author: SHAHOOD, J.

text:
    Lemuel L. COLE, Appellant, v. DEPARTMENT OF CORRECTIONS, Michael Henderson, Unknown Security Supervisor, Appellees.
    No. 4D01-3462.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.
    Lemuel L. Cole, Cross City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauder-dale, for appellees.
   SHAHOOD, J.

Pro se appellant, Lemuel L. Cole, appeals from a Final Judgment Granting Defendants’ Motion to Dismiss with Prejudice. We hold the trial court erred in granting the motion and reverse and re-raand with directions to the trial court to reinstate appellant’s complaint.

Appellant, an inmate at Glades Correctional Institution, filed a malicious prosecution action against the Department of Corrections (DOC). In his complaint, appellant alleged that in 1992, DOC personnel found a bottle of homemade wine (“buck”) in a locked footlocker containing his legal materials. Appellant denied that the wine was his. Appellant was served with a disciplinary report even though another inmate had confessed that the “buck” was his. At the disciplinary hearing, appellant was informed that the charges were dismissed. Appellant alleged that at the conclusion of the hearing a DOC employee told him that he “beat” the “D.R. on a technicality.” He also alleged that several weeks later another DOC employee stated that the disciplinary report should not have been dismissed and that both he and the inmate who confessed should have been disciplined. Attached to appellant’s complaint was a Department of Corrections’ Disciplinary Worksheet stating that the charges had been dismissed due to the fact that another inmate confessed.

In his complaint, appellant alleged that due to the absence of probable cause, the disciplinary proceedings were motivated purely based on malice. Also attached to appellant’s complaint was a letter from the Department of Insurance stating that it was in receipt of his claim and upon evaluation, it concluded that there was no negligence on the part of the State of Florida. Thus, his claim was denied and his filed closed.

In 1994, the DOC moved to dismiss appellants’ complaint claiming that appellant failed to serve a copy of the complaint upon the Department of Insurance, as required by section 768.28(7), Florida Statutes (1993), as a condition precedent to maintaining his suit against the defendants.

In 1999, appellant requested the clerk of court for indigent service of process of his complaint upon the Department of Insurance under the authority of Lemonik v. Metropolitan Dade County, 672 So.2d 899 (Fla. 3d DCA 1996).

Following a telephonic hearing, the trial court dismissed appellant’s complaint finding that appellant filed his action in 1993 and that the Department of Insurance was not served with a summons until April 1999. The court stated that timely notice and service of process on the Department of Insurance are conditions precedent to this proceeding and that the pleadings reflected that the Department of Insurance was not issued a summons until more than six (6) years after the claim occurred. Accordingly, the. court granted the DOC’s motion to dismiss and stated, appellant “may amend his Complaint within thirty (30) days. In the event [appellant] chooses not to amend his Complaint within thirty (30) days the matter will be dismissed with prejudice.”

Rather than amending his pleading to state that the requisite conditions precedent were complied with, appellant moved for rehearing or to alter or amend judgment on the grounds that service of process upon the Department of Insurance was not required to be completed within a three-year limitations period as set forth in section 768.28(7), Florida Statutes. This resulted in the dismissal of appellant’s complaint with prejudice.

On appeal, appellant argues that his action for negligence and malicious prosecution was not protected by the state’s sovereign immunity and further that there was no limitation period under section 768.28(7), Florida Statutes (1993), as to when the Department of Insurance, a non-party, could be served. As to appellant’s latter argument, we agree.

Section 768.28(7), Florida Statutes (1993), which concerns the waiver of sovereign immunity in tort actions, provides:

In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality or the Florida Space Authority, upon the Department of Insurance; and the department or the agency concerned shall have 30 days within which to plead thereto.

In Rubin v. State, Department of Transportation, 728 So.2d 1175 (Fla. 2d DCA 1998), the trial court granted the Department of Transportation’s motion to dismiss appellant’s complaint with prejudice for failure to serve the complaint upon the Department of Insurance within 120 days. In reversing, the second district held that the Department of Insurance, who must be served in tort actions under the statute on waiving sovereign immunity, was not a “defendant” within the meaning of rule 1.070(j), Florida Rules of Civil Procedure, which required service of process on a defendant within 120 days of filing the complaint. See id. at 1176 (quoting Cannon v. Yager, 658 So.2d 591, 593 (Fla. 2d DCA 1995)). Because compliance with rule 1.070(j) was not essential to acquiring jurisdiction, the court held that the failure to comply with the provisions of section 768.28(7) might warrant abatement of the lawsuit until the Department of Insurance is served. See id. (quoting Cannon, 658 So.2d at 593). See also Platt v. Fla. Dep’t of Health and Rehabilitative Servs., 659 So.2d 1251 (Fla. 1st DCA 1995).

The Rubin court went on to hold that while Cannon stated that service of the claim upon the Department of Insurance was required, section 768.28(6)(a) sets out the only time requirement which requires that the claim be presented in writing to the Department of Insurance within three years after the claim accrues. See Rubin, 728 So.2d at 1176-77. Thus, the issue became whether Rubin timely sent a written notice of claim to the Department of Insurance. See id. at 1177.

In reversing, the Rubin court held that the record demonstrated that Rubin properly and timely gave notice of her claim to the Department of Insurance and then filed her complaint within the applicable statute of limitations. The order of dismissal was reversed and remanded for the trial court to abate the proceedings in order to allow Rubin to amend her complaint to allege compliance with the notice requirements of section 768.28(6)(a) and to serve process upon the Department of Insurance in compliance with section 768.28(7). See id.

In Lemonik, following appellant’s 1988 arrest, appellant submitted his written claim for false arrest and malicious prosecution to the County and the Department in 1989 pursuant to section 768.28(6). When his claim was denied, he filed suit against the County and two police officers in 1991. The County never raised appellant’s failure to serve the Department in either its answer or its motion to dismiss. The case then proceeded to trial. In October 1994, three years and one month after his claim was denied, appellant served a copy of the summons and complaint on the Department pursuant to section 768.28(7). The County moved for summary judgment arguing for the first time that it was entitled to a judgment as a matter of law because appellant failed to serve process upon the Department within the three year period prescribed in section 768.28(6). The motion was granted by the trial court.

• In reversing, the court noted that written notice to both the Department of Insurance and the agency being sued and the denial thereof are conditions precedent to the filing and maintenance of a tort action against a sovereign body under section 768.28(6), and that appellant timely satisfied this condition prior to the commencement of the action. See Lemonik, 672 So.2d at 900. It further held that service of process upon the Department of Insurance, a non-party, although statutorily mandated, was not a precondition to the maintenance of a tort action against a governmental body. See id. “[T]he legislature did not prescribe any time frame whatsoever in section 768.28(7) for a plaintiff to effectuate service upon the Department when the Department is not otherwise a party to the action.” Id.

Lemonik and Rubin clearly state that there is no limitation period in which to serve process upon the Department of Insurance, and that service of process upon the Department of Insurance, a non-party, although statutorily mandated, is not a precondition to the maintenance of a tort action against a governmental body.

In this case, as in Rubin and Lemonik, appellant filed his written claim with the Department of Insurance in compliance with section 768.28(6); said claim was denied prior to the commencement of this action. Accordingly, this matter is remanded with directions that the trial court abate the proceedings in order to allow appellant to amend his complaint to allege compliance with the notice requirements of section 768.28(6)(a) and to serve process upon the Department of Insurance in compliance with section 768.28(7) if he has not already done so. See Rubin; Lemonik.

We affirm as to the discovery issue raised by appellant.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WARNER and TAYLOR, JJ., concur.

      . In 1997, on the DOC's motion, appellant's complaint was dismissed for lack of prosecution. In Cole v. Department of Corrections, 726 So.2d 854 (Fla. 4th DCA 1999), this court reversed and reinstated appellant's complaint.

      . According to the lower court’s docket, on April 12, 1999, appellant requested indigent service of process upon the Department of Insurance and that on April 15, 1999, a shm-mon was issued and mailed to the Insurance Commissioner and Treasurer.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Jose GONZALEZ, Appellee.
    No. 4D02-1272.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.

      Charlie Crist, Attorney General, Tallahassee, and Barbara A. Zappi, Assistant Attorney General, Ft. Lauderdale, for appellant.
    Richard W. Springer and Catherine Mazzullo of Richard W. Springer, P.A., Palm Springs, for appellee.
   WARNER, J.

' The state appeals the trial court’s order granting appellee’s motion to suppress evidence obtained when a sheriffs deputy stopped appellee for theft. The trial court held that the officer did not have reasonable suspicion to effect the stop based upon Spikes v. State, 781 So.2d 508 (Fla. 1st DCA 2001). Because we find the facts of Spikes are distinguishable, and the deputy did have sufficient reasonable suspicion of illegal activity, we reverse.

Deputy Henry Zuback (“Deputy Zu-back”) lived on a farm in Loxahatchee owned by David Steffee (“Steffee”). Deputy Zuback has known Steffee for over twenty-two years and took care of his farm. Deputy Zuback used Steffee’s tractor on a regular basis to cut Steffee’s field. Steffee’s tractor was unique — it was custom-made from steel instead of fiberglass, had a custom-made top on it, which included rectangular lights on the front and rear, and had a loader. It also had a wing mower and bush hog. A make-shift wire hanger repair had been made by Deputy Zuback to secure the motor deck because the clip was missing.

On September 20, 2001, Deputy Zuback was delivering civil papers in Loxahatchee when he passed a similar looking tractor around 7:00 in the morning, some nine to ten miles from Steffee’s farm, traveling in the opposite direction. Wdien he first saw the vehicle, Zubach noticed its similarity to Steffee’s tractor, in that they had identical features. Deputy Zuback had not been notified by Steffee that someone would be using the tractor on that day, although Steffee customarily let the deputy know if someone was borrowing his farm equipment.

Recognizing the similarities between Steffee’s tractor and the one driven by appellee, including the coat hanger repair to the motor deck, Deputy Zuback stopped the tractor and read appellee his Miranda rights. Appellee told Deputy Zuback that a man by the name of “Leonard” owed him money and that he stole Leonard’s tractor. Appellee was arrested and charged with grand theft over $20,000.

