author: WARNER, J.

text:
    Don T. KOZICH, Appellant, v. Albert DeBRINO, Individually, Debrino Caulking and Waterproofing, Inc. and International Fidelity Insurance Company, Appellees.
    Nos. 4D97-4494, 4D99-838.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2002.
    Rehearing Denied March 11, 2003.

      Don T. Kozich, Fort Lauderdale, pro se.
    Neil L. Henrichsen and William J. Moore, III of Henrichsen Siegel Moore, P.L.L.C., Jacksonville, for appellee International Fidelity Insurance Company.
    Christopher E. Ells, Fort Lauderdale, for appellees Albert DeBrino and DeBrino Caulking and Waterproofing, Inc.
   WARNER, J.

Appellant challenges several of the trial court’s orders, including an order denying his motion for relief from a temporary injunction obtained by appellee DeBrino Caulking and Waterproofing, Inc. (“DeBri-no Caulking”) and an order dismissing with prejudice his claims against appellees, Albert DeBrino (“DeBrino”) and International Fidelity Insurance Company (“IFIC”). We dismiss as to certain orders that are not appealable and affirm the dismissal as to DeBrino, individually, but reverse the order of dismissal as to IFIC.

DeBrino Caulking filed a complaint against appellant Don Kozich relating to Kozich’s employment with that firm. The complaint sought a writ of replevin for various materials which DeBrino Caulking alleged that Kozich took from it and asserted claims for conversion of the same materials, breach of contract, and tortious interference with an advantageous business relationship. DeBrino Caulking obtained a temporary injunction against Kozich to prevent him from filing false notices of lien against DeBrino Caulking’s customers. In its temporary injunction order, the trial court determined that Kozich was employed with DeBrino Caulking and not entitled to file liens against its projects. This court upheld the injunction against Kozich’s challenge on appeal.

Kozich responded to the injunction with a multi-count counterclaim against DeBri-no Caulking, its owner Albert DeBrino, and IFIC, DeBrino Caulking’s surety. These counts alleged wrongful termination of the contract and failure to pay monies due; conversion of documents belonging to Kozich; various claims for compensation on projects performed by DeBrino Caulking and insured by IFIC; fraud and misrepresentation by DeBrino and DeBrino Caulking; and an action to recover unpaid wages. The counter-defendants moved to dismiss all counts. As to DeBrino Caulking and IFIC, they alleged that the temporary injunction was the “law of the case” and that Kozich could not recover on these claims because, as a mere employee, he was not a lienor under state law. As to the claims against DeBrino individually, they alleged that he was not a signatory under the contract nor were there any allegations to support his individual liability.

Ultimately, the trial court entered an order dismissing the counterclaim. As to DeBrino Caulking, two of the claims were dismissed without prejudice. The court dismissed with prejudice all of the counts alleging claims against both DeBrino Caulking and IFIC, as well as the claims against DeBrino individually. After this order, Kozich moved to amend the counts against DeBrino and DeBrino Caulking, which the court denied. It also denied his motion for relief from DeBrino Caulking’s temporary injunction and relief from the denial of a motion for disqualification.

Preliminarily, we note that the order dismissing the claims against DeBrino Caulking is not appealable as there remain pending claims between the parties. We therefore dismiss the appeal of the order as to DeBrino Caulking. We also affirm without comment the order denying disqualification of the trial judge.

Kozich claims that the trial court erred in dismissing his counterclaim against IFIC on the ground of “law of the case.” We agree. A trial court’s findings on a preliminary injunction do not constitute “law of the case” on final hearing. See Lone v. C.L.N., 757 So.2d 610, 611 (Fla. 3d DCA 2000). The findings of fact and conclusions of law made at a preliminary injunction hearing are not binding on the court on final hearing, where the parties present their full case to the court. See Ladner v. Plaza Del Prado Condo. Ass’n, 423 So.2d 927, 929 (Fla. 3d DCA 1982). “[T]he affirmance of a temporary injunction on appeal determines only that a proper showing was made at the time the injunction was applied for.” El Segundo Original Rey de la Pizza Cubana, Inc. v. Rey Pizza Corp., 682 So.2d 697, 697 (Fla. 3d DCA 1996) (citations omitted). Because the court’s dismissal of the counterclaim was based upon findings made at the temporary injunction hearing, reliance on those findings to dismiss Kozich’s claims with prejudice was error.

IFIC argues that because the trial court dismissed the action as to DeBrino Caulking, as DeBrino Caulking’s surety it cannot be liable to Kozieh. However, the dismissal as to DeBrino Caulking is not as yet an appealable order, as we noted above. Therefore, because DeBrino Caulking’s liability has not been finally determined, dismissal of its surety, IFIC, on this ground was error.

Kozieh also argues that the court erred in denying is motion to amend the complaint as to DeBrino, individually. He claims that he should be given the opportunity to file a complaint alleging facts necessary to pierce the corporate veil. However, Kozieh did not make this argument to the trial court. He argued only that the order should be amended to make the dismissal without prejudice and that he should be permitted to amend his complaint. He did not specify what amendment he might make. Under these circumstances, and without a transcript of the hearing where the judge ruled on the motion to dismiss, we cannot conclude that the court abused its discretion. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

We affirm the denial of Kozich’s motion for relief from the temporary injunction pursuant to Florida Rule of Civil Procedure 1.540(b). That rule provides no basis for relief from a non-final order. See Badger v. Badger, 568 So.2d 79, 80 (Fla. 4th DCA 1990). The proper method of obtaining relief from such an order is through a motion to dissolve the injunction. See Fla. R. Civ. P. 1.610(d).

We reverse the order dismissing the counterclaim with prejudice against IFIC and affirm it as to DeBrino, individually. We dismiss the appeal for lack of jurisdiction as to DeBrino Caulking. We affirm the remaining orders challenged in this appeal.

STEVENSON and TAYLOR, JJ., concur.

      . This appeal was stayed for a period of two and one-half years due to appellant's bankruptcy filing.

      . Application of "law of the case” would not have been proper on a motion to dismiss, although this specific point was not argued by Kozich. It would have been an affirmative defense and could have been reached by a summary judgment.

      . We consider Kozich's motion to amend the order as to DeBrino, individually, an authorized motion pursuant to Rule 1.530(g), and thus, appealable with the final order.


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    Jacquiline Nicole REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-468.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant, Jaequiline Nicole Reynolds, was indicted for first degree murder in the death of her adoptive mother. The jury rejected appellant’s insanity defense and found her guilty of a lesser included offense, second degree murder with a weapon. She appeals her conviction, contending that the trial court erred in precluding defense experts from testifying on the ultimate issue of insanity and in repeatedly criticizing defense counsel and disparaging appellant’s insanity defense. For the reasons discussed below, we affirm.

On May 14, 1997, seventeen-year-old Jacquiline Nicole Reynolds called 911 from her home in Coral Springs and told the operator that she had just stabbed her mother to death. When the police arrived at her house, they found her mother, Billie Jean Reynolds, on the floor of the family room. She was dead due to multiple stab wounds. Reynolds was arrested and taken to jail. During her interview with police detectives, Reynolds confessed to stabbing her mother and described the events that led up to her actions. She told the officers that she was upset because she had broken up with her boyfriend. She had planned to kill her boyfriend at school that day, but after finding out that her parents were not taking her back to school until she attended counseling sessions, she decided instead to kill her parents first. Then she could drive herself to school the following day and kill her boyfriend.

That evening, after her father left home for church, she approached her mother from behind as she worked at her computer and tried to slash her throat with a large butcher knife. She repeatedly stabbed her mother until she fell on the floor. After trying to wash the knife in the sink, she called the police. Near the end of her interview with detectives, appellant told the officers that she had taken four or five handfuls of aspirin that afternoon. Appellant was taken to the hospital.

At trial, appellant’s defense to the charge of premeditated murder was insanity. In support of that defense, she called two expert witnesses who gave opinions that appellant suffered from mental disease and therefore did not know right from wrong at the time of the killing. However, in a pre-trial ruling, the trial court prevented her experts from stating their opinions that appellant was insane. The court similarly precluded the state’s experts from testifying that appellant was sane at the time of the killing. Relying on Gurganus v. State, 451 So.2d 817 (Fla.1984), the trial judge reasoned that expert testimony regarding insanity constitutes a legal conclusion and decided that “an expert’s opinion cannot be in the ultimate statement that the defendant is or is not legally insane at the time.” In setting parameters on the expert opinion testimony, the court further stated:

I think they can render an opinion as to the instruction, what is, in other words, the legal definition of insanity and in their opinion whether the defendant had a mental infirmity, disease or defect and because of that she did not know what she was doing or its consequences or although she knew what she was doing and its consequences she did not know it was wrong. In other words, they can render an opinion on that, but they cannot render an opinion that the defendant was legally insane.

Florida law, however, expressly provides that an expert witness may render an opinion on the ultimate issue in a case. Section 90.703, Florida Statutes (1999) states:

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

Further, Gurganus does not hold that an expert opinion concerning insanity is inadmissible as a legal conclusion.

In Gwrganus, the defendant was charged with first-degree murder in the shooting death of his ex-wife and a customer at a convenience store where she worked. The defense proffered the testimony of two clinical psychologists concerning the combined effect of defendant’s ingestion of twenty-nine Fiorinal capsules and alcohol prior to the shootings. Upholding the trial judge’s refusal to allow this testimony on relevancy grounds, the supreme court re-affirmed that evidence of a defendant’s diminished mental capacity which fell short of rendering him unable to know right from wrong or appreciate the consequences of his act is not admissible because it is irrelevant on the issue of insanity. Gurganus, 451 So.2d at 821. The court further held that an expert’s opinion as to whether a defendant’s mental condition was closer to a depraved mind than to premeditation was not admissible either, because that determination was not a proper subject of expert testimony:

Both of these terms are legal terms with specific legal definitions. Essentially, the defense was attempting to elicit the psychologists’ opinion as to whether Gurganus committed second-degree or first-degree murder. Such a conclusion was a legal conclusion no better suited to expert opinion than to lay opinion and, as such, was an issue to be determined solely within the province of the jury.

Id.

The Gurganus court went on to cite United States v. Milne, 487 F.2d 1232 (5th Cir.1973), which drew a distinction between expert opinion regarding insanity and expert opinion concerning criminal capacity. “Criminal capacity is a legal conclusion and even an expert, medical or legal, may not speak so as to employ a legal definition.” Milne, 487 F.2d at 1235. In so distinguishing testimony about a defendant’s mental capacity from testimony regarding the defendant’s sanity, Milne indicated that the latter is admissible. Id. at 1235-36. It thus appears that the trial court misconstrued Gurganus in preventing the expert witnesses from testifying that appellant was sane or insane at the time of the offense.

Florida courts have previously allowed properly qualified experts to testify as to whether the defendant was or was not sane at the time of the crime. See Garron v. State, 528 So.2d 353, 355 (Fla.1988)(not-ing that all three court-appointed psychiatrists testified “that appellant did not know right from wrong and was, therefore, insane under the legal definition of insanity”); see also Slawson v. State, 796 So.2d 491, 498 n. 5 (Fla.2001)(acknowledging that both court appointed experts agreed that the defendant did not meet Florida’s test for insanity at the time of the crime); cf. Nowitzke v. State, 572 So.2d 1346, 1355 (Fla.1990)(holding testimony to be improper in light of doctor’s lack of knowledge of the legal definition of insanity).

The state asserts that appellant failed to preserve this issue for appellate review because she did not object to this limitation on expert testimony. See J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998)(stating that except in cases involving fundamental error, “to raise an error on appeal, a contemporaneous objection must be made at the trial level when the alleged error occurred”). The record shows, however, that during the pre-trial discussion regarding preliminary jury instructions on insanity, the court asked whether there were any objections to his proposed restrictions and defense counsel responded: “I only ask we be permitted to have our experts render an opinion that include that in their expert opinion the defendant was insane.” The record does not reflect that defense counsel withdrew his objection or agreed to the ruling after the court clarified that the limitation on expert testimony would apply equally to both parties.

We conclude that the trial court erred in precluding the defense experts from stating their ultimate opinion that appellant was “insane.” However, we determine that in this case such error was harmless as the experts were permitted to fully explore and render opinions on whether appellant met Florida’s test of insanity. In Florida, courts follow the M’Naughton Rule for determining whether a defendant was insane at the time of the crime. Gurganus, 451 So.2d at 820. Under M’Naughton, an accused is not criminally responsible for his actions if, at the time of the offense, the defendant, by reason of a mental disease or defect, (1) does not know of the nature or consequences of his act; or (2) is unable to distinguish right from wrong. Id.

In this case, one defense expert testified that appellant was suffering from major depression and borderline personality disorder, both of which were mental diseases or defects, at the time of the offense. The expert concluded that as a result of those diseases or defects, appellant slipped into a psychotic-like mental state which rendered her mental condition so impaired that, although she knew what she was doing and its consequences, she did not appreciate the wrongfulness of her actions at that time.

Another expert testified that as a result of appellant’s mental disease, she did not know right from wrong at the time of the crime and may not have understood what she was doing or its consequences. In light of the expert evidence presented on the elements comprising Florida’s definition of insanity, coupled with the court’s jury instructions tracking this definition of insanity, and based on our review of the record as a whole, we find that there is no reasonable possibility that the error affected appellant’s conviction for second-degree murder. See Goodwin v. State, 751 So.2d 537 (Fla.2000)(re-affirming the harmless error analysis to be applied in deciding whether an error requires reversal).

Appellant also complains that the trial court prevented her from exploring whether a state’s expert witness accurately understood the legal test for insanity. Appellant sought to challenge the psychologist’s testimony which suggested that appellant did not meet the test for insanity unless she suffered from a “major” mental disease or defect. The record shows, however, that, following a side bar conference, defense counsel was allowed to continue his line of questioning regarding discrepancies between the M’Naughton insanity test and the test utilized by the witness. We therefore find no error on that point.

Finally, appellant asserts that the trial court continuously interrupted and admonished defense counsel during trial, thereby disparaging her insanity defense. However, as appellant concedes, her trial counsel never objected to any of these comments or alleged improprieties. Thus, to overcome a procedural bar to appellate review, the errors complained of must be fundamental. J.B., 705 So.2d at 1378. “For an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.” Randall v. State, 760 So.2d 892, 901 (Fla.2000). It is error that “ Teach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)(quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)).

Determining the existence of fundamental error requires an examination of the entire record as a whole. See Crump v. State, 622 So.2d 963, 972 (Fla.1993). In examining the record as a whole, we first note that most of the comments referenced by appellant occurred outside of the presence of the jury. Second, we find that those comments which were made in front of the jury were not so prejudicial to appellant or her defense as to result in a denial of due process. When considered in the context of the entire trial, the judge’s comments and conduct do not constitute fundamental error.

Accordingly, we affirm appellant’s conviction and sentence.

AFFIRMED.

HAZOURI and MAY, JJ., concur.

      . Appellant's first jury trial ended in a mistrial when the jury was unable to reach a ver-diet.


author: PER CURIAM.

text:
    Eldred REDMON, Appellant, v. Lashore REDMON, Appellee.
    No. 3D01-3608.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Rehearing Denied Feb. 26, 2003.
    Eldred Redmon, in proper person.
    Richard E. Doran, Attorney General, and Toni C. Bernstein and William H. Branch, Assistants Attorney General, for appellee.
    Before COPE, GODERICH and RAMIREZ, JJ.
   PER CURIAM.

Eldred Redmon appeals an order establishing a child support arrearage. We affirm the order on authority of Chattic v. Brooks, 827 So.2d 1044 (Fla. 3d DCA 2002).

Affirmed.


author: JORGENSON, Judge.

text:
    MIAMI-DADE COUNTY, Appellant, v. Arthur WALKER, Appellee.
    No. 3D02-544.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Rehearing and Rehearing En Banc Denied Feb. 26, 2003.

      Robert Ginsburg, Miami-Dade County Attorney, and Roy Wood, Assistant County Attorney, for appellant.
    Gregg M. Goldfarb; Beverly A. Pohl and Bruce Rogow, for appellee.
    Before JORGENSON, LEVY, and GERSTEN, JJ.
   JORGENSON, Judge.

Miami-Dade County appeals from a final judgment in favor of the plaintiff, Arthur Walker, in a civil rights action. For the reasons that follow, we reverse.

Arthur Walker suffered from schizophrenia and manic depression; he was treated with multiple psychotropic medications that kept his illnesses under control. In June, 1986, he had stopped taking his medications and was suffering from hallucinations, depression, and agitation. He was arrested on June 12, 1986, when a Metro-Dade officer responding to complaints of lewd behavior encountered Walker in the hallway of an apartment building banging himself against the wall. Walker did not reply to the officer’s questions or requests, and tried to leave. Eight back-up officers arrived and, after a violent struggle with Walker, arrested him. He was charged with five counts of resisting arrest with violence and five counts of battery on a police officer.

Walker then spent two weeks in intensive care where he was treated for life-threatening injuries resulting from multiple trauma. When he recovered physically, he spent three months receiving treatment in a psychiatric unit.

Walker sued the County alleging various state common law claims, and later included a federal claim for violation of his civil rights under 42 U.S.C. § 1983. Walker alleged that the County lacked adequate policies of training and supervision of police officers in dealing with the mentally ill, and that the lack of such policies was the proximate cause of his injuries.

The County moved for a directed verdict at the close of plaintiffs case in chief, and renewed its motion after the close of all the evidence. The court denied both motions.

In a special interrogatory verdict, the jury found that the police department’s training program was inadequate to train the police officers how to properly respond to the mentally ill when effecting an arrest; that the failure to adequately train the officers to deal with the mentally ill amounted to deliberate indifference to the constitutional right of citizens to be free from the use of excessive force; and that the failure of the police department to adequately train its officers caused a deprivation to plaintiff of his right to be free from the excessive use of force. The County moved for judgment in accordance with its motion for directed verdict and moved for a new trial. The motion for judgment in accordance with the motion for directed verdict was granted as to plaintiffs claims arising under state law for failure to comply with presuit notice, but denied as to his federal claims. Following entry of judgment for the plaintiff, the County appeals.

We reverse, as the County was entitled to a directed verdict on two grounds:

I. As a matter of law, the County’s police training, or its alleged failure to train, did not amount to deliberate indifference to the rights of the persons with whom the police come into contact;

II. Assuming, arguendo, that plaintiff met the burden of establishing deliberate indifference, plaintiff failed to establish the element of causation.

I. PLAINTIFF DID NOT ESTABLISH DELIBERATE INDIFFERENCE

The Supreme Court set forth limited circumstances when a claim for failure to train can serve as a basis of liability under 42 U.S.C. § 1983: where the municipality inadequately trains or supervises its employees; that failure to train or supervise is a municipality policy; and that policy causes the employees to violate a citizen’s constitutional rights. City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). “[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” Id. at 388, 109 S.Ct. 1197. The Court held that deliberate indifference can arise when,

in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.

Id. at 390,109 S.Ct. 1197.

To establish such a deliberate or conscious choice, “a plaintiff must present some evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.1998) (emphasis added). In this case, plaintiff presented evidence that during the 1980s, the County experienced an influx of mentally ill persons, resulting from both the Mariel boatlift and the practice of “deinstitutionalization” of mentally ill persons who were left without treatment. The plaintiff also presented into evidence a 1985 grand jury report that concluded that procedures were not in place in the County to identify and evaluate the mentally ill once they were arrested.

Plaintiff also introduced into evidence a textbook on human behavior, Understanding Human Behavior for Effective Police Work, 2d Edition, authored by Harold E. Russell and Allan Beigel, that was used to teach police recruits at the times relevant to the suit. The textbook included a chapter entitled “How to Handle the Mentally Ill.” Plaintiffs expert witness, Joseph Telizese, a retired Palm Beach police chief, testified that the book was a good training document and that he would have relied upon it in establishing a program on how to deal with the mentally ill. In closing argument, plaintiffs lawyer referred to that very book, used to teach Miami-Dade police recruits, and asked jurors to “look at every single part of that text that [the officers] violated.” The very evidence that plaintiff presented established that the County did in fact provide police training in dealing with the mentally ill, and that the County was not deliberately indifferent to a need for such training. It is of no legal moment that the training was for police recruits, and was not ongoing field training for police officers; or that the training could have been more intensive or, as plaintiff argues, that it could and should have included role-playing. To prove a § 1983 “failure to train” violation, it will not suffice

to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal. And plainly, adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable.

City of Canton, 489 U.S. at 391-392, 109 S.Ct. 1197.

In Gold v. City of Miami, the Eleventh Circuit held that plaintiffs burden to prove deliberate indifference is particularly onerous where, as in this case, there is no evidence of a prior incident in which constitutional rights were similarly violated so as to alert the municipality to the need for particular training. Gold, 151 F.3d at 1351-52. The court noted that “to date, the Supreme Court has given only a hypothetical example of a need to train being ‘so obvious’ without prior constitutional violations: the use of force where firearms are provided to police officers.” Id. at 1352 (citing City of Canton, 489 U.S. at 390, n. 10, 109 S.Ct. 1197); see also Pena v. Leombruni, 200 F.3d 1031, 1033-34 (7th Cir.1999) (Posner, J.) (“If [the County] had seen a rash of police killings of [mentally ill] people and it was well understood that these killings could have been avoided by the adoption of measures that would adequately protect the endangered police, then the failure to take these measure might, we may assume without having to decide, be found to manifest deliberate indifference to the rights of such people.”), cert. denied, 530 U.S. 1208, 120 S.Ct. 2207, 147 L.Ed.2d 240 (2000); Tennant v. Florida, 111 F.Supp.2d 1326 (S.D.Fla.2000) (holding that plaintiff did not establish deliberate indifference where he failed to present evidence of prior incidents where police “were alleged to have injured a disabled person or a person recovering from cardiac surgery by handcuffing them improperly.”).

The plaintiffs expert testified that in his opinion, the training provided by the County was not adequate. However, “an expert’s conclusory testimony does not control this [cjourt’s legal analysis of whether any need to train and/or supervise was obvious enough to trigger municipal liability without any evidence of prior incidents putting the municipality on notice of that need.” Gold, 151 F.3d at 1352 n. 13.

In sum, the plaintiff failed to establish deliberate indifference by the County, as the County did have a training program to teach police recruits how to deal with the mentally ill, and because plaintiff did not establish that the County had notice that other mentally ill persons had suffered similar constitutional violations.

II. PLAINTIFF DID NOT ESTABLISH CAUSATION

The trial court erred in denying the County’s motion for directed verdict on the issue of causation. Assuming for the purpose of argument that plaintiff established the first prong of City of Canton and proved deliberate indifference, plaintiff did not establish the equally important prong of causation.

It is undisputed that plaintiff was the victim of excessive force at the hands of the individual officers. However, plaintiff did not establish that any deficiency in police training in dealing with the mentally ill was the cause in fact of his injuries. For § 1983 liability to attach, “the identified deficiency in a city’s training program must be closely related to the ultimate injury.... To adopt lesser standards of fault and causation would open municipalities to unprecedented liability under § 1983.” City of Canton, 489 U.S. at 391, 109 S.Ct. 1197.

Plaintiffs own expert testified unequivocally that even if plaintiff had not been mentally ill, the force used to arrest him would have been excessive. The expert further testified that the degree of force that was permissible in arresting a mentally ill person was the same degree of force permissible in arresting a person who is not mentally ill. Plaintiffs injuries were caused by the officers’ infliction of excessive force. Plaintiffs did not allege that the plaintiffs injuries were the result of the County’s failure to train police officers in the use of force. Although it may be desirable to take special measures in rendering harmless a dangerous person who appears to be irrational, “failure to adopt those measures would not be more than negligence, which is not actionable under section 1983.” Pena v. Leombruni, 200 F.3d 1031, 1033 (7th Cir.1999).

We reverse the judgment under review, as plaintiff failed to meet his burden of establishing either deliberate indifference or causation.

REVERSED.

      . The original complaint named as defendants the arresting officers as well as the County. Plaintiff voluntarily dismissed the individual defendants.


text:
    Charles NEUSTEIN, Appellant, v. MIAMI SHORES VILLAGE, Appellee.
    No. 3D02-1238.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Rehearing Denied Feb. 26, 2003.
    Charles Neustein, in proper person.
    Genovee Joblove & Battista and Richard Sarafan, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Charles Neustein appeals, a final judgment assessing attorney’s fees against him under subsection 57.105(1), Florida Statutes (2001). We affirm in part and reverse in part.

Mr. Neustein, acting as attorney for Seawinds Healthcare Services, L.L.C., obtained an ex parte temporary injunction against Miami Shores Village. Subsequently, Mr. Neustein filed a voluntary dismissal on behalf of the plaintiff. The trial court found that the Village was entitled to attorney’s fees under subsection 57.105(1), Florida Statutes. The court determined that a reasonable attorney’s fee for the Village was $11,500 which was assessed jointly and severally against Mr. Neustein and Mohammed Ibrahim, the President of Seawinds. Mr. Neustein has appealed the judgment entered against him.

We affirm on the issue of entitlement. The voluntary dismissal did not oust the trial court of jurisdiction to entertain the subsection 57.105(1) motion. See Fla. R. Civ. P. 1.525(2001); Ganz v. HZJ, Inc., 605 So.2d 871 (Fla.1992). We reject the remaining challenges on the issue of entitlement on authority of Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979), and Broadfoot v. Broadfoot, 791 So.2d 584, 585 (Fla. 3d DCA 2001).

We reverse on the amount, and remand with directions to reduce the amount of the judgment to fifty percent of $11,500. In an ordinary award of 57.105(1) fees, “the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney....” § 57.105(1), Fla. Stat. (2001) (emphasis added).

The Village points out that in Visoly v. Security Pacific Credit Corp., 768 So.2d 482 (Fla. 3d DCA 2000), this court described a “party” under this statute as including “any person who participates in litigation regardless of whether or not actually named in the pleadings.” Id. at 488. The cited language does not support the Village here. The question under consideration in that part of the Visoly opinion was whether attorney’s fees could be assessed against the Visolys individually, who had controlled and actively participated in the litigation, but were not formally named as parties. This court concluded that under the circumstances of that case, attorney’s fees should be assessed against the Visolys. That part of Visoly does not support the proposition that by acting as counsel, an attorney necessarily becomes a “party” for purposes of subsection 57.105(1).

The Village argues that the award should be upheld on authority of Avemco Insurance Co. v. Tobin, 711 So.2d 128 (Fla. 4th DCA 1998), but that case is distinguishable. In Avemco the attorney acted without the knowledge of his client to obtain release of certain funds from the court registry, despite counsel’s knowledge of an adverse claim. Counsel kept some of the funds as legal fees. The Fourth District concluded that under the facts there presented, “[a]n attorney representing a client in pending litigation can certainly become a ‘party’ by asserting or defending the attorney’s own personal interest in that litigation....” Id. at 130. No such facts are present in the case now before us.

For the stated reasons, we affirm in part, reverse in part, and remand for reduction of the amount of the judgment.

      . The judgment against Ibrahim is not at issue on this appeal.

      . There is an exception, not applicable here, where the losing party’s attorney "has acted in good faith, based on the representations of his or her client as to the existence of those material facts.” Id. That exception is not applicable here.

      .In the rare case in which it is appropriate to assess the entire attorney’s fee of one side against the opposing side's counsel, the more appropriate framework for analysis would now appear to be the Florida Supreme Court's recent decisions in Moakley v. Smallwood, 826 So.2d 221 (Fla.2002), and Diaz v. Diaz, 826 So.2d 229 (Fla.2002).


author: GODERICH, Judge. SCHWARTZ, Chief Judge

text:
    Robert ALEXANDER and Dianne Alexander, Appellants, v. SUNCOAST BUILDERS, INC., etc., et al., Appellees.
    No. 3D02-1739.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Rehearing Denied Feb. 26, 2003.
    Martin J. Beguiristain and Randy J. Pope, for appellants.

      Elder, Kurzman & Vaccarella, Michael J. Kurzman and Anthony Accetta, Miami, for appellees.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   GODERICH, Judge.

The plaintiffs, Robert and Dianne Alexander [homeowners], appeal from an order granting the defendants, Suncoast Builders, Inc. [Suncoast], John Michael Lynch, Jr., and Steve McManus’, motion to dismiss the amended complaint finding that the action was not filed within the applicable statute of limitations. We reverse and remand for further proceedings.

On October 25, 2001, the homeowners filed suit against Suncoast, a contractor; Lynch, the qualifying agent for Suncoast; and McManus, a subcontractor. In December 2001, the homeowners filed an amended complaint alleging breach of implied warranties and breach of construction codes against all defendants; breach of assignment contract against Lynch and Suncoast; and Deceptive and Unfair Trade Practices against Lynch.

The defendants moved to dismiss the homeowners’ amended complaint arguing that the action was barred by the applicable statute of limitations. § 95.11(3)(c), Fla. Stat. (1991). Section 95.11(3)(c) provides, in pertinent part:

Actions other than for recovery of real property shall be commenced as follows:
(3) WITHIN FOUR YEARS.—
(c) an action founded on the design, planning or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with due diligence.

The trial court granted the motion to dismiss finding that the action involved a latent defect and that it was not brought within four years of discovery of that defect. This appeal followed.

A motion to dismiss a complaint based on the expiration of the statute of limitations should only be granted “in extraordinary circumstances where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statute of limitations bars the action as a matter of law.” Rigby v. