author: WARNER, J.

text:
    Keith R. WOLFE, Appellant, v. Nancy B. WOLFE, Appellee.
    Nos. 4D02-3898, 4D02-4587.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Rehearing Denied Feb. 26, 2004.

      Steven M. Pesso of Steven M. Pesso, P.A., and Jeanne C. Brady of Brady & Brady, Boca Raton, for appellant.
    Cynthia L. Greene of Law Offices of Greene, Smith & Associates, P.A., Miami, and Law Offices of Sara Blumberg, P.A., Boynton Beach, for appellee.
   WARNER, J.

The husband appeals a final judgment of dissolution of marriage in which the substantial assets of the parties were evenly split, and the wife received $13,000 per month in permanent periodic alimony. The husband complains about the size of the award, claiming that the wife did not need that amount of alimony, as her lifestyle during the marriage was frugal. In contrast, the husband claimed that by having to pay this amount of alimony he could not maintain his own lifestyle, which included purchasing season tickets to various sporting events and taking regular gambling trips.

We affirm all of the awards made. Although the wife did not spend as lavishly on herself as did the husband during the marriage, that does not mean that she is not entitled to maintain herself in the standard of living to which the parties were accustomed during the marriage. See Bacon v. Bacon, 819 So.2d 950, 954 (Fla. 4th DCA 2002). Her accountant testified that she would need $14,500 per month (before taxes) to maintain her standard of living and in arriving at this amount, excluded many of the luxuries that the husband appointed to himself. The accountant was examined and cross-examined on his figures. Thus, the trial court possessed substantial competent evidence to support its ruling, and the award is not an abuse of discretion.

As to the award of attorney’s fees to the wife, while the assets were distributed equally between the parties, the husband’s income still exceeds that of the wife. We therefore find no abuse of discretion in requiring the husband to pay the wife’s attorney’s fees.

On cross-appeal the wife claims that the court erred in failing to require the husband to pay her fees and costs incurred with respect to the taking and obtaining of a deposition of the wife’s physician. The court reasoned that thé husband should not be required to pay those fees because it was reasonable for him to take the deposition. The determination of whether to allocate fees to a particular party in a dissolution action centers on the need of the payee and the payor’s ability to pay. See Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). While the trial court may consider other factors, including the merits of the parties’ arguments or one party’s use of the court to harass the other, see id. at 700, where there is need and ability to pay, a trial court abuses its discretion in denying fees, or a portion of a fee, on the ground that the actions of the party who incurred the particular fees were reasonable. The trial court did not find that the wife’s fees were unreasonable, or that she had engaged in non-meritorious litigation. The court recognized that the excluded fees were incurred as a result of the husband’s discovery demands. We therefore reverse and remand to include in the fee award the fees related to the taking of the physician’s deposition.

Affirmed in part; reversed in part and remanded for further proceedings on the attorney’s fee award.

GROSS and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas MARTONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-494.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Thomas Martone, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The trial court summarily denied appellant’s motion for postconviction relief. We reverse the order with respect to claims one, five, six, seven, sixteen, twenty-one, twenty-three and twenty-four, and remand for the attachment of records conclusively refuting these claims or for an evidentiary hearing on these issues. We note that the state’s response was inadequate because it appears that the state addressed the memorandum of law filed by appellant, not the motion for posteonviction relief itself. Had it done so, it would have realized that these claims were legally sufficient and should not have been denied on procedural grounds.

We affirm the order on the remaining issues raised.

STONE, WARNER and POLEN, JJ., concur.


text:
    Kejricvajal GRIFFIN, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D03-745.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2004.
    Appellant Kejricvajal Griffin, pro se, Lake Butler.
    Anthony W. Garcia, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Caldwell v. State, 821 So.2d 374 (Fla. 1st DCA 2002); Quigley v. Dep’t of Corrections, 745 So.2d 1029 (Fla. 1st DCA 1999).

KAHN, BENTON and VAN NORTWICK, JJ., concur.


author: ALLEN, J.

text:
    Maurice MAYNARD, Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D02-1048.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2004.

      Bill McCabe, Longwood, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Lynn C. Hearn, Deputy Solicitor General, Tallahassee, for Appellee.
   ALLEN, J.

The appellant challenges an order by which his civil action against the Department of Corrections was dismissed upon a finding that the appellant failed to provide the Department of Insurance with the pre-suit notice required by section 768.28(6)(a), Florida Statutes (2000). Although the appellant sent notices to several entities, those notices did not fully satisfy the requirements of section 768.28(6)(a), and the action was properly dismissed.

The appellant’s claim against the Department of Corrections was based on alleged negligence while the appellant was an inmate at the Liberty Correctional Institute. With his original complaint the appellant provided a copy of a letter sent to the Department of Corrections for the section 768.28(6)(a) presuit notice. He subsequently filed an amended complaint, with a copy of an earlier letter sent to Liberty County for that purpose. The Liberty County letter refers to occurrences at the “Liberty County Correctional Institution,” while indicating that Liberty County owned and controlled this facility. The letter alleges negligence by Liberty County, and requests a money settlement. The later letter to the Department of Corrections refers to the same occurrences but places them at the “Liberty Correctional Institute,” while indicating that the State of Florida owned and controlled this facility. Asserting that the Department of Corrections owed the appellant a duty of care, the letter alleges negligence and requests a money settlement.

In proceeding on his claim against the Department of Corrections the appellant relied on the state’s waiver of sovereign immunity at section 768.28, but this statute expressly precludes the action unless a written claim is first presented to the appropriate agency and the Department of Insurance. See § 768.28(6)(a). The presuit notice requirement is a condition precedent, see section 768.28(6)(b), which serves the purpose of giving the appropriate entities an opportunity to investigate and time to respond. E.g. Metropolitan Dade County v. Reyes, 688 So.2d 311 (Fla.1996); Cunningham v. Department of Children and Families, 782 So.2d 913 (Fla. 1st DCA), rev. denied, 797 So.2d 585 (Fla.2001). And as an aspect of the sovereign immunity waiver, the section 768.28(6)(a) notice provision is strictly construed, with strict compliance being required. E.g. Reyes; Levine v. Dade County School Board, 442 So.2d 210 (Fla.1983); Broward County School Board v. Joseph, 756 So.2d 1077 (Fla. 4th DCA 2000).

The notices which the appellant provided do not fully comport with section 768.28(6)(a), with material deficiencies which frustrate the purpose of the statute. Insofar as the appellant is proceeding now against the Department of Corrections, the letter to Liberty County did not notify the appropriate agency and does not correctly identify the involved facility. While that letter shows that it was copied to the Department of Insurance, this did not advise the Department of Insurance of any need to investigate or respond on behalf of the Department of Corrections. And while the subsequent letter to the Department of Corrections did provide notice to the appropriate agency and correctly identifies the involved facility, it does not appear that this letter was copied to the Department of Insurance. The Department of Insurance was thus still not advised of any need to investigate or respond on behalf of the Department of Corrections. Therefore, even when the letters are considered together, it does not appear that the Department of Insurance was ever properly noticed as required by section 768.28(6)(a).

The appellant completely failed to notify the Department of Insurance of any claim against the Department of Corrections. As in Lopez v. Prager, 625 So.2d 1240 (Fla. 3d DCA 1993), rev. denied, 634 So.2d 625 (Fla.1994), this failure to comply with the presuit notice requirement of section 768.28(6)(a) precludes the negligence action which the appellant filed against the Department of Corrections. Indeed, in Hamide v. Department of Corrections, 584 So.2d 136 (Fla. 1st DCA 1991), we cautioned that there is little room for substantial compliance under section 768.28(6), while referencing the directive in Levine that the statutory notice provision must be strictly construed. Because the appellant here failed to comply with the presuit notice requirement, the action below was properly dismissed.

The appealed order is affirmed.

ERVIN and LEWIS, JJ., concur.


text:
    Gerald M. McKIRE, Appellant, v. James CROSBY, Jr., Secretary, Florida Department of Corrections, Appellee.
    No. 1D02-5007.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2004.
    Gerald M. McKire, for appellant, pro se.
    No appearance for appellee.
   PER CURIAM.

Gerald McKire, a state inmate, appeals an order by which his petition for writ of mandamus was dismissed for failure to provide the financial documentation required by section 57.085, Florida Statutes. The circuit court dismissed McKire’s petition prior to the decision in Schmidt v. Crusoe, 28 Fla. L. Weekly S367, — So.2d -, 2003 WL 1987971(Fla. May 1, 2003), motion for reh’g filed, No. SC00-2512 (Fla. May 21, 2003), in which the supreme court held that where, as here, a prisoner challenges the loss of gain-time as a result of a disciplinary action, such a claim is a collateral criminal proceeding, and the prisoner’s right to proceed as an indigent is thus determined in accordance with section 57.081, rather than section 57.085.

In addition, although he did so after the circuit court was divested of jurisdiction by the filing of his notice of appeal, the record reflects that McKire has now provided the court a copy of the required financial documentation as an attachment to his motion for reinstatement. Accordingly, we reverse and remand for the trial court to reconsider appellant’s eligibility to proceed as an indigent in light of Schmidt and the attachment to his motion for reinstatement.

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    Terry L. DUNN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1961.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2004.
    Appellant, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from the summary denial of appellant’s motion to vacate his judgment and sentence for the offense of second-degree murder pursuant to Florida Rule of Criminal Procedure 3.850. We affirm all issues raised, except that asserting the lower court erred in denying his motion pertaining to counsel’s failure to preserve and argue the defense that he committed the homicide in the heat of passion, which, if it had been raised, may have resulted in appellant’s conviction of the lesser offense of manslaughter. We agree that appellant has raised a prima facie claim for relief on this issue; accordingly, we reverse the summary denial and remand the case with directions for the trial court to attach portions of the record that refute this contention or hold an evi-dentiary hearing. See Lusk v. State, 498 So.2d 902 (Fla.1986) (rejecting defendant’s claim that counsel was ineffective for failing to present a defense based upon heat of passion, finding, after an evidentiary hearing, that the strategy of arguing self-defense only was reasonable under the circumstances).