Appellee filed a motion to suppress claiming that the officer stopped him for no other reason than the tractor was allegedly similar to Steffee’s tractor. Appellee claimed Deputy Zuback could not observe any serial numbers or other identifying characteristics and certainly had no knowledge regarding his possession of the tractor.

At the hearing on appellee’s motion to suppress, Deputy Zuback testified to the above facts. On cross-examination, Deputy Zuback admitted he stopped the tractor because he recognized it, he had not spoken with Steffee that day or been informed by him that the tractor had been stolen or loaned to anyone, and he had seen other “similar” tractors on the road in the Loxa-hatchee or Pahokee area during his travels.

The trial court granted appellee’s motion to suppress, finding the facts of Spikes were “nearly identical” to those in this case. The state appeals the order.

In reviewing an order on a motion to suppress, the supreme court has explained:

[Ajppellate courts should continue to accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.

Connor v. State, 803 So.2d 598, 608 (Fla.2001), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002). “To stop and detain a person for investigation, an officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.” Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001) (citing Popple v. State, 626 So.2d 185, 186 (Fla.1993)). See also § 901.151(2), Fla. Stat. (2000). A “ ‘reasonable suspicion’ is such suspicion as would ‘warrant a man of reasonable caution in the belief that [a stop] was appropriate.’ ” State v. Evans, 692 So.2d 216, 218 (Fla. 4th DCA 1997) (quoting Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” Slydell, 792 So.2d at 671. These facts are applied and interpreted in light of the officer’s knowledge and experience. See State v. Pye, 551 So.2d 1237, 1238 (Fla. 1st DCA 1989).

The trial court determined that “it is undisputed that the Defendant was seen driving a tractor which the investigating officer recognized as belonging to someone other than the defendant.” Not only do we accord a presumption of correctness to this finding of historical fact, it is abundantly supported by the record. Although appellee suggests that his “recognition” was a bare suspicion, we disagree. Deputy Zubak had considerable knowledge of this tractor. He accompanied the owner when he purchased it; he used it to cut Steffee’s field on a regular basis; and he personally made the make-shift repair to the rear deck lid with the wire hanger. Deputy Zubak could reasonably conclude that the tractor belonged to Steffee. The deputy also had ample suspicion to investigate further. Steffee customarily notified the deputy when someone else was using the tractor, and Deputy Zubak had not been notified that Steffee had loaned it to anyone. Additionally, it was early in the morning, and the tractor was traveling away from the owner’s property. The totality of circumstances coupled with the officer’s personal knowledge would warrant a person of “reasonable caution” to believe that a stop was appropriate. Evans, 692 So.2d at 218. Indeed, Steffee might have rightfully complained if the deputy had observed what he did and not stopped appellee to prevent the loss of his tractor.

Although the trial court compared this case to Spikes, the facts in Spikes are distinguishable. In Spikes, a deputy observed a vehicle parked by the side of a rural road. See 781 So.2d at 508. When the deputy approached, the four young men in the vehicle indicated they were checking the air pressure in the car’s tires, even though none of them had an air pressure gauge. They also gave differing answers as to where they were heading. The officer gave them some directions and proceeded on. As the deputy was leaving, he took down the vehicle tag and ran a check on it. Upon learning the vehicle was registered to a seventy-two year old man but not reported as stolen, the officer turned around, pursued the four men, stopped the vehicle, and discovered drugs. The officer testified his suspicion was aroused only when he discovered the age of the owner and questioned why four young men would be driving a vehicle owned by a seventy-two year old man. See id. at 508-09. The first district held that these facts were insufficient to justify a stop. See id. at 509.

In this case, the trial court compared Spikes to the facts here and said, “[i]n both cases the officers had knowledge that the vehicle in question was being driven by someone other than the owner. Both officers suspected that the vehicle might be stolen. No other grounds existed for an investigatory stop.” However, the trial court overlooked one highly significant and important distinction between the cases. The officer in Spikes had no knowledge of the vehicle or its owner. In contrast, Deputy Zuback knew the owner and knew the owner did not loan out the tractor without notifying him. Therefore, Deputy Zuback could reasonably conclude that the tractor had not been loaned out and that a theft was occurring. Spikes does not control the disposition of this case.

Deputy Zuback articulated specific facts and personal knowledge which supported his “reasonable suspicion” that a crime was occurring. Based upon the totality of the circumstances, he operated with far more than a “mere hunch.” We therefore reverse the trial court’s order granting the motion to suppress and remand for further proceedings.

Reversed and remanded to reinstate information.

STEVENSON and HAZOURI, JJ., concur.


author: GROSS, J. MAY, J.,

text:
    Kelli S. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3710.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Kelli Smith appeals the denial of her motion to withdraw her no contest plea. We reverse.

On March 29, 2001, Smith entered her plea of no contest to two drug charges. The plea contemplated that she would be transferred to drug court for disposition. On April 16, 2001, Smith moved to withdraw her plea. She asserted that she did not understand the conditions and requirements of drug court until after the plea, when she met with a drug court representative.

At the hearing on the motion to withdraw, defense counsel told the court that at the time of the plea, drug court was still relatively new and the public defender’s office was not aware of all of its requirements. Defense counsel was therefore unable to properly advise Smith of the drug court requirements prior to entering the plea. He said that once Smith was informed of all of the conditions, she immediately told him that she wanted to withdraw her plea and go to trial.

Smith testified that her lawyer advised her that she would be evaluated for the program; if it was determined that she did not have a drug problem, then “there would be really nothing that [I would have] to do,” and charges would be dropped. After her evaluation revealed no drug problem, Smith learned that she would still face a year in drug court and have to attend regular AA or NA meetings. She explained, “I was totally unaware of anything of the whole conditions of the Drug Court ... there’s so much stuff that you have to do there. And for someone who doesn’t have a problem, I can’t see doing it.” On cross-examination, Smith acknowledged that at the plea colloquy, she said that she understood her case would be transferred to drug court and that she asked no questions about the sentence.

When a defendant files a Florida Rule of Criminal Procedure 3.170(f) motion to withdraw prior to sentencing, “[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn .... ” (Emphasis added). Thus, the trial court is obligated to allow the defendant as a matter of right to withdraw a plea if good cause is shown, while in situations where less than good cause is shown, a trial court’s decision will not be reversed absent an abuse of discretion. See Robinson v. State, 761 So.2d 269, 273-74 (Fla.1999); Catinella v. State, 732 So.2d 444, 445 (Fla. 4th DCA 1999). In either situation, this rule should be liberally construed in favor of a defendant; this is because the law inclines towards a trial on the merits, and where it appears the interests of justice would be served, a defendant should be permitted to withdraw the plea. See Robinson, 761 So.2d at 274; see also Catinella, 732 So.2d at 445.

A defendant should be permitted to withdraw a plea if she files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting her rights. Robinson, 761 So.2d at 274 (citing Yesnes v. State, 440 So.2d 628, 634 (Fla. 1st DCA 1983)). It is not enough for a defendant to merely allege one of these grounds has been met; instead “the defense must offer proof that the plea was not voluntarily and intelligently entered.” Robinson, 761 So.2d at 274.

Nothing in the record contradicted Smith’s assertion that she did not understand the requirements of drug court. The brief plea colloquy did not discuss it. The court only asked Smith eight questions. The colloquy did not cover any of the terms of the plea agreement or sentence, except to say that the ease would be transferred to drug court. The plea form referred to in the colloquy contained no information about drug court. Defense counsel conceded that he did not know enough about the program to advise his client of its particulars. Only after Smith filed her motion to withdraw the plea did the state file a copy of a drug court agreement with the trial court.

Here, Smith should have been allowed to withdraw her plea, because the record contained no evidence contradicting her misunderstanding of the requirements of her sentence. See Timothee v. State, 721 So.2d 776 (Fla. 4th DCA 1998) (allowing defendant to withdraw plea prior to sentencing where record did not contradict his claim that he misunderstood the terms of a substantial assistance agreement); see also Whipple v. State, 789 So.2d 1132 (Fla. 4th DCA 2001) (holding defendant was entitled to withdraw his guilty plea based on mis-advice of defense counsel who informed defendant prior to plea that he would face a license revocation, rather than informing the defendant he could face a permanent license revocation); Thornton v. State, 747 So.2d 439, 440 (Fla. 4th DCA 1999) (finding defendant entitled to withdraw plea where trial court failed to advise defendant that he faced a mandatory minimum sentence at plea colloquy described as “casual in its observance of formalities usually -attendant in taking pleas”); Daniels v. State, 716 So.2d 827 (Fla. 4th DCA 1998) (holding that defendant entitled to withdraw plea where neither in written petition to enter plea, nor in the plea colloquy, was he informed that he faced a possible suspension of his driver’s license); Graham v. State, 779 So.2d 604 (Fla. 2d DCA 2001) (determining defendant entitled to withdraw his plea based on counsel’s mistaken advice that his photo would not be placed on the Internet).

REVERSED AND REMANDED.

STONE, J., concurs.

MAY, J., concurs specially with opinion.

MAY, J.,

concurring specially.

I concur with the majority, but write to call attention to the need for attorneys practicing in the criminal, juvenile delinquency, family, and dependency areas to educate themselves about drug courts. In 2001, the Florida Legislature enacted Chapter 2001^8, Section 1, Laws of Florida. The statute provides:

(1) It is the intent of the Legislature to implement treatment-based drug court programs in each judicial circuit in an effort to reduce crime and recidivism, abuse and neglect cases, and family dysfunction by breaking the cycle of addiction which is the most predominant cause of cases entering the justice system. The Legislature recognizes that the integration of judicial supervision, treatment, accountability, and sanctions greatly increases the effectiveness of substance abuse treatment. The Legislature also seeks to ensure that there is a coordinated, integrated, and multidisciplinary response to the substance abuse problem in this state, with special attention given to creating partnerships between the public and private sectors and to the coordinated, supported, and integrated delivery of multiple-system services for substance abusers, including a multiagency team approach to service delivery.
(2) Each judicial circuit shall establish a model of a treatment-based drug court program under which persons in the justice system assessed with a substance abuse problem will be processed in such a manner as to appropriately address the severity of the identified substance abuse problem through treatment plans tailored to the individual needs of the participant. These treatment-based drug court program models may be established in the misdemeanor, felony, family, delinquency, and dependency divisions of the judicial circuits.

