortlieb’s head was turned to the left, and she put her foot on the gas and accelerated without confirming if Butts had entered the street. Thus, she did not know, and did not see, that Butts was still ahead of her also waiting for traffic to clear.

Ortlieb maintains that Butts’ stop after she pulled forward was unexpected and therefore the presumption of negligence was rebutted. Where “the lead vehicle suddenly stops, but the stop happens at a place and time where it was reasonably expected, then the presumption of negligence is not rebutted.” Ferguson v. Disalvo, 775 So.2d 414, 415 (Fla. 4th DCA 2001) (citations omitted). Where, however, “the stop by the lead driver is ‘arbitrary’ (i.e., unexpected and sudden), then the presumption is rebutted and the plaintiff is not entitled to a directed verdict.” Id.

The evidence does not show that Butts’ stop was sudden and unexpected. Ortlieb never saw Butts stop because, as she admits, she wasn’t looking. That she accelerated her vehicle without looking to see where she was going does not fairly and reasonably show that she was not negligent. In fact, it shows the exact opposite. Because the presumption of negligence was not rebutted, the trial court erred in denying the motion for directed verdict.

For the foregoing reasons, we reverse the order of additur as well as the denial of a directed verdict. We therefore direct entry of a judgment in favor of appellee for the full amount of the jury verdict.

STEVENSON and HAZOURI, JJ., concur.

      . This is revealed by Ortlieb's testimony on cross-examination, reprinted in pertinent part below.
      Question: And as you're looking to your left and you don’t see any oncoming traffic, that’s when you put your foot on the gas, right?
      Ortlieb: Correct.
      Question: At the moment you did that, you know now that Carmen was sitting there right there in front of you, right?
      Ortlieb: Correct.
      Question: You never saw her, right?
      Ortlieb: Correct.
      Question: Because you never looked; isn’t that right, Ma’am? You never looked.
      Ortlieb: Correct.
      Question: And when you put your foot on the gas and began to accelerate that truck, you still weren’t looking, were you Ma'am?
      Ortlieb: No. At the time I put my foot on the gas, I was turning my body around.
      Question: And in fact, the first indication you had that she was still sitting there, right in front of you, was when you hit her?

      Ortlieb: Yes.


text:
    Kenneth BRACKINS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D02-2690, 4D02-2703, 4D02-2793.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Guion v. State, 753 So.2d 628 (Fla. 5th DCA 2000).

STEVENSON, TAYLOR and MAY, JJ., concur.


author: STONE, J.

text:
    Alvin MOUNDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4093.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

STONE, J.

We deny Mounds’ motion for rehearing. However, we withdraw the opinion dated April 9, 2003, and substitute the following, recognizing the subsequent supreme court opinion in Wilson v. State, 845 So.2d 142 (Fla.2003).

Following reversal of Mounds’ conviction of trafficking in cocaine, possession of cocaine, and possession of drug paraphernalia, and prior to re-trial on the trafficking charge, the state offered Mounds a plea to five years imprisonment. At that time, the judge commented that if Mounds was found guilty, “most likely this Court, will have the same sentence that I imposed before, which is the nine plus years, but the State is offering you five years to resolve the case with credit for time served of 36 months.” Following the retrial, Mounds was found guilty and sentenced to 105.25 months. He subsequently filed a motion to correct sentencing errors, alleging the judge’s pre-trial comments demonstrated vindictiveness. The motion was denied.

We conclude that the trial court correctly denied Mounds’ motion and affirm. It is up to Mounds to demonstrate vindictiveness. Mitchell v. State, 521 So.2d 185, 187 (Fla. 4th DCA 1988). Here, Mounds, although unable to demonstrate vindictiveness on the face of the record, argues that under the facts of this case, a rebuttable presumption of vindictiveness arose which went unrebutted by the state.

When there is judicial participation in plea negotiations, followed by a harsher sentence, the supreme court has adopted a totality of the circumstances approach in determining whether a presumption of vindictiveness arises. Wilson, 845 So.2d at 155. These factors include whether the trial judge initiated the plea discussions with the defendant; 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; the disparity between the plea offer and the ultimate sentence imposed; and 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.

Under the totality of the circumstances in this case, a presumption of vindictiveness does not arise. First, it does not appear from the record that the judge initiated the plea dialogue. While the transcript begins with the judge’s discussion of the plea offer, there is an indication that a plea dialogue had previously begun due to the judge’s mention of the plea offer made by the state. Even assuming that the judge initiated the plea discussion, the court did not urge Mounds to take the plea. Furthermore, the disparity between the offer and the actual sentence, while significant, was not extreme, 105.25 months versus 60 months.

Finally, here, there are facts which point to another explanation for the increase in sentence other than the fact that the defendant exercised his right to a trial. Mounds was being re-tried for an offense for which he had previously been convicted and sentenced to 105.25 months. The sentence imposed after re-trial, although exceeding the plea offer, did not exceed the original sentence. The record reflects that the trial court was merely explaining to Mounds these facts and that the trial court would most likely re-impose the same sentence. This is not indicative of any vindictiveness or of the desire of the judge to sentence Mounds more harshly for going to trial. By its comment, the court simply stated the obvious, thereby providing Mounds with the opportunity to make, and some information that might assist him in making, an informed decision.

This case is, therefore, distinguishable from Wilson, where the supreme court reviewed the conflicting opinions in Byrd v. State, 794 So.2d 671 (Fla. 5th DCA 2001), and Wilson v. State, 792 So.2d 601 (Fla. 4th DCA 2001). In contrast to Mounds, Byrd was urged to accept the plea by the trial judge and the subsequent sentence imposed exceeded the plea offer by forty-five years. Id. at 158. In Wilson’s case, the judge commented that he should have accepted the offer, and there was a complete absence of any explanation for the increase in the sentence ultimately imposed. See id. Here, the judge did not push Mounds to accept the offer, and there was a reasonable explanation for the sentence imposed.

Although we conclude that the facts surrounding Mounds’ conviction are distinguishable from these surrounding the defendants’ conviction in Wilson, we do not accept the state’s additional argument that Mounds cannot appeal the sentence because it is within the permitted sentencing guideline range. This court has recognized an exception to this general rule where there is a challenge based on constitutional considerations, such as judicial vindictiveness, for an election to go to trial. See Winther v. State, 812 So.2d 527 (Fla. 4th DCA 2002).

We also find no reversible error or abuse of discretion as to the other issues raised. The conviction and sentence are affirmed.

GROSS and MAY, JJ., concur.