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    Michael BARNISHIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0741.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Williams v. Fla. Parole Comm’n, 760 So.2d 959, 960 (Fla. 1st DCA 2000) (“[T]he expedient course of action at this time would be for Williams to refile his petition ... in the circuit court which presently has jurisdiction.”).

BOOTH, BENTON, and LEWIS, JJ., concur.


author: THOMPSON, J.

text:
    Michael Gene ROWL, Appellant, v. Donna Jeannine ROWL, Appellee.
    Nos. 5D02-1952, 5D02-3703.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Tiffany M. Chill and Keersten Heskin Martinez of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee.
   THOMPSON, J.

Michael Gene Rowl (“former husband”) appeals a judgment of dissolution of marriage. We affirm.

The former husband contends that the judgment should be reversed because the trial court did not render its judgment until over nine and a half months after the last day of trial. In instances of a delayed judgment, a reversal is warranted when the judgment contains deficiencies or inconsistencies. See Walker v. Walker, 719 So.2d 977 (Fla. 5th DCA 1998); see also Florida Air Academy, Inc. v. McKinley, 688 So.2d 359, 360 (Fla. 5th DCA 1997); Fitzpatrick v. Fitzpatrick, 678 So.2d 8 (Fla. 1st DCA 1996). In the instant case, although the judgment was delayed by nine and a half months, the former husband has failed to show that the judgment contained inconsistencies or deficiencies that would warrant a reversal. Next, although the former husband does not dispute the reasonableness of the hourly rate charged by the former wife’s attorneys, he contends that the number of hours expended on the case was unreasonable. Additionally, the former husband argues that the rate of $75 per hour for paralegal work was also unreasonable. Whether to award attorney’s fees is a matter within the trial court’s sound discretion. Vitalis v. Vitalis, 799 So.2d 1127, 1132 (Fla. 5th DCA 2001). The prevailing law requires the trial court in dissolution proceedings to assess the needs of the parties seeking fees and to award reasonable fees accordingly. DeLillo v. DeLillo, 848 So.2d 454, 454 (Fla. 4th DCA 2003). The trial court must make findings to substantiate the awards and allow for meaningful review. Id. This court has held that the trial court’s failure to make findings of fact in the judgment as to the number of hours spent and a reasonable hourly rate will subject the judgment to reversal and remand. See Porzio v. Porzio, 812 So.2d 485 (Fla. 5th DCA 2002); see also Saporito v. Saporito, 831 So.2d 697 (Fla. 5th DCA 2002) (holding that reversal of attorney’s fees was required where the trial court failed to make specific findings as to the number of hours reasonably expended and an hourly rate).

In the instant case, the trial court specified in the final judgment the number of hours expended and the hourly fee. The trial court found that the former wife’s attorneys’ fees were not duplicative and that the hourly rates charged and time expended on the case were reasonable and comparable to the hourly rates prevailing in the community for similar services by lawyers. At the hearing, one of the former wife’s attorneys testified and provided a record detailing the type and amount of work performed. See Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985) (stating that to accurately assess the labor involved, the attorney fee applicant should present records detailing the amount of work performed). Additionally, there was testimony at trial that the former wife incurred additional legal fees because of the former husband’s failure to pay child support and failure to maintain insurance for the former wife and children. We find no abuse of discretion in the attorney’s fee award. Furthermore, we find the paralegal’s rate was reasonable and supported by the evidence.

The former husband further argues that the trial court abused its discretion in determining that the former husband earned a substantially greater income than the wife and had the ability to pay the former wife’s attorney’s fees. Although the former wife was not completely unable to pay attorney’s fees, it is evident that the former husband had a superior financial ability. The former husband’s income had been $55,000 per year for the past year and a half, while the former wife had recently begun working full time at $7.75 per hour. In addition, she had paid her previous attorney fees of almost $17,000. Given that the former husband’s income is approximately $55,000 per year, the amount of attorney’s fees that the trial court ordered the former husband to pay was reasonable. Compare Deakyne v. Deakyne, 460 So.2d 582, 583 (Fla. 5th DCA 1984) (citing Patterson v. Patterson, 399 So.2d 73 (Fla. 5th DCA 1981)) (where one party has superior financial ability to secure counsel, it is not necessary that the other spouse be completely unable to pay attorney’s fees).

Finally, the former husband argues that the former wife did not establish a need for rehabilitative alimony. An award of rehabilitative alimony must be based on an adequate and credible plan presented to the court. Beasley v. Beasley, 717 So.2d 208 (Fla. 5th DCA 1998). The spouse must present evidence establishing the objective of the rehabilitation, the areas in which rehabilitation is desired, and the amount of rehabilitative alimony necessary. Kalmanson v. Kalmanson, 796 So.2d 1249, 1250 (Fla. 5th DCA 2001). An award must be based on an adequate and credible rehabilitative plan, assuming that the requesting party also demonstrates his or her need and the other party’s ability to pay. Layeni v. Layeni, 843 So.2d 295 (Fla. 5th DCA 2003). Although the reviewing court is not to substitute its judgment for that of the trial court through re-evaluation of the evidence, the reviewing court should determine whether the trial court’s judgment is supported by competent evidence. Saporito, 831 So.2d at 701.

In this case, the former wife testified that she did not have a college or technical degree and that she was planning to return to school to receive an education in sign language interpretation. The former wife testified it would take approximately five to seven years if she attended full time and seven to ten years if she attended part time because she would need to immerse herself in the new language. The former wife testified that as an interpreter, she would make $12 to $24 per hour, while her current pay rate was $7.75 per hour. The former wife testified that she could not afford to obtain the degree without rehabilitative alimony, and she estimated that she needed $500 per month to obtain her degree. In its judgment, the trial court found that the former wife was capable of rehabilitation and had the ability to obtain sufficient education and training to enable her to become employed in sign language translation. The trial court found that the former wife had been homemaker and caretaker while she followed her husband during his career in the Navy, that the former husband’s income was substantially greater than the former wife’s income, and that without rehabilitative alimony, the former wife would be unable to sustain a standard of living acquired during the marriage. We conclude that the judgment ordering rehabilitative alimony was supported by competent evidence.

AFFIRMED.

PETERSON and TORPY, JJ., concur.


author: PALMER, J.

text:
    MAYFAIR INTERNATIONAL, INC., Appellant/Cross-Appellee, v. David DEL GARDO, etc., et al., Appellee/Cross-Appellant.
    No. 5D02-2105.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.

      T. Todd Pittenger of Lowndes, Dros-dick, Doster, Kantor & Reed, P.A., Orlando, for Appellant/Cross-Appellee.
    Berry J. Walker, Jr. of Walker & Tu-dhope, P.A., Maitland, for Appellee/Cross-Appellant.
   PALMER, J.

Mayfair International (the broker) appeals the final order entered by the trial court granting summary judgment in favor of appellee, David Del Gardo (the seller), based upon the finding that the broker was not entitled to recover a real estate commission. Concluding that the trial court erred in ruling that an accord and satisfaction occurred in this case, we reverse.

The broker sued the seller and others based upon an Exclusive Listing Agreement which had been executed by the parties. The Listing Agreement provided, among other things, that a ten percent commission would be paid to the broker on the gross sales price of the property, as well as on any options or fees, and that the entire commission would be due in cash at the time of closing. Sale of the property closed but, at the time of summary judgment, the broker had not yet received its total commission. The broker sued for the balance of the unpaid commission, as well as contractual attorney’s fees and costs, alleging that without its approval or consent, the buyer (Buena Vista Shores) had executed a separate agreement with the seller proposing to pay the broker a portion of its commission in cash at closing and the remaining balance in a balloon payment three years later, as evidenced by a promissory note. The complaint further alleged that the promissory note had been given to the broker, but the broker had not sought enforcement of same.

The seller filed an answer denying liability and asserting several affirmative defenses including equitable estoppel, waiver, accord and satisfaction, release, and payment.

The broker filed a motion for summary judgment, arguing that the evidence of record demonstrated that the seller had breached the term of the parties’ Listing Agreement. The seller responded by filing an affidavit in opposition to the motion stating that the broker had verbally agreed with the seller to be paid by the buyer. That motion was denied by the trial court. The seller then filed a motion for summary judgment on its affirmative defense of statutory accord and satisfaction. The broker filed an affidavit in opposition to the motion stating, among other things, that it had never verbally or in writing agreed to modify any of its rights under the parties’ Listing Agreement. Upon review, the trial court found that statutory accord and satisfaction applied and entered a summary judgment accordingly. The broker challenges this ruling, arguing that the statute is not applicable to the instant facts. We agree.

Section 673.3111(4) of the Florida Statutes (2001) sets forth the elements of statutory accord and satisfaction, providing in relevant part:

673.3111. Accord and satisfaction by use of instrument
(1) If a person against whom a claim is asserted proves that that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, that the amount of the claim was unliq-uidated or subject to a bona fide dispute, and that the claimant obtained payment of the instrument, the following subsections apply.
* * *
(4) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant ... knew that the instrument was tendered in full satisfaction of the claim.

(Emphasis added).

The accord and satisfaction provisions set forth in this statute have no application to the instant facts because the instant lawsuit is based upon a claim for breach of the parties’ Listing Agreement, not an action on the promissory note. Additionally, Mayfair has not “obtained payment of the instrument” (i.e., the promissory note), nor attempted to collect on the note. Accordingly, the trial court’s ruling entering summary judgment on the basis of statutory accord and satisfaction must be reversed and this case remanded for further proceeding consistent with this opinion.

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.

      . See § 673.3111, Fla. Stat. (2001).

      . The seller cross-appealed asserting that the trial court abused it discretion in denying his motion for leave to amend his answer to add a claim for attorney's fee. This claim is moot in light of this court’s order reversing the summary judgment, since the seller will be able to again seek leave to amend his answer to include a claim for attorney's fees.


text:
    Allison M. COSTELLO, etc., Appellant, v. THE CURTIS BUILDING PARTNERSHIP, Appellee.
    No. 5D02-3117.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.

      Leon H. Handley, David B. Falstad and James M. Kloss of Gurney & Handley, P.A., Orlando, for Appellant.
    Patrick C. Crowell of Patrick C. Cro-well, P.A., Orlando, for Appellee.
   PALMER, J.

In this landlord/tenant dispute, Allison Costello (landlord) appeals the summary judgment entered in favor of the Curtis Building Partnership (tenant). We reverse.

The tenant filed suit against the landlord seeking specific performance of a purchase option provision set forth in a lease agreement. The lease agreement was entered into in 1925 with respect to certain unimproved property located in Orlando. The agreement provided for a lease term of 99 years with rent fixed at $1,800 per month. The landlord agreed, in addition to granting the tenant a 99-year term, to provide the tenant with the following purchase option:

And the lessors do hereby grant to the lessees exclusive right at their option any time after the 25th year of the term of this lease to purchase the said premises for the sum of Thirty Thousand Dollars ... PROVIDED ALWAYS that the right of the lessees to exercise the option of purchase is expressly created upon the faithful performance and observance by the lessees of all the covenants, agreements and conditions on their part herein contained and the payment to the lessors of the rent hereby reserved up to the date of the completion of the said purchase.

The lease agreement further provided that the tenant would begin construction on a building on the premises by 1926 and would maintain all buildings erected on the premises and as well as rebuild same if destroyed by fire.

The tenant’s complaint alleged that pursuant to the above-cited option provision the tenant had tendered the purchase price to the landlord and requested conveyance of the property, but that the landlord had refused to accept the tender or to make said conveyance.

The landlord filed an answer to the complaint generally denying liability and asserting several affirmative defenses as well as a counterclaim. In her counterclaim, the landlord asserted a claim for declaratory relief regarding the above-mentioned purchase option clause. Specifically, the landlord sought a declaration that the purchase option clause had expired or terminated on May 15, 1926 (one year after the date the lease was executed) because the tenant had failed to comply with the lease provision which required the construction of a building on the subject property.

The tenant filed an answer to the counterclaim and asserted several affirmative defenses, including defenses of estoppel and waiver. The estoppel claim was premised upon previous litigation which had taken place between the parties in 1999 wherein the landlord had sought to remove the tenant from the property due to the tenant’s non-payment of rent, and the tenant had counterclaimed asserting a request for a declaratory judgment stating that its leasehold interest was valid and in full force. Said litigation had been resolved by entry of a final judgment which adopted a stipulation prepared by the parties. The final judgment in relevant part reads as follows:

Plaintiffs action [for tenant removal] is dismissed with prejudice. The Counterclaim of the Defendant, The Curtis Building Partnership, for declaratory judgment is granted and it is hereby DECLARED and ADJUDICATED that the leasehold interest represented by that certain Lease ... is valid and in full force and effect, and has validly passed into the hands of The Curtis Building Partnership pursuant to that certain Assignment of Lessor’s Interest in Leases and Assumption Agreement dated August 19, 1993. The terms of the aforesaid Lease remain in full force and effect, except that the parties have agreed that the quarterly payment of rent called for in the Lease will be paid on or before the first of the month in the month beginning each new calendar quarter, with the thirty-day grace period to run from that date. No provision herein shall prevent either of the parties from bringing future actions against the other to enforce the terms and conditions of the Lease in relation to alleged future breaches.

The tenant eventually filed a voluntary dismissal of its claim for specific performance, but also filed a motion for summary judgment on the landlord’s counterclaim, arguing that a declaration should be entered by the trial court stating that the purchase option clause was still valid and enforceable because (1) the landlord had waived her right to raise any challenge to the validity of the purchase option since the landlord had continued to accept rent payments from the tenant for more than 75 years without ever seeking enforcement of the lease provision which required the construction of a budding on the subject property; or, in the alternative, (2) the doctrine of res judicata barred the tenant from litigating the validity of the purchase option clause since that issue could have been, but was not, raised during the course of the parties’ 1999 litigation. Upon review, the trial court entered a summary judgment in favor of the tenant, ruling that the purchase option clause was still valid and enforceable and that the landlord was precluded, by application of the doctrines of waiver and res judicata, from asserting the claim that the tenant’s failure to construct a building on the property as required by the lease operated to void or cancel the option. The landlo’rd challenges this ruling, arguing that the evidence of record fails to support the trial court’s conclusions that the doctrines of waiver and res judicata bar1 the landlord from challenging the validity of the purchase option clause set forth in the parties’ lease agreement. '

WAIVER

The trial court reasoned that, by accepting rent payments from the tenant for more than 75 years, the landlord had waived her right to argue that the purchase option clause was invalid. We disagree.

Waiver is the intentional relinquishment of a known right. In order to constitute waiver, the party’s conduct must establish clear relinquishment, and while conduct can imply waiver, the conduct relied upon to do so must- make out a clear case of waiver. Waiver does not arise merely from forbearance for a reasonable time. Aspen Inv. Corp., v. Holzworth, 587 So.2d 1374 (Fla. 4th DCA 1991); Destin Savings Bank v. Summerhouse of FWB, Inc., 579 So.2d 232 (Fla. 1st DCA 1991).

In concluding that the landlord waived her right to argue that the purchase option clause was invalid, the trial court relied upon Wing v. Arnold, 107 So.2d 765 (Fla. 3d DCA 1958). However, such reliance was misplaced. The facts in Wing are distinguishable from the facts presented sub judice in that the instant record is devoid of any evidence indicating that the landlord engaged in any conduct during the course of the instant leasehold which would have created in the mind of the tenant the belief that the purchase option was still valid and enforceable. While the landlord’s conduct in accepting rent over the course of the past 75 years constitutes sufficient evidence to support the conclusion that the landlord has waived the right to assert the tenant’s failure to construct a building on the property as a basis to terminate the tenant’s leasehold interest, such conduct by itself is insufficient to support the conclusion , that the landlord waived the right to enforce the conditions precedent required for the exercise of the purchase option. Accordingly,. the trial court’s finding of waiver must be reversed. See South Inv. Corp., v. Norton, 57 So.2d 1 (Fla.1952)(holding that in suit for specific performance of lease-option agreement, evidence was insufficient to show that landlord waived requirement of lease-option agreement that tenant must not be in default under lease at time of exercise of option to purchase).

RES JUDICATA

The trial court also held that the landlord’s claim that the purchase option clause was invalid was barred by application of the doctrine of res .judicata, reasoning that the final judgment entered in the parties’ 1999 litigation determined that the tenant’s interests in the lease, including the tenant’s interest in the purchase option clause, were valid and enforceable. We again disagree.

Res judicata precludes the relitigation of the same claim between the same parties on the same cause of action. Hochstadt v. Orange Broadcast, 588 So.2d 51, 52 n. 1 (Fla. 3d DCA 1991). In order for res judicata to bar a subsequent action, four identities must be present: 1) identity of the thing sued for, 2) identity of the cause of action; 3) identity of persons and parties; and 4) identity of the quality or capacity of the persons for or against whom the claim is made. Donahue v. Davis, 68 So.2d 168 (Fla.1953); Husky Indus., Inc. v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982).

The trial court erred in applying the doctrine of res judicata in this lawsuit because this lawsuit does not involve the same thing sued for as was sued for in the parties’ 1999 litigation. In the 1999 litigation the parties were seeking a determination of whether the tenant was entitled to maintain its leasehold interest notwithstanding the fact that the tenant had technically breached the lease by failing to pay rent. In contrast, the thing sued for here is a determination of whether the purchase option clause set forth in the parties’ lease agreement is valid and enforceable. The record is clear that no issue was presented during the 1999 litigation concerning the validity of the purchase option clause, although the landlord certainly could have argued that the tenant’s leasehold rights had terminated due to the tenant’s failure to construct a building on the property as well as due to the non-payment of rent.

Having concluded that the trial court erred in applying the doctrines of waiver and res judicata, we reverse the instant summary judgment order and remand for further proceedings.

REVERSED and REMANDED.

SAWAYA, C.J., and GRIFFIN, J., concur.


author: SHARP, W., J.

text:
    Melvin PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3737.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.

      Melvin Perez, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Perez appeals from the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking post-conviction relief. The motion is untimely because it was filed more than two years after Perez’s conviction and sentence for second degree murder with a firearm (the criminal case he seeks to attack in this motion) became final. In his motion, Perez failed to allege any basis for an exception to the two year time bar. We affirm.

However, Perez asserts on appeal that his untimely motion should be considered timely because he requested his trial counsel to file a timely post-conviction motion, but counsel failed to do so. In Steele v. Kehoe, 747 So.2d 931 (Fla.1999), the Florida Supreme Court held that when a prisoner claims his attorney agreed to file a post-conviction motion but failed to do so in a timely manner, the matter should be presented to the trial court in a petition for writ of habeas corpus and that due process entitles the prisoner to a hearing to determine the validity of the claim. See also Salser v. State, 792 So.2d 693 (Fla. 5th DCA 2001); Fla. R.Crim. P. 3.850(b)(3). Thus, our affir-mance is without prejudice for Perez to petition the trial court for a writ of habeas corpus, permitting him to file a belated rule 3.850 motion, as provided by Steele.

AFFIRMED.

GRIFFIN and THOMPSON, JJ., concur.

      . See Perez v. State, 770 So.2d 694 (Fla. 5th DCA 2000) (mandate issued October 6, 2000).


text:
    Donald MULLIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-796.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.

      Donald R. Mullís, Corbin, KY, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Mullís appeals from the trial court’s denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, on the ground of newly discovered evidence. In this appeal, Mul-lís claims that the trial court erred in denying him the appointment of counsel to prosecute this cause and to represent him at the evidentiary hearing, which was conducted as a result of his motion. He also argues that the trial court erred in denying him relief. We affirm.

We review the trial court’s rejection of Mullís’ claim that he should have been appointed counsel for this cause on an abuse of discretion standard. Russo v. Akers, 724 So.2d 1151 (Fla.1998). Due process requires that counsel be appointed if a post-conviction motion presents a meritori-eras claim and involves complex issues. Russo at 1152-53. The nature of the proceeding, its complexity, the difficulty of handling an evidentiary hearing, the need for substantial research are all factors which may indicate appointment of counsel is necessary to protect a defendant’s rights. Graham v. State, 372 So.2d 1363 (Fla.1979).

A review of the transcript in this case reveals that Mullís was able to obtain the appearance of his witness, Josephine Navarro, to present evidence on his behalf. She simply recited her version of the circumstances, exculpatory to Mullís, of how the victim of Mullís’ aggravated battery fell down the stairs and suffered a serious injury. We agree with the trial judge’s conclusion that this claim and evidence was fairly simple and did not require the appointment of counsel.

We also agree with the trial court’s lengthy and well reasoned order in denying post-conviction relief. Although Mullís established that the existence of this witness and her version of the events was not known to him or his attorney at the time of trial, nor could they have learned of either by using due diligence, he failed to establish that the presentation of Navarro’s testimony would probably have produced an acquittal on retrial. Melendez v. State, 718 So.2d 746 (Fla.1998). The trial court concluded, based on the evidentiary hearing and his review of the transcript of the trial, that Navarro’s testimony was not credible and her explanations of her actions in not assisting the victim, if she had actually been present, and not coming forward with her testimony at the time of the trial, did not comport with her character and background as a Certified Nursing Assistant for 25 years. In sum, the trial judge found her testimony incredible, a determination this court cannot second-guess. Blanco v. State, 702 So.2d 1250, 1251 (Fla.1997).

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.

      . Mullis also brought an earlier appeal involving the denial of his post-conviction motion filed pursuant to rule 3.850. See Mullis v. State, 769 So.2d 475 (Fla. 5th DCA 2000). That opinion recites that Mullis had been convicted of aggravated battery after a jury found him guilty of pushing the victim down the stairs.


author: GRIFFIN, J.

text:
    Mamodou NDOW, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-421.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.

      James B. Gibson, Public Defender, and Barbara C. Davis and Nancy Ryan, Assistant Public Defenders, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Mamodou Ndow appeals his judgment and sentence for trafficking in cannabis. On appeal, appellant argues that the trial court erred in failing to grant his motion to suppress because the stop was illegal.

This case involves a traffic stop by an Oakland police officer of a vehicle containing appellant and another man which resulted in their arrest. The State charged appellant with one count of trafficking in 300 plants or twenty-five pounds of cannabis in violation of section 893.135(l)(a)l, Florida Statutes (2001). Appellant filed “consolidated motions to suppress.” He maintained, inter alia, that: (1) the arresting officer had no reasonable or articulable suspicion of any criminal activity; (2) the arresting officer initiated the stop outside the jurisdiction of the Oakland Police Department; and (3) there was no ongoing investigation or basis for detention of appellant, i.e., no criminal offense or traffic infraction had been observed.

The trial court held a hearing on the motion to suppress. Officer Chris Rapp [“Rapp”] of the Oakland Police Department testified that on December 11, 2001, at approximately 2:00 a.m. he observed appellant and a companion in a stopped vehicle on the off ramp of the Florida Turnpike. Rapp noted that, although the car had a green light, it did not move but sat through the light’s entire cycle. The officer tried to observe whether the car or driver might be impaired. Rapp proceeded eastbound and then turned around. On the second green light, Rapp observed the car turn left and proceed eastbound on Colonial Drive. The car proceeded slowly in the left lane and then pulled into the right lane behind Rapp. The occupants then slowed down in an apparent effort not to pass the police vehicle, so Rapp turned into a motel in an attempt to let the vehicle pass. As he exited the motel, Rapp observed that the vehicle had pulled over to the side of the road and the occupants were trading places. At this point, because of multiple indications that appellant and his companion might be impaired, Rapp initiated a traffic stop. As Rapp and Sergeant Lowery approached the vehicle, Rapp smelled the odor of unburnt cannabis through the open driver’s side window. The trial court denied the motion to suppress.

On appeal, appellant asserts that the stop was illegal because Rapp did not have a reasonable suspicion of criminal activity and there was no evidence of traffic violations. He maintains that the evidence indicates that Rapp did not observe any objective driving patterns, such as continuous weaving, tires striking a raised curb, etc., that would lead to a reasonable suspicion of driving while impaired. Moreover, appellant maintains that there was no evidence that he committed a traffic violation.

We agree that the motion to suppress was properly denied. If a police officer observes a motor vehicle operating in an unusual manner, there may be justification for a stop even when there is no violation of vehicular regulations and no citation is issued. Bailey v. State, 319 So.2d 22, 26 (Fla.1975); State, Dep’t of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992). “The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” DeShong, 603 So.2d at 1352; Finizio v. State, 800 So.2d 347, 349 (Fla. 4th DCA 2001). In determining whether such an investigatory stop was justified, courts must look to the totality of the circumstances. Tamer v. State, 484 So.2d 583, 584 (Fla.1986). Considering the totality of the circumstances detailed above, Rapp’s suspicion that Ndow may be driving while impaired was reasonable and warranted the investigatory stop. See Finizio, 800 So.2d 347; DeShong, 603 So.2d 1349; Bailey, 319 So.2d 22.

AFFIRMED.

PLEUS and ORFINGER, JJ., concur.


text:
    Rodolfo RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-305.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.

      James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Ramos appeals from his judgment and sentences for having committed burglary of a dwelling with an assault or battery, sexual battery, third degree grand theft, and misdemeanor battery.

Ramos raises numerous points on appeal, including the inadequacy of a Nelson hearing, held by the trial court when he questioned the “competency” of his trial counsel, improper admission of testimony which he claims violated his right to remain silent, the state’s violation of the corpus delicti rule by admitting his admission prior to proof of the crimes, the trial court’s error in denying his request to remove his shackles on the third and last day of trial, violation of the double jeopardy rule by allowing dual convictions for burglary with a battery, sexual battery and simple battery, and his erroneous conviction of grand theft because the state failed to prove the items stolen were worth $300.00 or more. We affirm on all points except his conviction for grand theft.

Ramos was charged and convicted of third degree grand theft, which requires that the state establish the property stolen is valued at $300.00 or more but less than $5,000.00. § 812.014(2)(c)l, Fla. Stat. (2000). Proof of the element of value is essential to sustain a conviction for grand theft and must be established by the state beyond a reasonable doubt. Negron v. State, 306 So.2d 104 (Fla.1974), receded from on other grounds by Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980) and F.B. v. State, 852 So.2d 226 (Fla.2003); Doane v. State, 847 So.2d 1015 (Fla. 5th DCA 2003).

“Value” is statutorily defined as follows:
“Value’ means value determined according to any of the following:
Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.

§ 812.012(9)(a)l., Fla. Stat. (2000). Section 812.012(9)(b) provides that:

If the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100.

The property Ramos was convicted of stealing as a result of the burglary was money (perhaps $50.00 in the victim’s wallet), a keyboard, a VCR, and a 27" televi-son set. However, the victim did not testify as to the properties’ current market values, or when she bought the items. She only testified she paid more or less $200.00 for the keyboard, and about $180.00 for the VCR and $250.00 for the TV, but she did not testify as to when the items were purchased or their condition at the time of the burglary.

The original market cost is a factor in establishing value at the time of the taking, but the item’s use, general condition, quality when purchased, percentage of appreciation or depreciation since purchase should also be established. Doane; Gilbert v. State, 817 So.2d 980 (Fla. 4th DCA 2002). Value can also be established with evidence of the replacement cost of a stolen item, although some evidence must be adduced that the replacement item was similar in value to the item stolen at the time of the taking. Doane. But the purchase price of the stolen items, in this case, standing alone, is insufficient to establish their value exceeds $300.00. Soderman v. State, 844 So.2d 823 (Fla. 5th DCA 2003).

Accordingly, we reverse Ramos’ conviction and sentence for grand theft and remand for entry of a judgment and séntence for petit theft. Since Ramos received a sentence of time served on this count and the sentencing points he received for this offense would not have affected his 30 year prison sentence followed by 25 years sex offender probation, as an habitual felony offender for the more serious crimes, the trial court need not resentence Ramos on remand. In all other regards, this case is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . § 810.02(2)(a), Fla. Stat. (2000).

      . § 794.011(5), Fla. Stat. (2000).

      . § 812.014(2)(c)(l), Fla. Stat. (2000).

      . § 784.03, Fla. Stat. (2000).

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Sylvester v. State, 766 So.2d 1223 (Fla. 5th DCA 2000).


text:
    Chester HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2847.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.

      James B. Gibson, Public Defender and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Chester Harris appeals his judgments and sentences which were entered by the trial court after a jury found Harris guilty of committing the crimes of battery, resisting an officer with violence, and criminal mischief. Harris challenges his judgments and sentences arguing, among other things, that the trial court erred in failing to conduct a competency hearing or issue an order finding him competent to stand trial. We agree and therefore reverse.

Rule 3.210(b) of the Florida Rules of Criminal Procedure sets forth the procedure which the trial court must follow when the issue of a defendant’s competency is raised:

Rule 3.210 Incompetence to Proceed: Procedure for Raising the Issue
(b) Motion for Examination. If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and shall order the defendant to be examined by no more than 3, nor fewer than 2, experts prior to the date of the hearing. Attorneys for the state and the defendant may be present at the examination.

Fla. R.Crim. P. Rule 3.210(b)(emphasis added). Once the issue of a defendant’s competency to stand trial is raised, the question for the trial court to consider is whether there is reasonable ground to believe the defendant may be incompetent, not whether he is incompetent. Brockman v. State, 852 So.2d 330 (Fla. 2d DCA 2003). In Hunter v. State, 660 So.2d 244 (Fla.1995), our Supreme Court set forth the following test for determining whether a defendant is competent to stand trial:

The test for whether a defendant is competent to stand trial is whether “he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825 (1960); see also § 916.12(1), Fla. Stat. (1993); Fla.R.Crim.P. 3.211(a)(1). The reports of experts are “merely advisory to the [trial court], which itself retains the responsibility of the decision.” Muhammad v. State, 494 So.2d 969, 973 (Fla.1986) (quoting Brown v. State, 245 So.2d 68, 70 (Fla.1971), vacated in part on other grounds, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972)), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987). And, even when the experts’ reports conflict, it is the function of the trial court to resolve such factual disputes. Fowler v. State, 255 So.2d 513, 514 (Fla.1971). The trial court must consider all evidence relative to competence and its decision will stand absent a showing of abuse of discretion. Carter v. State, 576 So.2d 1291, 1292 (Fla.1989), cert. denied, 502 U.S. 879, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991).

Id. at 247.

Here, the evidence regarding Harris’s competence to stand trial was limited to three psychiatric examinations. Two psychiatric examinations were performed in March of 2002. One of the reports found Harris competent while the other concluded that Harris was incompetent and schizophrenic. A third examination was conducted in July of 2002 and found Harris competent to stand trial. Harris’s case proceeded to trial one month later. During trial, defense counsel repeatedly moved for mistrial based upon his belief that Harris was not competent to stand trial. The trial court denied said motions without conducting a competency hearing or making a finding that Harris was competent to stand trial.

The record demonstrates some confusion during trial regarding the findings of the psychiatric reports. Specifically, the State Attorney erroneously indicated to the trial court that the two psychiatric reports completed in March 2002 had found Harris competent, and the trial court apparently accepted this statement as being true:

TRIAL COURT: All right. I did check in my records and noticed that we did have a report that was filed by Dr. Mings, a third report. And that report is consistent with the others, Harris is capable of proceeding forward. He is competent to proceed.

Thereafter, during the defense case, when Harris began acting out, defense counsel again moved for a mistrial raising Harris’s psychological fitness to proceed. However, the trial court again erred in stating that three psychiatrists had found Harris competent:

DEFENSE COUNSEL: ... Secondly, I’m having difficulty rendering effective representation here. I’m getting all sorts of requests and aggravation from Mr. Harris. More importantly, all this behavior leads me in all fairness and justice to Mr. Harris, that I question his psychological, psychological fitness.
TRIAL COURT: We have three reports that say he’s competent to proceed.
DEFENSE COUNSEL: There was one report that says he was, and there was a tie, and then another one that he was competent. So I would move—
TRIAL COURT: We have three reports in the file anyone can review, the appellate court can review. Motion for mistrial denied.

Shortly thereafter, while Harris was on the stand testifying, defense counsel again made a motion for a mistrial raising the issue of Harris’s competency but said motion was denied:

DEFENSE COUNSEL: Judge, I have another motion to put on the record, judge. As Mr. Harris’s attorney I feel compelled to move for a mistrial. I understand that the behavior, conduct is attributable to the individual; you know, the defendant caused his own mistrial. However, in this particular situation I think I have increasingly doubts about Mr. Harris’s competency. I seriously question his competency. I don’t think his behavior, He’s making up anything. I think that he, as the court and testimony will bear out, this man is focused and harping on some piece of evidence to exonerate him, or what have you. I just don’t feel and in all fairness to him, doing justice to Mr. Harris, He’s competent; he’s clearly demonstrated the opposite.
STATE ATTORNEY: Judge, if you read the evaluation, of all the evaluations, including the ones that, two that found him competent, they talk about the agitated and threatening, and they still found him competent. He was exhibiting the same behavior he exhibited today to the psychiatrist that found him competent. They’re the best ones to evaluate his competency. And they did. And if, if the defendant wants to exhibit that behavior here in court — he’s been warned against that — but I don’t believe competency is an issue. We went, We spent a lot of time and money to evaluate. He is competent.
TRIAL COURT: On the issue of competency, I’ve reviewed these reports during his testimony, as well as during his trial. And the reports stand for themselves. We have a situation where two doctors say he’s perfectly calm and capable of understanding what he did and competent, competent to stand trial. We have one doctor who says he’s, for one reason or another, thought he was not competent. Under our rules, he is competent. That issue is not before us.

Under the circumstances of this case, which include the trial court’s failure to consider or read the expert reports on Harris’s competence until Harris was testifying at trial, the failure of the trial court to engage in a colloquy with Harris to determine his competence, the failure of the trial court to conduct a competency hearing, the failure of the trial court to adjudicate Harris competent, and the trial court’s seeming reliance only on expert reports (two of which were six months old and one which was one month old), we conclude that the trial court erred in ruling on the issue of Harris’s competency. The trial court erroneously determined that the “reports stand for themselves” and it need not make any further determination once it determined that two of three psychiatrists found Harris competent. At the very least, the trial court should have conducted a colloquy with Harris to determine whether reasonable grounds existed to believe that he might not be competent. See Tingle v. State, 536 So.2d 202, 204 n. 1(Fla.1988) (noting that when an issue of competency is raised, the trial court may conduct its own investigation to determine whether reasonable grounds exist to believe that the defendant may be incompetent and whether the safeguards of rule 3.210 are warranted).

In closing, we recognize that since Harris’s competence can not be determined retroactively, his convictions must be reversed and this cause remanded for a new trial contingent upon a determination that he is competent to stand trial. See Tingle v. State, 536 So.2d 202 (Fla.1988)(holding that a hearing to determine whether a defendant was competent at the time he was tried generally cannot be held retroactively).

Judgments and sentences REVERSED; cause REMANDED.

SAWAYA, C.J., and TORPY, J., concur.


author: MONACO, J.

text:
    William H. JOHNSON, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-948.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

William H. Johnson, III, appeals the revocation of his probation and the upward departure sentence imposed by the trial court. Although we find no abuse of discretion in the revocation of Mr. Johnson’s probation, we agree that an upward departure sentence was improperly imposed.

Mr. Johnson was originally placed on probation for crimes committed in 1997, and was subject to the sentencing guidelines in place before the enactment of the Criminal Punishment Code. Section 948.06(1), Florida Statutes (1997) states that if a charge is not admitted by the probationer or offender, and if the violation of probation is not dismissed, the court as soon as possible shall give the probationer or offender an opportunity to be fully heard. The statute continues:

After such hearing, the court may revoke, modify, or continue the probation or community control or place the probationer into community control. If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed or placing the probationer or offender on probation or into community control.

(Emphasis added).

Thus, the trial court could have sentenced Johnson to any sanction which it might have originally imposed prior to placing him on probation. See Crutchley v. State, 705 So.2d 966 (Fla. 5th DCA 1998). It appears from the record that Mr. Johnson scored a maximum of 35.75 months incarceration, unless there was an upward departure.

The trial judge chose to upwardly depart and sentenced Mr. Johnson to five years in prison. The departure, however, was based on conduct of the appellant that was not related to the probation violation, was not charged in the violation documentation, and involved conduct which could have, but which had not yet resulted in a criminal conviction. An upward departure under these circumstances is improper. See State v. Varner, 616 So.2d 988 (Fla.1993).

AFFIRMED in part, REVERSED in part. Remanded for resentencing in conformity with section 948.06(1), Florida Statutes (1997).

SAWAYA, C.J., and GRIFFIN, J., concur.

      . Ch. 97-194, section 1, Laws of Fla., repealed sections 921.001, 921.0011, 921.0012, 921.0013. 921.0014. 921.0015. 921.0016. and 921.005, Florida Statutes (1997), effective October 1, 1998.


text:
    Paul R. BERTHIAUME, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3302.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.

      Paul R. Berthiaume, Daytona Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Paul R. Berthiaume [“Berthiaume”] appeals the summary denial of his motion filed pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. Berthiaume alleges that when he was sentenced to concurrent terms of nine years as an habitual felony offender in Orange County case nos. 1990-CF-2400, 1990-CF-5285, 1990-CF-6134, 1990-CF-7507 and 1990-CF-8973, the trial court orally pronounced that his sentences would also be concurrent with the sentence in Volusia County case no. 90-3704, but the written sentence did not reflect that ruling. Berthiaume alleges that the error is apparent on the face of the record, from the plea agreement and the sentencing colloquy.

The trial court denied relief because there was no case numbered 90-3704 in Orange County involving Berthiaume. The trial court attached to its order copies of the sentences; however, the court did not attach any portion of the sentencing transcript to refute Berthiaume’s allegation and show that the court did not orally pronounce that his sentences were to run concurrent with a case numbered 90-3704.

The State was ordered to file a response. The State confirmed that case no. 90-3704 is a Volusia County case involving Berthiaume. The State argues that Berthiaume’s claim is not cognizable under rule 3.800(a), because his sentences are not illegal, but this court and others have authorized the use of rule 3.800(a) to address discrepancies between the oral pronouncement of a sentence and the written judgment. See Pittman v. State, 859 So.2d 555 (Fla. 5th DCA 2003); Greene v. State, 853 So.2d 1114 (Fla. 1st DCA 2003); Polite v. State, 847 So.2d 1156 (Fla. 5th DCA 2003); Cote v. State, 841 So.2d 488 (Fla. 2d DCA 2003); Thomas v. State, 778 So.2d 429 (Fla. 5th DCA 2001).

We reverse the appealed order and remand for a determination whether the written sentences conform to the oral pronouncement. If they are the same, the court should attach the relevant portions of the record to refute Berthiaume’s claim. If they are different, the court should correct the sentence.

REVERSED and REMANDED.

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


author: KAHN, J.

text:
    CENTENNIAL MORTGAGE, INC., a Missouri corporation, Appellant, v. SG/SC, LTD., a Texas limited partnership, and SG Apartments, Inc., a Texas corporation, Appellees.
    No. 1D03-13.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2004.

      Mark G. Aexander and Darby L. Duncan of Holland & Knight, Jacksonville, for Appellant.
    James A. Bledsoe, Jr., and Tracey Leigh Henderson, of Bledsoe, Schmidt, Moonly & Roberson, P.A., Jacksonville, for Appel-lees.
   KAHN, J.

May a party that prevailed in an earlier appeal, but ultimately lost the case, be required, as part of an order taxing costs at the conclusion of the case, to disgorge amounts taxed in its favor as the prevailing party in the earlier appeal? Here, the trial court concluded that appellee, as the ultimate prevailing party, should recover the costs it previously paid to appellant, after appellant prevailed in the earlier appeal. We reverse, because an order taxing appellate costs is subject to entry immediately upon conclusion of the appeal and is not dependent upon the ultimate outcome of the case, nor upon a prevailing party analysis at the ultimate outcome of the case.

Appellant Centennial Mortgage, Inc. (Centennial) filed a complaint for declaratory judgment against appellee SG/SC, Ltd. (SG/SC). The suit involved interpretation of an agreement to purchase an apartment complex. Almost simultaneously, SG/SC filed an action for specific performance under the agreement against Centennial. The actions were consolidated and, after a non-jury trial, the circuit court ruled that Centennial had breached the contract and, therefore, granted SG/SC’s request for specific performance. Centennial sought review in this court. We found that the trial court had erroneously excluded certain proffered evidence and accordingly reversed and remanded the case. See Centennial Mortgage, Inc. v. SG/SC, Ltd., 772 So.2d 564 (Fla. 1st DCA 2000).

As the prevailing party in the first appeal, Centennial recovered its appellate costs in the amount of $87,957.35. In a second trial, SG/SC once again obtained an order of specific performance. This court then affirmed the ruling. See Centennial Mortgage, Inc. v. SG/SC, Ltd., 819 So.2d 754 (Fla. 1st DCA 2002)(Table).

After prevailing in the second trial and the second appeal, SG/SC sought an award of its costs at the trial and appellate level, including the $87,957.35 previously paid to Centennial after the first appeal. In the order we now review, the circuit court awarded SG/SC the first appeal costs. Centennial appeals from the costs judgment, arguing that the trial court had no legal authority to award costs previously taxed in favor of Centennial after the first appeal.

Recovery of appellate costs is controlled by Rule 9.400(a), Florida Rules of Appellate Procedure. The rule is actually quite straightforward: “Costs shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.” The rule further provides that taxable costs shall include “(1) fees for filing and service of process; (2) charges for preparation of the record; (3) bond premiums; and (4) other costs permitted by law.” The trial court here was apparently persuaded that costs paid after an earlier appeal would fall under the category of other costs permitted by law.

The case law construing Rule 9.400 persuades us that an award of costs after a successful appeal may not be conditioned upon the ultimate outcome of the case. The prevailing party in an appeal is “entitled to then recover his cost judgment and enjoy an immediate writ of execution.” Di Teodoro v. Lazy Dolphin Dev. Co., 432 So.2d 625, 626 (Fla. 3d DCA 1983). The trial court may not require the party prevailing on the earlier appeal to await the ultimate disposition of the case. Id.; see also, Lucas v. Barnett Bank of Lee County, 732 So.2d 405 (Fla. 2d DCA 1999) (holding that prevailing appellants were entitled to an immediate award of appellate costs and reduction of award to judgment capable of execution even though the action had not yet been finally resolved in the trial court).

Here, SG/SC has argued that determination of the prevailing party cannot be made until the entire case is concluded. This construction does not, however, apply to Rule 9.400(a). The prevailing party under that rule is “the party who prevailed in the appellate proceeding that was the subject of the motion to tax costs, and not necessarily the party who ultimately prevails] after the completion of all of the litigation.” Stringer v. Katzell, 695 So.2d 369, 370 (Fla. 4th DCA 1997). Similarly, the Second District has recently held that the prevailing party in an earlier appeal is entitled to a cost award “without regard to whether they ultimately prevail in the trial court proceeding.” Dahly v. Dep’t of Children & Family Serv., 845 So.2d 350, 351 (Fla. 2d DCA 2003). Although none of the cases we have reviewed above specifically addresses the question raised in this appeal, we conclude that by unconditionally requiring an immediate award of appellate costs, these cases, in essence, resolve the present uncertainty.

We note that Federal case law construing Rule 39, Federal Rules of Appellate Procedure, supports our construction. That rule, governing recovery of costs on appeal, “dictates that the disposition of the appeal is the deciding factor in the assessment of appellate costs. It has no relevance to the trial costs.” Studiengesellschaft Kohle mbH v. Eastman Kodak Co., 713 F.2d 128, 131 (5th Cir.1983). Similarly, “the assessment of costs for defendant’s expenses on appeal may not be extinguished by the fact that plaintiff has prevailed in subsequent proceedings.” Mason v. Texaco, Inc., 131 F.R.D. 697 (D.Kan.1990).

We do not discount the force of SG/SC’s equitable argument in the present case. Generally speaking, costs represent “a judicial attempt to make the winning party as whole as he was prior to the litigation.” Otis Elevator Co. v. Bryan, 489 So.2d 1189, 1190 (Fla. 1st DCA 1986). Nevertheless, Rule 9.400 contains no provision for equitable setoff or adjustment after a case is concluded, and the case law construing the rule uniformly defines “prevailing party” as the party who prevailed on the appeal, not in the underlying case.

REVERSED and REMANDED for proceedings consistent with this opinion.

WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Searcy PAIGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3528.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2004.
    Searcy Paige, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Brown v. State, 813 So.2d 132 (Fla. 5th DCA 2002).

SHARP, W., THOMPSON and PALMER, JJ., concur.


text:
    Richard L. HAMLIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3009.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2004.
    Richard L. Hamlin, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Glenn v. State, 861 So.2d 1289 (Fla. 5th DCA 2004).

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


text:
    Claiborne R. BLEVINS, Appellant, v. MUSTIQUE HOLDINGS, INC., et al, Appellee.
    No. 5D03-1726.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2004.
    John H. Bill, of Godbold, Downing, Sheahan & Bill, P.A., Winter Park, for Appellant.
    Barry Kalmanson, of Barry Kalmanson, P.A., Maitland, and Matthew G. Brenner, of Lowndes, Drosdick, Doster, Kantor & Reed, Orlando, for Appellee, Mustique Holdings, Inc.
   PER CURIAM.

See section 95.18, Florida Statutes (2003).

AFFIRMED.

PLEUS, PALMER and TORPY, JJ., concur.


author: CASANUEVA, Judge.

text:
    James KNOWLES, Appellant, v. STATE of Florida, Appellee.
    No. 2D99-4646.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 2004.

      James Marion Moorman, Public Defender, and Richard J. D’Amico, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Ap-pellee.

      . Judge Villanti was substituted for Judge Blue, who was on the Knowles (I) panel but has since retired from the court.

   ON REMAND FROM THE SUPREME COURT OF FLORIDA

CASANUEVA, Judge.

In this matter on remand from the Florida Supreme Court, we are required to address the following issue set forth in Knowles v. State, 848 So.2d 1055, 1059 (Fla.2003) [Knowles (II) ]:

The Second District’s use of the incorrect “substantial influence” test leaves us uncertain whether the application of the DiGuilio [ ] test would have yielded a different result in the district court. Therefore, we quash the decision below and remand to the district court for reconsideration of whether the error is harmless in light of our reaffirmation in the case of the DiGuilio standard. Cf. Goodwin, 751 So.2d at 547[ ] (remanding one of two consolidated cases to the district court to reconsider its harmless error determination).

In accordance with our mandate, we have reconsidered this case and have concluded that the State has met its burden of demonstrating beyond a reasonable doubt that there is no reasonable possibility that the error affected the verdict. Accordingly, we affirm Mr. Knowles’s conviction for first-degree murder.

FACTS

For purposes of clarity, we reiterate the facts in this opinion. On the morning of September 19, 1994, James Knowles, carrying thirteen roses and a gun, went to the workplace of his former wife, Tina Knowles. After a brief discussion, which Mr. Knowles characterized as an attempt to revive their relationship, he shot and killed his ex-wife. Ms. Knowles’s coworkers heard a noise that sounded like an explosion; one person heard her exclaim, “No, Jimmy, no.” After hearing the shot, three of Ms. Knowles’s coworkers burst into the victim’s office where a struggle for the firearm ensued. Prior to the struggle, Mr. Knowles attempted to take his own life with the firearm, but the gun jammed. At one point during the struggle, he asked to be let go so that he could kill himself. Ultimately, however, the coworkers took control of the gun and subdued Mr. Knowles, who was taken into custody and later indicted for first-degree murder.

The State offered Mr. Knowles a plea to the lesser charge of second-degree murder and two counts of aggravated battery with a firearm. The court accepted his plea and conducted an extensive sentencing hearing. At that proceeding, the defense called Dr. Joel B. Freid, a clinical psychologist, to testify regarding Mr. Knowles’s state of mind prior to the homicide. Dr. Freid opined that Mr. Knowles, although not legally insane, was very depressed, suicidal, despondent, and frustrated. Furthermore, Mr. Knowles exhibited a dependent personality and relied upon others for emotional support and direction.

During cross-examination of Dr. Freid at the sentencing proceeding, the State inquired into several limited areas: when a triggering conversation between the victim and the defendant had occurred; whether Dr. Freid had been provided with police reports containing the defendant’s statements; and to what extent the defendant’s statements might indicate his homicidal tendency. The State also cross-examined Dr. Freid concerning the defendant’s assertion that he did not think about the homicide until the day before the incident. At the conclusion of the hearing, the court sentenced Mr. Knowles to thirty years in prison.

Mr. Knowles’s initial conviction was vacated after a postconviction relief hearing on the grounds of ineffective assistance of counsel. Mr. Knowles’s prior counsel failed to advise him of the amount of gain time that he would receive during his incarceration. Finding that counsel was ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court vacated the conviction and sentence and reinstated Mr. Knowles’s plea of not guilty.

At his trial for first-degree murder, the evidence demonstrated that Mr. Knowles and the victim were married for the first time in 1981. They were divorced approximately two years later but continued to live together. During their marriage they had two sons. They remarried in 1991, were divorced again in 1994, and continued to five together until July 6,1994.

The murder occurred on September 19, 1994, when the events described above oe-curred. Mr. Knowles testified at trial that his wife had been unfaithful to him during their marriages, but he still loved her. He wanted to forgive her and reunite. Prior to going to his ex-wife’s office on September 19, 1994, Mr. Knowles had purchased thirteen roses, one for each year of their relationship, and brought them with him to her office. He asked his wife to take him back, but she refused. She told him about her relationships with other men, some of whom were Mr. Knowles’s friends, and she stated that he would never be able to forgive her for her actions. According to Mr. Knowles’s trial testimony, Tina Knowles stated that “it wasn’t just the one person, there’s been others, and some of them are friends of yours, and when you find this out, we’re going to go through all this again.” Then, according to Mr. Knowles, “somewhere about that point I told her I loved her very much and I shot and killed her.”

For two or three days prior to the shooting, Mr. Knowles had made arrangements for the handling of various affairs. He was not sure when this planning stage began — simply that he knew that he needed to “do something else.” On cross-examination, Mr. Knowles agreed that if Tina had come back to him, he would not have killed her. He had unilaterally planned a reconciliation but admitted that “if that didn’t happen, I knew I was going to die ... and possibly Tina also.” He admitted knowing that he had the gun with him (hidden by the bouquet of roses) when he went to see Tina and that it was his plan for Tina to die first.

His niece, Katherine Shockley, testified that shortly before the murder Mr. Knowles had given her a document designating her custodian of the boys in the event of the death of both of their parents. She stated that Mr. Knowles did not indicate that he intended to kill his wife, but he asked that she distribute certain guns to his boys. He left an undated, handwritten will, a note about payment for completion of work, a note about checks that were owed to him from his employer, and a temporary tag and lease agreement for a pickup truck. These items were recovered at his home pursuant to a search warrant.

Also recovered pursuant to the warrant were two audiotapes that were played to the jury in their entirety. In the tapes Mr. Knowles left certain instructions concerning the handling of his affairs after his death. In the first tape, he alluded to the fact that his boys would lose “two of us”— that he was “not going alone.” He declared: “This is just something that I have decided that I have to do to be at peace with myself. I cannot be hurt anymore and will not be hurt anymore.” The second tape contained the following statement: “I cannot handle this and have not handled it well at all. I just love Tina so much until I can’t go on without her.”

Finally, Dr. Freid testified, over defense objections, as the State’s expert during the guilt phase of the trial. Dr. Freid testified as to Mr. Knowles’s state of mind prior to the murder: he was depressed, quite upset, and especially disturbed about learning certain things about his wife’s behavior. Therefore, Mr. Knowles developed an elaborate suicide plan. A couple of days later, however, Mr. Knowles changed his plans to include taking his wife’s life as well as his own, and he made two audiotapes in which he recorded his intentions. On cross-examination, Dr. Freid reiterated that, in his opinion, Mr. Knowles was emotionally disturbed, very depressed, and struggling with the thought of losing his wife forever by divorce.

ANALYSIS

In our previous opinion we discussed whether the defendant waived his privilege against self-incrimination or attorney-client privilege when he called Dr. Freid as a witness in the first sentencing proceeding. We concluded that Mr. Knowles did not waive those privileges for the purposes of a second trial because the first proceeding was rendered a nullity— along with everything that occurred at that proceeding — when the court granted Mr. Knowles’s postconviction relief motion and vacated ' his plea and sentence. See Knowles (I), 800 So.2d at 262-63. The majority opinion concluded that the error in admitting Dr. Freid’s testimony, however, was not per se reversible, a conclusion that was affirmed by the Florida Supreme Court in Knowles (II), 848 So.2d at 1059 (“In remanding, we also reject Knowles’s assertion that the erroneous admission of an expert witness’s testimony bearing on intent is per se harmful error.”). In accordance with the mandate, our analysis will focus only upon whether the error in admission of Dr. Freid’s testimony was harmless under the standard set out in DiGuilio, 491 So.2d at 1137.

At the outset, we recognize that “the admission of testimony in violation of a defendant’s attorney-client privilege and privilege against self-incrimination creates a high probability of harm.” Knowles (II), 848 So.2d at 1059. Nevertheless, in this unique circumstance, we are convinced beyond a reasonable doubt that the error did not affect the first-degree murder verdict. In reaching that conclusion we have applied the harmless error test as set out in DiGuilio, 491 So.2d at 1135, which “requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.”

We have already recited the permissible evidence that led to Mr. Knowles’s conviction. Substantial, independent evidence of Mr. Knowles’s premeditation emanated from the permissible evidence adduced, most notably from Mr. Knowles’s own letters, audiotapes, and statements. Mr. Knowles’s own testimony, as well as his written statement and audiotapes, revealed that, although he purportedly hoped for a reconciliation with his ex-wife, he simultaneously planned and expected to commit a murder/suicide. His focused and deliberate actions were inconsistent with a killing on the spur of the moment. See Spencer v. State, 645 So.2d 377 (Fla.1994). “Premeditation may be established by circumstantial evidence, including the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Holton v. State, 573 So.2d 284, 289 (Fla.1990) (cited in Spencer, 645 So.2d at 381).

Both the audiotapes and his actions on the day of the murder confirmed Mr. Knowles’s careful consideration of the murder/suicide plan. He made a will, arranged for custody of his soon-to-be orphaned sons, and made plans to dispose of some of his property. On the morning of the murder, Mr. Knowles calmly had coffee in a restaurant he frequented, purchased roses for his ex-wife and refused the suggestion that the florist deliver them, and walked into Tina Knowles’s workplace with the gun concealed by the roses. He shot her once in the chest.

Admittedly, Dr. Freid testified about the moment at which Mr. Knowles might have formed an intent to murder his wife. But Dr. Freid also testified that Mr. Knowles was depressed, despondent, and upset, and that he hoped for reconciliation with his wife. Thus, the basic thrust of Dr. Freid’s testimony was ameliorative. This is demonstrated not only by the fact that he was originally called as a defense witness at the first sentencing hearing in order to persuade the judge that Mr. Knowles’s intent was less than full-blown premeditation, but also by the fact that the very last reference in the defense closing argument was to Dr. Freid’s testimony:

Now, he [the prosecutor] would have you believe that there was an elaborate plan. Well, the fact is, the evidence shows, that there were a number of plans, including the plan to wrap the pickup truck around the tree. Remember when Dr. Freid talked about how it was normal in situations like this to grasp at straws? That’s what Dr. Freid said, that when you’re in love, really in love, you seize every opportunity to believe that ultimately you’re going to be successful. That’s what the expert said. I suggest we believe him, and believe that he believed, right until the last minute, that he would succeed. Thank you.

As we stated in our opinion in Knowles (I), Dr. Freid testified that Mr. Knowles was legally sane at the time of the offense and knew that his conduct was wrong. However, Mr. Knowles’s defense was not insanity but that he possessed a level of intent lower than premeditation. The defense, implicitly if not explicitly, conceded the wrongful nature of his conduct by seeking a conviction for a lesser crime. And, because the law presumes Mr. Knowles to be sane, Dr. Freid’s testimony on this point only confirmed a legal presumption that was not before the jury to resolve. Knowles (I), 800 So.2d at 264.

We went on to observe in Knowles (I) that the record contained no indication that Mr. Knowles’s decision to testify was induced by the admission of Dr. Freid’s testimony. Furthermore, an examination of Mr. Knowles’s testimony reveals nothing suggesting that he was depressed or emotionally disturbed. The crucial evidence — for Mr. Knowles — concerning his mental state (that he was “emotionally disturbed,” “depressed,” and in fact “very depressed”) was elicited from Dr. Freid. Mr. Knowles thus benefitted from the advantageous aspects of Dr. Freid’s testimony without sacrificing his right to give the first and last closing arguments. Knowles (I), 800 So.2d at 265.

DiGuilio suggests that an appellate court must look at the quality of both permissible and impermissible evidence, not simply the comparative weight of each. In the DiGuilio case, 491 So.2d at 1138, the court noted that the “permissible evidence was not clearly conclusive” and that the impermissible evidence, “at least indirectly ... highlighted for the jury the fact that DiGuilio was not testifying at trial and still had offered no plausible explanation” (for his presence in the middle of a drug deal). Here, the permissible testimony was conclusive. The defendant admitted that he took a loaded gun and shot his ex-wife. Although this originally might have been part of a murder/suicide plan, Mr. Knowles admitted that he intended to shoot Tina first and that if she had agreed to reconcile, he would not have killed her. Mr. Knowles left behind both audiotapes and written statements concerning his criminal intentions. In the face of this evidence, we are convinced beyond a reasonable doubt that Dr. Freid’s testimony— highlighting as it did the defendant’s theory of his case — did not affect the jury’s decision to convict Mr. Knowles of first-degree murder.

Affirmed.

VILLANTI, J., and GREEN, OLIVER L., Senior Judge, Concur.

      . State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

      . Goodwin v. State, 751 So.2d 537 (Fla.1999).

      . This discussion of the facts essentially tracks this court’s original opinion in Knowles v. State, 800 So.2d 259, 261-63 (Fla. 2d DCA 2001) [Knowles (I)], but we have expanded upon the recitation to some degree in order to fulfill the mandate.


text:
    Fernando MELO, Appellant, v. Mabel Toledo MELO, Appellee.
    No. 3D02-1787.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Stephen Cahen, Miami; Greene, Smith & Associates, Cynthia L. Greene, Miami, for appellant.

      William A. Daniel, Jr., for appellee.
    Before COPE, GODERICH, and SHEPHERD, JJ.
   PER CURIAM.

Fernando Melo appeals from a Final Judgment of Dissolution of Marriage. We reverse.

First, as is apparent from the face of the final judgment, the trial court erred by attributing “the sum of $150,000 net [income] per year” to appellant for the purpose of calculating child support when that figure is actually appellant’s gross income. See Thilem v. Thilem, 662 So.2d 1314, 1316 (Fla. 3d DCA 1995) (holding that “the trial court erred in failing to distinguish gross from net income, which is crucial to properly applying the guidelines.”); Weiser v. Weiser, 782 So.2d 986, 987, (Fla. 4th DCA 2001) (child support for two children required to be recalculated based upon each parent’s net income).

Secondly, the trial court erred by awarding permanent periodic alimony without making sufficient factual findings concerning the statutory factors under section 61.08(2), Florida Statutes (2001). Segall v. Segall, 708 So.2d 983, 987-88 (Fla. 4th DCA 1998). Although the court tracked the language of section 61.08(2), it neglected to make any findings of fact pertaining to those factors. Benters v. Benters, 655 So.2d 1243, 1244 (Fla. 5th DCA 1995). Even if permanent alimony is justified in this case, we cannot review the appropriateness of the amount absent sufficient factual findings. Id.

It should also be noted that the appellee properly conceded in its brief that in determining the award of child support, the trial court erred by failing to first deduct the award from appellant’s income and then failing to add it to the income of appellee. See § 61.30(2)(a)(9), (3)(g), Fla. Stat. (2001). Appellant’s payment of medical insurance on behalf of the children should similarly have been deducted. McDaniel v. McDaniel, 653 So.2d 1076, 1077 (Fla. 5th DCA 1995).

Finally, the court erred by requiring the appellant to maintain life insurance without first making findings as to the existence of special circumstances. Solomon v. Solomon, 861 So.2d 1218 (Fla. 2d DCA 2003); McDaniel, 653 So.2d at 1078.

The Final Judgment of Dissolution of Marriage is reversed and remanded for proceedings consistent with this opinion.


text:
    Jimel COFER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3181.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Jimel Cofer, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See State v. Robbins, 780 So.2d 89 (Fla. 2nd DCA 2000).


text:
    HARTFORD INSURANCE COMPANY, etc., Petitioner, v. MAINSTREAM CONSTRUCTION GROUP, INC., Respondent.
    No. 5D03-2678.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2004.

      Anthony J. Russo, Lisa A. Oonk and Andrew L. Patten of Butler Pappas Weih-muller Katz Craig, LLP, Tampa, for Petitioner.
    Joel W. Walters of Walters Levine Brown Klingensmith & Thomison, P.A., Sarasota, for Respondent.
   MONACO, J.

This petition for certiorari considers the issue of when claims for bad faith and unfair claim settlement practices may be raised by an insured who seeks to sue his own insurance carrier. We conclude that these claims may only be brought after coverage and contractual issues between the insured and the insurer are resolved, and therefore grant the petition.

The respondent, Mainstream Construction Group, Inc. (“Mainstream”), entered into a contract to renovate and perform alterations to a building. Mainstream applied for and received a policy of builder’s risk insurance issued by the petitioner, Hartford Insurance Company (“Hartford”). Several months after issuance of the policy a fire occurred at the construction site causing extensive damage to the existing building and the renovations. Upon receiving the claim, Hartford took the position that the policy only covered damages to the interior improvements of the project, and did not cover damages to the exterior of the existing building.

Mainstream, believing that the policy covered both the interior and the exterior, filed suit seeking declaratory relief, damages for breach of contract, and several other remedies. In the fourth count of the complaint Mainstream sought damages for alleged bad faith dealings by Hartford in violation of section 624.155(l)(b)(l), Florida Statutes (2002), and unfair claim settlement practices in violation of section 626.9541(1)®, Florida Statutes (2002). In response to Hartford’s motion to dismiss, the trial court struck those parts of count IV concerning bad faith dealings, but denied the motion with respect to the claim for unfair claim settlement practices.

Hartford petitions this court for certiorari relief. Although certiorari is ordinarily not available to review an order denying a motion to dismiss, it is available when, as here, irreparable injury may occur by premature discovery of an insurer’s internal business records and claim files. See General Star Indem. Co. v. AnheuserBusch Companies, Inc., 741 So.2d 1259 (Fla. 5th DCA 1999). If the challenged order is a departure from the essential requirements of law that causes material injury, and if the order leaves the petitioner with no other adequate remedy to review the alleged erroneous order, then certiorari will lie. See Beverly Enterprises-Florida, Inc. v. Ives, 832 So.2d 161 (Fla. 5th DCA 2002), review denied, 845 So.2d 890 (Fla.2003). Using this standard, we conclude that certiorari is appropriate.

We begin by an examination of the statutes that provide the foundation for count IV. Section 624.155(l)(b)(l), the statutory provision authorizing a claim for first party insurer unfair claim settlement practices, reads in pertinent part:

(1) Any person may bring a civil action against an insurer when such person is damaged:
(b) By the commission of any of the following acts by the insurer:
1. Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests.

As interpreted by the Florida Supreme Court, “an insured’s underlying first-party action for insurance benefits against the insurer necessarily must be resolved favorably to the insured before the cause of action for bad faith in settlement negotiations can accrue.” See Blanchard v. State Farm Mut. Ins. Co., 575 So.2d 1289, 1291 (Fla.1991). Thus, there must first be a determination regarding coverage and contractual issues between Mainstream and Hartford before an action for bad faith can proceed. See Old Republic Nat’l. Title Ins. Co. v. HomeAmerican Credit, Inc., 844 So.2d 818 (Fla. 5th DCA 2003); American Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347 (Fla. 5th DCA 1998). Accordingly, the trial court’s order striking the paragraphs related to this cause of action was correct.

Section 624.155(l)(a) also creates a cause of action for an insured under section 626.9541(l)(i) for certain unfair methods of competition and unfair or deceptive acts or practices. Count IV of Mainstream’s complaint seeks relief under this statute, as well. Among many other things, Mainstream asserts that Hartford attempted to settle claims on the basis of a material document that was altered without the knowledge or consent of the insured; that Hartford made material misrepresentations with the intent of effecting a settlement of claims under less favorable terms than those contemplated by the policy; and that Hartford misrepresented pertinent facts or policy provisions related to coverage. The issue before us, then, is whether Mainstream should be permitted to litigate these claims before coverage is determined, or whether the claims for violation of section 626.9541(l)(i) are also premature. We hold that the claims are prematurely brought.

We observe in this connection that the rationale undergirding the rule requiring a determination of coverage and contractual issues before a claim for bad faith may be prosecuted is essentially the same as for a claim for unfair settlement practices. See Lane v. Provident Life & Accident Ins. Co., 71 F.Supp.2d 1255 (S.D.Fla.1999); General Star Indemnity. If there is no insurance coverage, nor any loss or injury for which the insurer is contractually obligated to indemnify, the insurer cannot have acted in bad faith in refusing to settle the claim. Similarly, if there is no coverage, then the insured would suffer no damages resulting from its insurer’s unfair settlement practices. In addition, the carrier would clearly be prejudiced by having to litigate either a bad faith claim or an unfair settlement practices claim in tandem with a coverage claim because the evidence used to prove either bad faith or unfair practices could well jaundice the jury’s view of the coverage issue. Id. Finally, as an insured is not entitled to discover an insurer’s claim file or documents relating to the insurer’s business policies or claims practices until coverage has been determined, it is inappropriate to run the bad faith and unfair settlement practices claims conjoined with coverage issues. See Old Republic Nat'l Title.

We conclude, therefore, that the trial court departed from the essential requirements of law in its order dealing with count IV. Accordingly, we grant the petition for certiorari and quash the order under review as it concerns count IV. The trial court should either dismiss count IV without prejudice or abate count IV pending resolution of the coverage issues.

Petition for Writ of Certiorari GRANTED; Order QUASHED.

PALMER and ORFINGER, JJ„ concur.

      . Dismissal without prejudice or abatement appear to be the preferred procedural remedies. See, e.g., Allstate Ins. Co. v. Baughman, 741 So.2d 624 (Fla. 2d DCA 1999); General Star Indemnity.