§ 397.384, Fla. Stat. (2002). Indeed, the Governor’s Office of Drug Control has identified drug courts as the “crown jewel” of its drug control strategy.

Drug courts have been in existence since 1989, originating from the creativity, hard work, and ingenuity of Chief Judge Gerald T. Wetherington and Judge Herbert M. Klein. Since then the concept has spread throughout this country and the world. There are currently drug courts in forty-eight of our fifty states, and in England, Canada, Australia, South America, Bermuda, and the Caribbean. There are currently seventy-four drug courts (thirty-eight adult, twenty-two juvenile, twelve dependency, and two re-entry) in the State of Florida. It is essential that lawyers educate themselves as to the availability, requirements, and appropriateness of drug court programs. Only then can they effectively advise their clients. It is equally important for the institutions that educate future lawyers, as well as those that educate the other disciplines that play vital roles in the drug court process to incorporate drug courts into their curricula.

For lawyers to do otherwise is for them to become legal dinosaurs. To ignore the need to learn about the drug court process is to ignore the evolution of the justice system. The sooner the Bar educates itself, the sooner the issue raised in this case will become extinct.

      . We note that had a signed drug court agreement been adequately covered in the plea colloquy, then the result in this case would have been different. See, e.g., State v. Blackwell, 661 So.2d 282, 283-84 (Fla.1995) (holding defendants not entitled to withdraw their pleas where they signed written pleas acknowledging the possibility and consequences of habitualization, where the defendants were served with written notice of a separate proceeding to determine if they qualified for habitual offender treatment, and where the court discussed the pleas and the consequences of the pleas with the defendants at the plea colloquy).


author: PER CURIAM.

text:
    Everald DICKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4387.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.
    Abe Bailey, Miami, for appellant.
    Charlie J. Crist, Jr., Attorney General, Tallahassee and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The state charged appellant with four separate violations of section 322.212, Florida Statutes (1999) because he possessed false driver’s licenses and identification cards. Appellant argues that this should have resulted in only one conviction because the statute prohibits “any” forged driver’s license or identification card.

In State v. Watts, 462 So.2d 813 (Fla.1985), the defendant had been convicted of two counts for possessing two weapons at the same time, under a statute which prohibited possession of “any” weapon. Holding that a statute which uses the article “any” is ambiguous and must therefore be construed favorably to the defendant, our supreme court determined that possession of more than one prohibited item at the same time constitutes only one offense. We agree with appellant that Watts applies and reverse for appellant to be convicted and sentenced on only one count.

In addition, the state concedes that appellant was erroneously sentenced to more than one year of time served for possession of drug paraphernalia. We have considered the other issues raised and find them to be without merit.

Reversed in part and affirmed in part.

POLEN, C.J., KLEIN and HAZOURI, JJ., concur.


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    M.L., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D02-2067.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Brinkley, Henrys & Lewis and George G. Lewis, for appellant.
    Anania, Bandklayder, Blackwell, Baum-garten, Torricella & Stein and Douglas Stein, Miami; Calianne P. Lantz, for ap-pellee.
    Before SCHWARTZ, C.J., and GERSTEN, J„ and NESBITT, Senior Judge.
   PER CURIAM.

Upon the conclusion that it is neither “clearly erroneous [n]or lacking in eviden-tiary support,” E.K.B. v. Department of Children & Families, 724 So.2d 720, 721 (Fla. 3d DCA 1999), the order below terminating the appellant mother’s parental rights is affirmed.

GERSTEN, J., and NESBITT, Senior Judge, concur.

SCHWARTZ, Chief Judge

(dissenting).

I dissent on the basis of the views expressed in S.D. v. Department of Children & Family Servs., 805 So.2d 10, 16 (Fla. 3d DCA 2001)(Schwartz, C.J., dissenting).


text:
    G.R.G. TRANSPORT, INC., Appellant, v. INTERCARGO INSURANCE CO., Appellee.
    No. 3D02-2375.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Aran, Correa & Guarch, Coral Gables, and Yvette Lisa Clements, for appellant.
    Stuart I. Levin, Miami, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   PER CURIAM.

G.R.G. Transport, Inc., a freight carrier, appeals an adverse summary judgment in a subrogation action, alleging error in not applying a limitation of liability provision appearing on its delivery receipt. We conclude that under the circumstances of this case the trial court appropriately denied enforcement of the limitation of liability and affirm.


text:
    Omar BETANCOURT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2497.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, and Joseph A. Brophy, Certified Legal Intern, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. Diaz v. State, 534 So.2d 817 (Fla. 3d DCA 1988)(“To prevail and set aside a nolo or guilty plea alleging ineffectiveness of original trial counsel, a defendant must show that he, in fact, had a ‘viable’ defense.”).


author: FARMER, J. KLEIN, J.,

text:
    NOVARTIS PHARMACEUTICALS CORP., f/k/a Sandoz Pharmaceutical Corp., Petitioner, v. Connie CARNOTO, Rene Carnoto, and Celina Poy-Wing, M.D., Respondents.
    No. 4D02-4436.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.
    Benjamine Reid and Wendy Frank Lumish of Carlton Fields, Miami, R. Lay-ton Mank of Wilsom, Elser, Moskowitz, Edelman & Dicker, Miami, and Joe G. Hollingsworth, Katharine R. Latimer, Martin C. Calhoun, Cynthia L. Kendrick of Spriggs & Hollingsworth, Washington, D.C., for petitioner.
    Richard A. Sherman of Law Offices of Richard A. Sherman, P.A., and Wilton L. Strickland of Wilton L. Strickland, P.A., Fort Lauderdale, for respondents.
   FARMER, J.

We have a petition for a writ of prohibition to disqualify a trial judge based on comments he gave to the press about a pending case. The trial judge dismissed the motion to disqualify as untimely. Upon a review of the pertinent documents, we conclude that the petition was in fact timely filed.

Because the judge found the motion untimely, he did not pass on its legal sufficiency. We therefore return the ease to the trial court for such a determination. We are confident that if this experienced trial judge finds the motion legally sufficient, he will disqualify himself without further intervention of this court.

GUNTHER, J., concurs.

KLEIN, J., dissents with opinion.

KLEIN, J.,

dissenting.

Petitioner Novartis is the defendant in a products liability suit in which it is alleged that petitioner’s drug injured the plaintiff. Petitioner seeks a writ of prohibition directed to the denial of its motion to disqualify the trial judge. I would grant the petition.

The motion to disqualify alleged that an article published in the Miami Daily Business Review, entitled “Backfire,” contained statements made by the trial judge to a reporter about documents produced by petitioner for in camera inspection. Petitioner claims the documents are privileged or otherwise confidential.

The quotes attributed to the judge included statements that: (1) petitioner Novartis was trying to “bury the plaintiffs in documents;” (2) “Novartis has only itself to blame” for developments in the litigation; (3) “the defense’s strategy backfired;” and (4) “[t]he entire database [the Special Master is creating at NPC’s expense] will provide a national plaintiffs’ blueprint for filing suit against Novartis over Parlodel [the drug in this case].”

Petitioner alleges that these statements have created reasonable fears on the part of petitioner that the judge will not be fair and impartial and that petitioner will not receive a fair trial. The court denied the motion to disqualify solely on the ground that it was untimely; however, it was timely-

In United States v. Microsoft Corp., 253 F.3d 34, 115-16 (D.C.Cir.2001), the appellate court strongly condemned the trial judge’s statements to the press, outside the presence of the parties, about a pending case:

It is an altogether different matter when the statements are made outside the courtroom, in private meetings unknown to the parties, in anticipation that ultimately the Judge’s remarks would be reported. Rather than manifesting neutrality and impartiality, the reports of the interviews with the District Judge convey the impression of a judge posturing for posterity, trying to please the reporters with colorful analogies and observations bound to wind up in the stories they write. Members of the public may reasonably question whether the District Judge’s desire for press coverage influenced his judgments, indeed whether a publicity-seeking judge might consciously or subconsciously seek the publicity-maximizing outcome. We believe, therefore, that the District Judge’s interviews with reporters created an appearance that he was not acting impartially, as the Code of Conduct and § 455(a) require.

The Code of Conduct violations referred to by the Microsoft court were Canons 3A(6) and 3A(4), Code of Conduct for United States Judges, which prohibit public comments and ex parte communications on the merits of pending cases. The Florida Code of Judicial Conduct contains those same prohibitions in Canon 3B(9) and 3B(7).

I agree with the petitioner that the quoted statements would create a reasonable fear that the judge will not be fair and impartial. The motion to disqualify should accordingly have been granted. Fischer v. Knuck, 497 So.2d 240 (Fla.1986).


text:
    P.F.G., INC., a Florida corporation, Appellant, v. SPP REAL ESTATE (CONTINENTAL PLAZA), INC., a Delaware corporation as successor to Massachusetts Mutual Life Insurance Company, Appellee.
    No. 3D02-1366.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Silver, Garvett & Henkel, and Scott A. Silver, and Shari R. Wald, for appellant.
    Mandel, Weisman, Heimberg, Brodie & Griffin, and Debra M. Cohen (Boca Raton), for appellee.
    Before SCHWARTZ, C.J., and JORGENSON, and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See Young v. Morris Realty Co., 569 So.2d 813 (Fla. 1st DCA 1990); Rodeway Inns of America v. Alpaugh, 390 So.2d 370 (Fla. 2d DCA 1980); Coast Fed. Savings and Loan Ass’n. v. DeLoach, 362 So.2d 982 (Fla. 2d DCA 1978).


author: GODERICH, Judge.

text:
    Isis CASTANO, Appellant, v. The CITY OF MIAMI, Appellee.
    No. 3D02-1639.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.

      Michael Garcia Petit, Miami, for appellant.
    Alejandro Vilarello, City Attorney, and Regine Monestime, Assistant City Attorney, for appellee.
    Before GODERICH and GREEN, JJ., and NESBITT, Senior Judge.
   GODERICH, Judge.

The plaintiff, Isis Castaño, appeals from an adverse final judgment. We reverse and remand for a new trial.

In the underlying action, the plaintiff alleged that she fell and injured her knee when the heel of her shoe became wedged between the broken tiles of a sidewalk maintained by the City of Miami [the City]. The plaintiff filed suit against the City alleging that it had breached its duty to maintain its sidewalk in a reasonably safe condition.

Before trial, on the City’s motion, the trial court ruled that the plaintiffs evidence as to the condition of the sidewalk and the City’s maintenance of the sidewalk was geographically limited to the block where the plaintiff fell and temporally limited to the six months prior to the plaintiffs fall. At the close of the plaintiffs case, the trial court granted the City’s motion for a directed verdict finding that the plaintiff had failed to present evidence of the City’s actual or constructive knowledge of the sidewalk’s condition. The plaintiffs appeal follows.

The plaintiff contends that the trial court erred by directing a verdict. We agree.

The general rule in Florida is that while a city is not an insurer of the motorist or the pedestrian who travels its streets and sidewalks, it is, of course, responsible for damages resulting from defects which have been in existence so long that they could have been discovered by the exercise of reasonable care, and repaired.

Leon v. City of Miami, 312 So.2d 518, 519 (Fla. 3d DCA 1975) (citations omitted).

At trial, the plaintiff presented evidence that the sidewalk on the block where the plaintiff fell was in “terrible condition” with several large areas of missing or broken tiles and that this condition had existed for at least six months prior to the plaintiffs fall. The plaintiff also presented evidence that the City conducted monthly inspections and that there was a lack of evidence that any repairs were done in the six months prior to her fall. This evidence when viewed in the light most favorable to the plaintiff is sufficient to establish that the defect in the sidewalk was in existence for so long that it should have been discovered by the exercise of reasonable care and repaired. Leon, 312 So.2d at 519; Schutzer v. City of Miami, 105 So.2d 492, 494 (Fla. 3d DCA 1958). We, therefore, reverse the entry of the directed verdict and remand for a new trial.

Because a new trial will be required, we address the other issue raised by the plaintiff. Although a plaintiff may introduce evidence of prior accidents, maintenance, and conditions to show notice of an ongoing problem creating a dangerous condition, see Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075, 1076 (Fla. 3d DCA 1983), review denied, 447 So.2d 889 (Fla.1984); Firth v. Marhoefer, 406 So.2d 521 (Fla. 4th DCA 1981), we find that the trial court acted within its discretion when it limited the plaintiffs evidence temporally to the six months prior to the accident and geographically to the block of sidewalk where the plaintiff fell. See Hyster Co. v. Stephens, 560 So.2d 1334 (Fla. 1st DCA)(“The admission of evidence is a matter within the sound discretion of the trial judge .... ”), review denied, 574 So.2d 141 (Fla.1990).

Affirmed, in part; reversed, in part, and remanded for a new trial.


text:
    Jagamia Astwan McKENZIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1688.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before RAMIREZ and WELLS, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. R.C. v. State, 648 So.2d 1258, 1259 (Fla. 3d DCA 1995); Martinez v. State, 339 So.2d 1133, 1135 (Fla. 2d DCA 1976); Saunders v. State, 319 So.2d 118, 124 (Fla. 1st DCA 1975).


text:
    Ekaterini Angeliki VASSILAKIS, as Wife and Personal Representative of the Estate of Georgios Vassilakis, Deceased, Appellant, v. ROYAL CARIBBEAN CRUISES, LTD., Appellee.
    No. 3D02-1601.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.

      Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin and Robert C. Josefsberg, Miami; Marvin I. Barish and Samuel J. Rosenthal, for appellant.
    McIntosh, Sawran, Peltz, Cartaya & Pe-truecelli and Louise H. McMurray, for ap-pellee.
    Before SCHWARTZ, C.J., GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Sec. Bank, N.A. v. Bell-South Adver. & Publ’g Corp., 679 So.2d 795 (Fla. 3d DCA 1996), approved, 698 So.2d 254 (Fla.1997); Armando v. Plazza, 658 So.2d 1169 (Fla. 2d DCA 1995).


text:
    T.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2297.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Andrea D. England, Assistant Attorney General, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See R.L. v. State, 738 So.2d 507 (Fla. 5th DCA 1999).


author: SCHWARTZ, Chief Judge.

text:
    Theodore Wayne NOWELLS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2537.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.

      Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Douglas J. Glaid, (Fort Lauderdale) Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and SHEVTN, JJ.
   SCHWARTZ, Chief Judge.

This is an appeal from the denial of a 3.850 motion based upon the contention that trial counsel was ineffective by failing to object to an allegedly “vindictive” sen-fence of life imprisonment with a fifteen-year minimum mandatory as a habitual violent felony offender, which was imposed despite the trial judge’s strong indication before trial that the defendant should accept a state plea offer of fifteen years. We reverse for resentencing of the defendant to fifteen years imprisonment.

The colloquy when the plea offer was declined is indistinguishable from those involved in Harris v. State, 839 So.2d 785 (Fla. 2d DCA 2003) Laferta v. State, 837 So.2d 562 (Fla. 3d DCA 2003); Nairn v. State, 837 So.2d 519 (Fla. 3d DCA 2003); McRoy v. State, 834 So.2d 275 (Fla. 5th DCA 2002); Charles v. State, 816 So.2d 731 (Fla. 3d DCA 2002); Byrd v. State, 794 So.2d 671 (Fla. 5th DCA 2001), review granted, 817 So.2d 850 (Fla.2002); and McDonald v. State, 751 So.2d 56 (Fla. 2d DCA 1999). As these cases reflect, the life sentence imposed by the trial judge after his involvement in, obvious approval of, and quite unsubtle hint that the defendant would be well advised to accept the offer of fifteen years gave rise to a presumption of legal “vindictiveness,” see Nairn, 837 So.2d at 519-20, and cases cited, which was not only totally unrebut-ted, but actually confirmed by the record. See McDonald, 751 So.2d at 59 (“But when the judge has been involved in the plea negotiation and then later imposes a harsher sentence, the sentence is presumed to be vindictive. This presumption may now be overcome only if the record affirmatively demonstrates that the defendant’s insistence on a trial was given no consideration in the sentencing.”); Laferta, 837 So.2d 562-64; Prado v. State, 816 So.2d 1155 (Fla. 3d DCA 2002); Byrd, 794 So.2d at 671; Stephney v. State, 564 So.2d 1246 (Fla. 3d DCA 1990).

Hence, on the authority of the cited cases, the sentence is reversed and the cause is remanded for the entry of a fifteen year sentence in accordance with the court-endorsed plea offer. Laferta, 837 So.2d 562-64.

Reversed and remanded.

      . THE COURT: Here’s Mr. Nowells.
      Mr. Nowells we're getting ready to start your trial, sir.
      It's my understanding, Mr. Nowells, that there has been a plea offer extended to you of fifteen years as a minimum/ mandatory for these charges as a habitual violent felony offender.
      MR. MCMILLAN [the prosecutor]: That’s correct, Your Honor.
      THE COURT: Very well.

      THE COURT: It’s also my understanding that there is a motion to suppress that’s pending and that there is a witness who needs to be brought in from out of state and the state is going to be revoking this offer if ■we embark upon either of those matters; in other words, if we bring in the out of town witness or if we embark on a motion to suppress, which we’re supposed to do at 11:00 o’clock the offer is revoked, [e.s.]
      Now it's my understanding that the police officers are available and ready to go; is that correct?
      MR. MCMILLAN: Yes, sir.
      THE COURT: Mr. Nowells, do you understand that if you go to trial in this case, that because of the charges that are involved, you could be sentenced to life imprisonment?
      THE DEFENDANT: I know that.
      THE COURT: You know that?
      THE DEFENDANT: Yes, sir.
      THE COURT: Do you understand that the state has made an offer to you which is in keeping with—
      They have discretion to do whatever it is that they wish to do. The offer that they have made to you is what they feel is a proper offer in this case.
      The court would have to find that you are not a danger to the community in order to go below the state's offer and I am unwilling to offer you anything else, sir, based upon your record. I am unwilling to find that you are not a danger to the community. That is my responsibility, [e.s.]
      Fifteen years as a habitual violent offender appears to be the best that you’re going to get, sir, in terms of an offer, versus the possibility of being sentenced to life if you're convicted, and I’m told that the state has a very good case against you.

        I suggest, sir, that you sit down once again and talk to yourself and talk to your lawyer and give it one more chance, as far as whether or not you want to accept this offer or whether you want to proceed to trial, because if you want to proceed to trial, by 11:00 o’clock this offer will be off the table, [e.s.]

        By 11:00 or 11:15, this offer will be off the table, so I suggest that you take five minutes or so with Mr. Matszal [defense counsel] in the jury room one more time and go over all of your options with regard to the case.
      Have Mr. Matszal tell you the strengths of the state's case versus the strengths of your possible defenses in this case and think about it again.
      MR. MATSZAL: Your Honor, my client has asked me to speak to the police officers and discuss the possibility of a lower sentence with them.
      The officers will tell you that he was cooperative, but the main officer is not in a position to recommend any reduction in time.
      His position is just that it's the state attorney’s office decision.
      THE COURT: I think that the state has already done that, and Mr. McMillan can tell you this, but I think that the state has taken into account whether cooperation has previously been given by Mr. Nowells to the police in offering him the fifteen years today.
      MR. McMILLAN: We have, judge, and that’s why we’re offering the fifteen year minimum/mandatory.
      We have considered that.
      THE COURT: It’s not getting any better, Mr. Nowells.
      THE DEFENDANT: I ain’t taking no fifteen years mandatory, though.
      THE COURT: Very well, then.

      THE COURT: Now, if I’m correct, the only thing I have left is Mr. Nowells’ case.

      THE COURT: Very well.
      Let the record reflect the presence of Mr. Matszal, Mr. Nowells’ attorney. The Defendant is also present, as are the prosecutors.
      For the record, we have reviewed Mr. Nowells’ situation with regard to the plea offer earlier today and the defendant has had ample opportunity to discuss this with his lawyer.
      Mr. Nowells, is that correct?
      THE DEFENDANT: Yes, sir.
      THE COURT: What do you wish to do?
      THE DEFENDANT: I can’t take that.
      That's life, itself; fifteen years mandatory. That's life.
      THE COURT: Sir, I didn’t ask you that. I asked you a simple question.

        I asked you if you have reviewed that offer with your attorney, [e.s.]
      THE DEFENDANT: Yes, sir.
      THE COURT: And, you don’t want to accept the state’s offer of a fifteen year minimum/mandatory sentence?
      THE DEFENDANT: No, sir.

        That’s life itself.

      THE COURT: Mr. Nowells, you and I are going to have real problems during the course of the trial if you don’t just answer my questions, [e.s.]
      I asked you a simple question.
      I asked you if you wanted to accept the state’s offer, yes or no?
      THE DEFENDANT: Do I accept it?
      THE COURT: Do you want to accept the state's offer of fifteen years, minimum/man-datoiy, as a sentence for this charge?
      THE DEFENDANT: No, sir.
      THE COURT: Let’s proceed with the motion to suppress, please.
      State, call your first witness.

      . At sentencing, the trial judge specifically stated that:
      I remember explicit and long discussions with regard to the plea offer to Mr. Nowells where we were talking to him in terms of the enhanced [penalty that] will be sought against him.

      . At the resentencing, the trial court should also reconsider the double jeopardy issue of whether the dual convictions and sentences for burglary with a battery and a battery on a person over the age of sixty-five years are permissible in light of the then prevailing law. See Torna v. State, 742 So.2d 366 (Fla. 3d DCA 1999); Lewis v. State, 740 So.2d 82 (Fla. 3d DCA 1999). Compare State v. Reardon, 763 So.2d 418 (Fla. 5th DCA 2000), review dismissed, 806 So.2d 446 (Fla.2002).


text:
    Miguel ZAVALA, Appellant, v. Silvester DOSTER, Appellee.
    No. 3D02-438.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Amarillys E. Garcia-Perez, for appellant. ■
    John D. Hoffman, Miami, and Alex Suarez, for appellee.
    Before GODERICH, GREEN and FLETCHER, JJ.
   PER CURIAM.

Affirmed. Brown v. South Broward Hosp. Dist., 402 So.2d 58, 59 (Fla. 4th DCA 1981)(“[W]here the very work the employee is engaged to do creates the hazard whereby he is injured, the employee ‘assumes the risk by accepting the employment.’ ”)


text:
    Douglas M. JACKSON, Sr., Petitioner, v. The STATE of Florida, Respondent.
    No. 3D02-2694.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Douglas M. Jackson, Sr., in proper person.
    Charles J. Crist, Jr., Attorney General, for respondent.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   ON PETITIONER’S MOTION FOR ENFORCEMENT OF WRIT OF MANDAMUS

PER CURIAM.

Petitioner has filed a motion to enforce our prior writ of mandamus issued in this case. We deny the motion because the relief the petitioner now seeks is different from the relief we granted in the prior writ of mandamus. Petitioner seeks to enforce an order directing the circuit court to accept a suit petitioner filed against Horace Sermon and a complaint attached in which petitioner listed Aramark Food Service Corp. and Ivan Williams as defendants. The current motion, however, seeks to enforce mandamus in a different suit filed against defendant S. Mangham Tate.

Denied.


text:
    EDEN OWNERS ASSOCIATION, INC., Appellant, v. EDEN III, INC., Roy Anderson Corp., American Home Assurance Company, Patrick T. Hope, Roy Anderson, Jr., Roy Anderson, III, John C. Ellis and Charles F. McReynolds, Appellees.
    No. 1D02-2795.
    District Court of Appeal of Florida, First District.
    March 20, 2003.
    Christopher T. McRae and David J. Metcalf of McRae & Metcalf, P.A., Tallahassee, for Appellant.
    Michael D. West of Huey, Guilday, Tucker, Schwartz & Williams, P.A., Tallahassee, for Appellee Patrick T. Hope.
    Charles F. Beall, Jr. and J. Lofton Westmoreland of Moore, Hill & Westmore-land, P.A., Penscaola, for Appellees Eden III, Inc., John C. Ellis, and Charles F. McReynolds.
    Robert A. Emmanuel of Emmanuel Sheppard and Condon, Pensacola, for Ap-pellees Roy Anderson Corp, American Home Assurance Company, Roy Anderson Jr. and Roy Anderson, III.
   PER CURIAM.

The appellant challenges a nonfinal order staying the underlying civil proceedings and compelling arbitration. It contends that the appellees waived the right to seek arbitration because they had prior knowledge of an existing right to arbitrate and engaged in acts inconsistent with that right. Specifically, the appellant asserts that it raised arbitrable issues in its initial and first amended complaints, and thus the appellees waived arbitration by responding to these complaints, engaging in pre-trial litigation, and failing to request arbitration until after the appellant’s second amended complaint. Because we conclude that the appellant failed to set forth an actionable claim based upon breach of the construction contract or other contracts containing arbitration provisions until the second amended complaint, and because the appellees promptly moved to compel arbitration thereafter, the appel-lees’ responses to the initial and first amended complaints did not constitute a waiver. See, e.g., Georgia Power Co. v. Partin, 727 So.2d 2 (Ala.1998); see also Miami Dolphins, Ltd. v. Cowan, 601 So.2d 301 (Fla. 3d DCA 1992) (noting that the party seeking to prove waiver of a right to arbitrate must demonstrate knowledge of an existing right to compel arbitration, facts inconsistent with that existing right, and prejudice to the party opposing arbitration resulting from inconsistent acts; party arguing waiver of arbitration bears a heavy burden of proof); Dickinson v. Heinold Securities, Inc., 661 F.2d 638 (7th Cir.1981) (finding that “no waiver of the right to arbitrate can occur from conducting discovery on non-arbitrable claims.”); accord Rush v. Oppenheimer & Co., 779 F.2d 885 (2d Cir.1985).

The order below is accordingly affirmed.

VAN NORTWICK and POLSTON, JJ„ and SMITH, LARRY G., Senior Judge, concur.


author: SHARP, W„ J.

text:
    YUN ENTERPRISES, LTD., Appellant, v. Edward J. GRAZIANI, etc., et al., Appellee.
    No. 5D02-1145.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.

      Scott D. Clark of Scott D. Clark, P.A., Winter Park, for Appellant.
    H. Gregory McNeill and Rachel D. Ge-baide of Lowndes, Drosdick, Doster, Kan-tor, & Reed, P.A., Orlando, for Appellee.
   SHARP, W„ J.

Yun Enterprises, Ltd. (Yun) appeals from: 1) a final summary judgment in favor of Graziani and Menicucci, doing business as BLT Hospitality (BLT) in an action for fraud and breach of contract and 2) the denial of Yun’s motion for rehearing and to amend its complaint. We agree the documents Yun attached to its complaint were insufficient to establish the existence of a contract between the parties and the trial judge was correct to enter summary judgment for BLT. However, under the circumstances of this case, we think the trial judge should have given Yun an opportunity to amend its complaint at least once, given its belated showing of executed documents which may establish a contract.

Yun was the owner of a hotel in Kissim-mee which was under contract for sale to another buyer. On April 9, 1998, BLT offered Yun a “Backup Purchase and Sale Agreement” in case this contract terminated. By its terms, the backup agreement became null and void if not executed on or before April 20, 1998. Yun did not want a backup contract and did not sign the agreement in April, although he did sign it in May 1998.

According to Yun, negotiations with BLT continued and the parties ultimately came to an agreement for BLT to purchase the hotel. However, in June 1998, BLT notified Yun that it was not in a position to move forward with the “negotiations” on the purchase of the hotel.

Two years later, Yun filed this lawsuit against BLT for breach of contract and fraud in the inducement. Yun attached three documents to its complaint which purportedly comprised the agreement of the parties: Exhibit A — the “Backup Purchase and Sale Agreement” signed by BLT on April 9, 1998 and signed by Yun on May 18, 1998; Exhibit B — “Addendum to Purchase and Sale Agreement” signed by Yun in May 1998, but not signed by BLT; and Exhibit C — “Addendum to Purchase and Sale Agreement II” dated May 26, 1998 and signed by BLT but not by Yun.

BLT answered the complaint and denied the allegation the parties had entered into a contract. BLT also asserted several affirmative defenses, including that Exhibits A, B and C do not form a valid enforceable agreement between the parties. BLT later moved for summary judgment on the same basis.

In opposition to BLT’s motion for summary judgment, Yun submitted an affidavit and attached another copy of the May 26, 1998 “Addendum to Purchase and Sale Agreement II.” This copy contained the signatures of both parties. At the summary judgment hearing, Yun admitted, for whatever reason, the copy with both signatures was not attached to its complaint. Yun conceded BLT could have raised this issue by a motion to dismiss and Yun would have been required to amend its complaint to include this copy.

Even so, BLT pointed out the Addendum to Purchase and Sale Agreement II purports to modify Exhibit B (the Addendum to Purchase and Sale Agreement) but the documents do not correspond. For example, the Addendum to Purchase and Sale Agreement II states that it modifies paragraphs 3a and 3b of the Addendum to Purchase and Sale Agreement but that document does not have those paragraphs. Yun acknowledged these discrepancies but argued this simply went to the interpretation of the contract. The judge found there was no meeting of the minds and granted BLT’s motion.

On December 18, 2001, the court entered final summary judgment in favor of BLT. The next day, Yun filed a motion for rehearing and for leave to amend its complaint. Yun alleged another “Addendum to Purchase and Sale Agreement” (Exhibit E) should replace Exhibit B attached to its complaint. According to Yun, Exhibit B was an earlier draft and Exhibit E is the final version of that addendum. Yun’s motion was denied.

We find the trial judge’s granting of summary judgment was proper because the documents attached to Yun’s complaint cannot be reconciled with each other and do not establish a valid contract. While an enforceable contract can consist of several instruments in writing, the contract nevertheless must show an actual meeting of the minds of the contracting parties. Cook v. Theme Park Ventures, Inc., 633 So.2d 468 (Fla. 5th DCA 1994); Rohlfing v. Tomorrow Realty & Auction Co., Inc., 528 So.2d 463 (Fla. 5th DCA 1988).

The trial judge abused his discretion, however, in denying Yun leave to amend its complaint to incorporate the new addendum. A party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment. Cardona v. Benton Exp., Inc., 804 So.2d 505 (Fla. 3d DCA 2001); Assad v. Mendell, 550 So.2d 52 (Fla. 3d DCA 1989). According to Florida Rule of Civil Procedure 1.190(a), “Leave of court [to amend pleadings] shall be given freely when justice so requires.”

A lower court’s decision to permit or deny amendment to pleadings will not be disturbed on appeal in the absence of an abuse of discretion. Gate Lands Co. v. Old Ponte Vedra Beach Condominium, 715 So.2d 1132 (Fla. 5th DCA 1998). However, all doubts should be resolved in favor of allowing amendments so that cases may be resolved on their merits. Thus, as a general rule, refusal to allow amendment constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Gate Lands Co.; Karn v. Coldwell Banker Residential Real Estate, Inc., 705 So.2d 680 (Fla. 4th DCA 1998); Assad

Yun had not amended its complaint pri- or to its request for leave to replace Exhibit B with Exhibit E in the attachments to its complaint. According to Yun, this document is the final draft (Exhibit B being an earlier draft) and resolves the discrepancies which troubled the judge at the summary judgment hearing. We think Yun should be given an opportunity to properly allege the elements of the contract between the parties. See Assad (although trial court properly entered summary judgment in favor of sellers on buyers’ claim that sellers misrepresented condition of home after they signed contract, court nevertheless abused its discretion in denying buyers leave to amend complaint to state sellers made misrepresentations before contract was signed).

AFFIRMED in part; REVERSED in part and REMANDED.

ORFINGER and MONACO, JJ., concur.


author: ORFINGER, J.

text:
    Justin David CHESNOFF, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1763.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.

      Cindy L. Lasky, of Lasky & Ondriezek, P.A., Jacksonville, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Justin Chesnoff appeals his aggravated battery conviction. He argues that the trial court erred by allowing a physician to testify that the victim’s injuries were severe, and by providing the jury an instruction on the meaning of the term “great bodily harm.” We find no error and affirm.

Chesnoff was charged with one count of aggravated battery causing great bodily harm in violation of section 784.045(I)(a)l., Florida Statutes (2001). Chesnoff, a nineteen-year-old, was at a party also attended by D.C., the fourteen-year-old victim. Without warning, Chesnoff and Seneca, his co-defendant, punched D.C. in the face, knocking him to the ground. Chesnoff and Seneca then kicked D.C. in the head and body fifteen to twenty times while he lay on the ground unconscious. Various witnesses to the incident testified that after the beating, D.C.’s lips were “the size of a banana ... [and] his head was the size of a basketball.” D.C.’s face was so swollen that his mother did not recognize him the next morning.

At trial, Dr. Tracey Weiner, the emergency room physician who examined D.C., testified that D.C. had moderate swelling on his face and lips and that his eyes were swollen shut, but that the x-rays and a CT scan of D.C.’s head were both normal. Over defense objection, Dr. Weiner testified that he viewed D.C.’s injury as “severe” because of the facial injuries and D.C.’s loss of consciousness.

The information filed in this ease required the State to prove that Chesnoff intentionally or knowingly struck D.C. causing great bodily harm. Because determinations about the extent of a victim’s injuries are generally questions of fact left to the jury, see Zellars v. State, 707 So.2d 345, 346 (Fla. 5th DCA 1998), Chesnoff contends that while it was appropriate for Dr. Weiner to testify to the facts, ie., the victim’s actual injuries, it was error for him to characterize those injuries as severe. We disagree.

A trial court has broad discretion in determining the range of subjects on which an expert witness can testify, and, absent a clear showing of error, the court’s ruling on such matter will be upheld. McMullen v. State, 714 So.2d 368 (Fla.1998). While the trial court’s discretion is not without limits, an expert is generally permitted to testify when Ms or her specialized knowledge will “assist the trier of fact in understanding the evidence or in determining a fact in issue.” § 90.702, Fla. Stat. (2001). The opinion of an expert should be excluded where the facts or opinions testified to are of a kind that do not require any special knowledge or experience in order to form a conclusion, or are of such a character that they may be presumed to be within the common experience and knowledge of the jurors. See Bryant v. Buerman, 739 So.2d 710, 712 (Fla. 4th DCA 1999); State Farm Mut. Auto. Ins. Co. v. Penland, 668 So.2d 200, 202 (Fla. 4th DCA 1995).

Further, an expert witness may render an opinion on the ultimate issue in a case. Section 90.703, Florida Statutes (2001), provides:

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact.

Dr. Weiner was qualified as a expert in emergency medicine. He used his specialized knowledge to assist the jurors in understanding the extent of the victim’s injuries. Dr. Weiner’s conclusion was not an opinion of Chesnoff s guilt; rather, it was a medical conclusion as to the severity of D.C.’s injuries. § 90.703, Fla. Stat. (2001). See e.g., Bush v. State, 809 So.2d 107, 119 (Fla. 4th DCA 2002) (a new trial was not warranted because state expert witnesses did not improperly give an opinion as to defendant’s guilt; rather, they gave a medical conclusion on the inconsistencies between defendant’s reports and the physicians’ physical findings); Hamilton v. State, 696 So.2d 914, 915 (Fla. 2d DCA 1997) (in DUI manslaughter ease, expert’s opinion that defendant was driving eastward was not an opinion of guilt but a permissible opinion based upon the physical evidence available to the jury). Merely because a witness expresses an opinion on an ultimate issue does not compel the jury to find that opinion to be true. Behm v. Div. of Admin., State Dep’t of Transp., 292 So.2d 437, 440 (Fla. 4th DCA 1974), approved, 336 So.2d 579 (Fla.1976). The jury was free to reject Dr. Weiner’s opinion that the victim suffered a severe injury even though that opinion was unrebutted. E.g., Easkold v. Rhodes, 614 So.2d 495 (Fla.1993) (jury may give expert opinion testimony whatever weight that it finds the testimony deserves); Tolley v. Dep’t of Health & Rehabilitative Servs., 667 So.2d 480, 482 (Fla. 5th DCA 1996) (the trier of fact may accept or reject all or any part of an expert’s testimony). Consequently, we conclude that the trial court did not abuse its discretion in permitting the examining physician to testify about the severity of the victim’s injuries.

Chesnoff also argues that the trial court erred by improperly instructing the jury on the meaning of the term “great bodily harm.” A trial court has wide discretion in instructing the jury, and the court’s decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal. Carpenter v. State, 785 So.2d 1182, 1199-1200 (Fla.2001). A trial judge is not constrained to give only those instructions contained in the Florida Standard Jury Instructions. Carpenter, 785 So.2d at 1200; Cruse v. State, 588 So.2d 983 (Fla.1991). While it is preferable that a standard jury instruction is given if it adequately explains the law, see, e.g., McGuire v. State, 639 So.2d 1043, 1047 (Fla. 5th DCA 1994), and giving a non-standard instruction that misleads the jury is reversible error, see, e.g., Doyle v. State, 483 So.2d 89, 90 (Fla. 4th DCA 1986), the trial court’s decision to give a particular instruction will not be reversed “unless the error complained of resulted in a miscarriage of justice, or where the instruction or failure to give a requested instruction was reasonably calculated to confuse or mislead the jury.” Reyka v. Halifax Hosp. Dist., 657 So.2d 967, 969 (Fla. 5th DCA 1995). Thus, absent “prejudicial error,” the trial court’s decision will not be disturbed on appeal. Card v. State, 803 So.2d 613, 624 (Fla.2001).

In analyzing the instructions given in this case, we conclude that the trial court did not abuse its discretion in providing a definition of the term “great bodily harm.” The standard jury instructions provide no definition of great bodily harm. Consequently, the State requested a special instruction defining “great bodily harm” in the context of aggravated battery. Specifically, the State asked the court to define “great bodily harm” as provided in Coronado v. State, 654 So.2d 1267, 1270 (Fla. 2d DCA 1995). The defense objected, conceding that the Coronado definition was not erroneous, but arguing that based on Johnston v. State, 774 So.2d 952, 954 (Fla. 5th DCA 2001), it was unnecessary for the trial court to provide a definition of great bodily harm.

The judge gave the jury the standard instructions for aggravated battery, which required the jury to find that the defendant intentionally touched or struck the victim against his will and, in committing the battery,- caused great bodily harm to the victim. Over the earlier defense objection, the judge instructed the jury on the definition of “great bodily injury.” Using the definition taken from Coronado, the judge advised the jury that great bodily harm in the context of aggravated battery means “great [harm] as distinguished from slight, trivial, minor or moderate harm and as such, does not include mere bruises as are likely to be inflicted in a simple assault and battery.”

“ ‘[Wjhat is important is that sufficient instructions — not necessarily academically perfect ones — be given as adequate guidance to enable a jury to arrive at a verdict based upon the law as applied to the evidence before them.’ ” Heck v. State, 774 So.2d 844, 845 (Fla. 4th DCA 2000) (quoting State v. Bryan, 287 So.2d 73, 75 (Fla.1973); Avila v. State, 745 So.2d 983, 985 (Fla. 4th DCA 1999)). “If jury instructions, viewed as a whole, fairly state the applicable law to the jury, the failure to give particular instructions will not be error.” See CSX Transp., Inc. v. Whittler, 584 So.2d 579, 586 (Fla. 4th DCA 1991). Viewed as a whole, the jury instructions utilized here fairly stated the applicable law.

We find no merit in Chesnoffs other issues.

AFFIRMED.

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


author: KELLY, Judge.

text:
    Otneil Bolanos CALDERON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1460.
    District Court of Appeal of Florida, Second District.
    March 21, 2003.
   KELLY, Judge.

Otneil Bolanos Calderon appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Calderon raised five claims of ineffectiveness of defense counsel. On claims one, two, three, and five, we reverse. We conclude claim four was facially insufficient and affirm the denial of that claim.

Mr. Calderon was indicted for one count of premeditated first-degree murder and two counts of attempted first-degree murder with a firearm. In 1999, a jury found him guilty as charged of first-degree murder. It returned verdicts of attempted second-degree murder on the remaining two charges.

In his rule 3.850 motion, Mr. Calderon first claimed that his counsel was ineffective for failing to advise him that he needed to testify in order to have sufficient evidence to allow a jury instruction on self-defense. Mr. Calderon alleged that the victims began a fight and wielded a gun and a knife. He claimed that as the victims rushed him he feared for his life and had to defend himself. Although the defense requested an instruction on self-defense, none was allowed because the court found the evidence supporting such an instruction too speculative.

In denying Mr. Calderon’s 3.850 claim, the trial court failed to provide record attachments to refute the claim. Instead, it found there was a colloquy that showed Mr. Calderon waived his right to testify. That colloquy, however, does not address whether defense counsel advised Mr. Calderon about the need to testify in order to gain or ensure an instruction on self-defense. Therefore, we reverse. On remand, the trial court may again deny Mr. Calderon’s claim if his allegation is conclusively refuted by record attachments. If it cannot be refuted by record attachments, then Mr. Calderon must be afforded an evidentiary hearing. See Lenoir v. State, 741 So.2d 1148 (Fla. 2d DCA1999).

Next, Mr. Calderon claimed his defense counsel was ineffective for failing to definitively establish the sequence in which the shootings took place and failing to ask a key question, ‘Who was shot first?” At trial, the State had asserted that Mr. Calderon shot the decedent first in retaliation for an earlier altercation between the decedent and one of Mr. Calderon’s friends. Mr. Calderon’s motion refers to conflicting testimony of various witnesses that indicates the decedent was not shot first, which would be consistent with Calderon’s claim that he acted in self-defense when a fight suddenly broke out between him and the three victims. In rejecting this claim, the trial court stated Mr. Calderon could not have been prejudiced because it was clear Mr. Calderon acted with a premeditated design to kill all three victims. The trial court did not provide record attachments refuting Mr. Calderon’s claim.

Mr. Calderon was convicted of two counts of attempted second-degree murder for two of the victims. Implicit in this verdict is the jury’s determination that those attempts were not premeditated. If the defense had definitively established that the deceased victim was not the first one shot, it would have negated the State’s version of how the shooting occurred, and the jury may well have found that this shooting was not premeditated. Accordingly, the record does not support the trial court’s determination that Mr. Calderon failed to demonstrate how he was prejudiced. On remand, if the trial court again determines that the claim should be summarily denied, it should attach the portions of the record that demonstrate conclusively that Mr. Calderon is not entitled to relief. Otherwise, it should conduct an evidentiary hearing. See Armstrong v. State, 806 So.2d 547, 548 (Fla. 2d DCA 2001).

In his third claim, Mr. Calderon asserted defense counsel was ineffective for failing to ask a key State witness, whose credibility was critical, about his past criminal record. Mr. Calderon asserted that the witness had an extensive criminal history and he advised his attorney of the matter. The portion of the record attached by the trial court to refute the claim does not do so. It merely reflects the witness was questioned about whether he had pending charges. Because the trial court did not refute the claim, we reverse for an evidentiary hearing. See Rachel v. State, 780 So.2d 192 (Fla. 2d DCA 2001).

The fifth claim asserts defense counsel was ineffective because he failed to object to the prosecutor’s prejudicial statements in closing argument, which vouched for the credibility of State witnesses and urged to the jury that a gang-related assassination had occurred. The trial court found the remarks were proper comments on the evidence. We disagree. See Gomez v. State, 751 So.2d 630, 632 (Fla. 3d DCA 1999) (holding that the prosecutor improperly weighed in with her own opinion of the credibility of witnesses, and the impropriety was compounded by other improper arguments including that the defendant was a gang leader who had dealt with guns). The record attachments to the trial court’s order do not conclusively refute the claim regarding the failure to object to improper closing argument. Therefore, we reverse for the trial court to attach the portions of the record that demonstrate conclusively that Mr. Calderon is not entitled to relief. Otherwise it should conduct an evidentiary hearing. See Perry v. State, 787 So.2d 67, 68 (Fla. 2d DCA 2001); Rachel, 780 So.2d at 193-94. This alleged error, when placed in context with Mr. Calderon’s other unrefuted claims, could very well have affected the outcome of the case.

In his remaining claim, Mr. Calderon seeks a new trial because his defense counsel was ineffective for failing to inform the court and law enforcement that he was a foreign national. Mr. Calderon claims that had defense counsel done so, the court or law enforcement would have been required to advise him that he had the right to consult with a consular or diplomatic officer of his country under Article 36 of the Vienna Convention on Consular Relations (Vienna Convention). Mr. Calderon alleged he came to this country from Cuba as an adult and his understanding of United States law and court procedure was limited. He alleged that had he been able to speak to a consular officer, he would have been more fully informed of the differences between Cuban law and Florida law and would have learned he could have gone against his defense counsel’s advice not to testify in his own behalf.

We find Mr. Calderon’s claim to be facially insufficient. Mr. Calderon did not allege how long he had been in the United States, what his ties to Cuba were other than technical citizenship, the level of his education and experience, his language skills or lack thereof, his prior contacts with the court systems in either Cuba or the United States, or any further information that would support a claim he did not understand the nature of the proceedings or his rights. He makes no allegation that his counsel failed to educate himself on Mr. Calderon’s status as a foreign national, only that his counsel failed to inform the court and law enforcement that he was a foreign national. He does not articulate particular facts showing that had he been notified of his right to speak to a consular officer he would have done so or that there was a likelihood the contact with the consul would have resulted in assistance to him. See generally Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (stating the Vienna Convention arguably confers on an individual the right to consular assistance following arrest, but holding that Breard’s claim was procedurally barred and that any showing of prejudice was doubtful); U.S. v. Rangel-Gonzales, 617 F.2d 529 (9th Cir.1980) (holding, in the context of deportation proceedings, that to establish prejudice an alien must show that he did not know of his right to consult with consular officials, that he would have availed himself of that right had he known of it, and that there was a likelihood that the contact would have resulted in assistance to him).

Mr. Calderon’s assertions are merely conclusory and are facially insufficient to establish a claim of ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We therefore affirm the denial of the claim.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and COVINGTON, JJ., Concur.

      . The trial court disposed of this claim by stating Mr. Calderon did not have standing to assert a violation of the Vienna Convention. The issue of a criminal defendant's standing to assert a violation of the Vienna Convention is frequently raised as an issue when a defendant seeks a judicial remedy, such as suppression of evidence or dismissal of an indictment, for an alleged violation of the treaty. However, Mr. Calderon is not asserting a violation of the treaty. He is arguing that because his attorney did not inform law enforcement or the court of his status, they in turn were never obligated to advise him of his rights under the Convention. A defendant of course has standing to assert a claim of ineffective assistance of counsel for failure to investigate facts, circumstances, pleadings, and laws in a particular case, including laws affecting the rights of foreign nationals.


author: THOMPSON, C.J.

text:
    W.V., Father of S.D., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-1589.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.

      Jeffrey L. Dees, Daytona Beach, for Appellant.
    Annette Pitts, Assistant District Legal Counsel, Daytona Beach, for Appellee.
   THOMPSON, C.J.

W.V. (“the father”) appeals an order adjudicating his child, S.D., dependent. We affirm.

A shelter petition was filed by the father on 18 December 2001 because the mother, with whom the child had been residing, was arrested for violation of probation. On 14 January 2002, the Department of Children and Families filed a petition for dependency. The mother consented to the dependency, but the father denied the dependency, and the case was heard on 19 March 2002.

Witnesses, including the father, testified that S.D. was present when domestic violence occurred between the mother and father. The father admitted that the police had been to his home on numerous occasions for domestic altercations and some of these altercations occurred in the presence of S.D. The father testified that one of his daughters was accidentally hurt during a domestic disturbance, and he admitted to hitting the mother, the maternal grandmother, his sister, and “possibly” an employee. The maternal grandmother testified that on one occasion the father tried to leave with S.D. after an altercation with the mother, and when the maternal grandmother attempted to grab S.D., the father punched the grandmother causing a concussion. The mother testified of numerous injuries that the father had inflicted upon her, and she testified that the father physically abused her while she was pregnant with S.D. Further, the mother testified that she thought that S.D. was extremely violent because of the home environment.

A trial court’s findings as to abuse, abandonment, or neglect of a child will be upheld if they are supported by competent, substantial evidence. S.M. v. Department of Children and Families, 832 So.2d 242 (Fla. 5th DCA 2002). “Abuse” includes any willful or threatened act that results in injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. § 39.01(2), Fla. Stat. “Harm” includes engaging in violent behavior that demonstrates a wanton disregard for the presence of the child, section 39.01(30)(I), Florida Statutes, and includes domestic violence committed in the presence of the child, see F.R. v. Department of Children and Families, 826 So.2d 449 (Fla. 5th DCA 2002) (the trial court’s findings that a pattern of pushing, shoving, and beatings directed against the mother in the presence of the children, causing behavioral problems, was sufficient to support a finding of dependency). There was competent, substantial evidence produced at trial to conclude that there was a pattern of domestic violence warranting a finding of abuse to S.D.

Further, section 39.01(45) defines “neglect” as, “when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment....” Section 39.01(30)©, Florida Statutes, also provides that “within the context of the definition of harm, the term ‘neglects the child’ means that the parent or other person responsible for the child’s welfare fails to supply the child with adequate food, clothing, shelter, or health care, although financially able to do so or although offered financial or other means to do so.”

In the instant case, the evidence also supported the trial court’s finding that S.D. had been neglected. The father and mother testified that S.D.’s teeth were rotting and falling out. Although the father testified that he attempted to get help for SJD.’s teeth, the grandmother testified that the father never approached her about putting S.D. on Medicaid. Further, the father did not pay child support although it was court ordered.

The trial court’s findings are supported by competent, substantial evidence, and the order of adjudication is affirmed.

AFFIRMED.

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


author: SAWAYA, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. L.D. and J.S., Parents of C.S. and J.S., children, Appellees.
    No. 5D02-2042.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.

      Charles D. Peters, Orlando, for Appellant.
    No Appearance for Appellees.
   SAWAYA, J.

In this termination of parental rights case, the Department of Children and Families (the Department) appeals the order that “abated entering judgment for 90-days” to give the mother additional time to satisfy the case plan requirements and, in the case of the father, to actually begin compliance with the case plan. The Department argues that the trial court erred in abating the judgment and accepting evidence of case plan compliance and child visitation after the trial had concluded. The absence of a brief filed by the parents leads us to conclude that they have elected not to participate in these proceedings. We will proceed without them.

Our initial task is to determine whether we have jurisdiction to review the order the Department seeks to appeal. We must first analyze the order to determine what it actually is — an order of abatement, which is generally utilized to terminate one of two actions that are pending simultaneously that involve the same parties and issues, or a stay of proceedings, which essentially postpones the action until a contingency occurs. See Williams v. Edwards, 604 So.2d 930 (Fla. 5th DCA 1992). The difference between the two types of orders is important because an order staying a proceeding is not an appealable non-final order. See Perry v. Fireman’s Fund Ins. Co., 379 So.2d 429 (Fla. 2d DCA 1980) (citing Fla. R.App. P. 9.130(a)). Although we are not certain whether the language “abated entering judgment” is simply phraseology couched in the idiom of the trial judge or a misnomer, we believe that the trial judge actually intended to stay the proceedings rather than terminate them. While a stay order is a non-appealable interlocutory order, we may, nevertheless, treat the notice of appeal from that order as a petition for certiorari under Florida Rule of Appellate Procedure 9.030(b)(2)(A). Williams v. Edwards, 604 So.2d 930 (Fla. 5th DCA 1992); Perry; see also Martinez v. Iturbe, 823 So.2d 266 (Fla. 3d DCA 2002). Having elected to do so, we proceed with our review.

Turning now to the facts of the case, the parents’ two children were sheltered in June 2000 because the parents abused drugs and engaged in domestic violence. The next month, the Department filed a dependency petition, and the children were returned to the custody of the parents. Unfortunately, conditions in the home did not improve, and the children were subsequently placed in foster care. The Department filed its termination petition based on the parents’ noncompliance with the proffered case plan and failure to take advantage of their visitation rights. Apparently, the evidence presented at the final hearing did not quite convince the trial judge that the Department had met its burden of proof, so she requested written closing arguments to assist her as she contemplated her decision.

The parents were chided by the trial court for their lack of motivation to “get their children back,” and the mother, who took the scolding to heart, began attending parenting class, made attempts to find a job, continued her work on the case plan, and completed the domestic violence program. At a subsequent review hearing of rather short duration that was conducted before submission of the written closing arguments, the mother submitted her post-hearing efforts to the trial judge who, apparently being favorably impressed, announced that she would abate the proceedings to give the parents another chance to comply with the case plan. The Department did not object. This ruling was memorialized in the order under review. The Department subsequently filed a petition for writ of mandamus, which this court denied. Thereafter, the Department filed the instant appeal, which, as we have previously indicated, we have elected to treat as a certiorari proceeding.

While several standards of review are utilized to review petitions for writs of certiorari, when an appellate court reviews an non-appealable non-final order rendered by a trial court, the party seeking review must demonstrate that the trial court departed from the essential requirements of law and that the resulting harm is irreparable and cannot be remedied on appeal following final judgment. Belair v. Drew, 770 So.2d 1164 (Fla.2000); Jaye v. Royal Saxon, Inc., 720 So.2d 214 (Fla.1998); Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987); S.H. v. Department of Children & Families, 769 So.2d 452 (Fla. 5th DCA 2000).

The Department argues there is no legal basis for the trial judge’s refusal to rule on the termination petition and that this refusal constitutes reversible error. We disagree. The trial court did not refuse to rule on the Department’s petition: it simply granted a stay for a definite period of time. The decision to grant or deny a stay is based on the trial court’s discretion and, absent a clear showing of abuse of that discretion, the decision will not be disturbed. Onett v. Ahola, 780 So.2d 979 (Fla. 5th DCA 2001).

Here, the Department did not object to the 90-day stay. Moreover, it has failed to demonstrate that the trial court abused its discretion in ordering the stay. Hence, the Department has failed to demonstrate that the trial court departed from the essential requirements of law. Once the 90 day period expires and the trial court renders its final decision, the Department may certainly challenge any adverse ruling via direct appeal. Therefore, the Department has also failed to demonstrate that it has no adequate remedy on appeal after the final judgment is rendered.

As to the Department’s argument that the trial court erred in considering evidence after the hearing had concluded, it is clear that the termination hearing was not actually concluded. Rather, as we have indicated, it was stayed. Thus, the trial court’s consideration of evidence after the hearing recessed was not error.

Finally, we note that parental rights implicate fundamental liberty interests, and the Department must establish that termination of parental rights is the least restrictive means available to protect the children from harm. In re K.C.C., 750 So.2d 38, 40 (Fla. 2d DCA 1999); see also Department of Health & Rehabilitative Servs. v. M.B., 701 So.2d 1155, 1163 n. 13 (Fla.1997). 'This is a decision that no court should take lightly or rush through. See Beveridge v. Mardis, 682 So.2d 1142, 1143 (Fla. 2d DCA 1996) (“[T]he court should vigilantly adhere to all statutory and procedural requirements before taking the drastic final step of terminating ... parental rights.”). We do not believe that the trial court abused its discretion in staying the hearing, considering additional evidence, and taking additional time to “get it right.”

AFFIRMED.

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


text:
    Tommy BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0006.
    District Court of Appeal of Florida, First District.
    March 21, 2003.
    Nancy A. Daniels, Public Defender and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Bryan Jordan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The defendant’s ten-year sentence is reversed to the extent that purports to enhance the statutory maximum for the crime of battery on a law enforcement officer under the Releasee Reoffender statute. The defendant’s classification as a releasee reoffender resulted in the imposition of a five-year mandatory minimum, but it did not extend the five-year maximum that otherwise applies to a third degree felony. The outer limit of the sentence in this case was properly enhanced by the trial court’s concurrent classification of the defendant as a habitual offender.

We recognize that the trial court attempted to correct this error by granting the defendant’s motion under rule 3.800(b). However, the order was not effective to modify the original sentence, because it was rendered after the expiration of the period in which the trial court had jurisdiction. See Blake v. State, 814 So.2d 1163, 1164 (Fla. 1st DCA 2002); Wilson v. State, 792 So.2d 601 (Fla. 4th DCA 2001); Kimbrough v. State, 766 So.2d 1255, 1256 (Fla. 5th DCA 2000). Therefore, we must reverse and remand for resentencing.

On remand, the trial court shall make it clear that the defendant was not sentenced to ten years as a releasee reoffender, but rather that he received a ten year sentence under the habitual offender statute with a five year mandatory minimum under the releasee reoffender statute. The defendant need not be present at resentencing. In all other respects the sentence is affirmed.

Affirmed in part and reversed in part.

BARFIELD, KAHN and PADOVANO, JJ., concur.


text:
    William J. REEDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2445.
    District Court of Appeal of Florida, First District.
    March 21, 2003.
    Nancy A. Daniels, Public Defender; Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Sherri T. Rollison, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals a sentence of seventy-five months in the Department of Corrections imposed after he was re-sentenced pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). Appellant claims the trial judge erred in re-sentencing him without the assistance of appointed counsel. We agree. When a defendant is re-sentenced pursuant to Heggs v. State, a de novo hearing is required. The defendant is entitled to be present at the hearing and to receive the assistance of counsel. Jenkins v. State, 816 So.2d 780 (Fla. 5th DCA 2002) (ruling that in re-sentencing proceedings, such as the one here, the defendant is entitled to a de novo hearing and the assistance of counsel).

Accordingly, we vacate Appellant’s sentence and remand for re-sentencing.

REVERSED AND REMANDED.

VAN NORTWICK AND POLSTON, JJ„ and SMITH, LARRY G., Senior Judge, concur.


text:
    Willie A. STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-576.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.
    Willie A. Stewart, Milton, Pro Se.
    No Appearance for Appellee.
   ORFINGER, J.

Willie A. Stewart appeals the denial of his motion for postconviction DNA testing filed pursuant to section 925.11(l)(a), Florida Statutes (2002), and Florida Rule of Criminal Procedure 3.853. Stewart pled nolo contendere to sexual battery. He now maintains that DNA testing of certain evidence in the State’s possession will exonerate him. The trial court denied Stewart’s motion because he pled nolo conten-dere to the charge and did not go to trial. We affirm.

Section 925.11(l)(a) provides that a defendant “who has been tried and found guilty of committing a crime” may petition the court for DNA testing, (emphasis added). A defendant who enters a plea of guilty or nolo contendere may not seek postconviction DNA testing based on language of the statute. See Reighn v. State, 834 So.2d 252 (Fla. 1st DCA 2002); accord Epps v. State, 835 So.2d 1217 (Fla. 4th DCA 2003).

AFFIRMED.

THOMPSON, C.J., and MONACO, J., concur.

      . Florida Rule of Criminal Procedure 3.853 provides the procedure for obtaining DNA testing under section 925.11, Florida Statutes.

      . We observe that in adopting Rule 3.853 to provide a procedural mechanism to implement section 925.1 l(l)(c), the Florida Supreme Court refused to extend the right to DNA testing to defendants who entered guilty or nolo contendere pleas. See Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853, 807 So.2d 633, 634-35 (Fla.2001).


author: GRIFFIN, J.

text:
    Joseph Lawrence WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-375.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.
    Joseph Lawrence Williams, Malone, pro se.
    No Appearance for Respondent.
   GRIFFIN, J.

Joseph Lawrence Williams [“Williams”] petitions for a writ of habeas corpus, seeking a belated appeal.

Williams entered a no contest plea to the sale, manufacture, or delivery of cocaine and received a ten-year sentence, which conformed to the plea bargain. He appealed, and this court affirmed without opinion. Williams v. State, No. 01-3283, 812 So.2d 432 (Fla. 5th DCA 2002).

Now, in this petition, Williams complains that trial counsel did not properly investigate his case and did not properly handle an earlier plea offer of twenty-four months. This is not a belated appeal ha-beas corpus case. If the claim is cognizable at all, it is a matter for post-conviction review under Florida Rule of Criminal Procedure 3.850.

WRIT DENIED.

SHARP, W., and SAWAYA, JJ., concur.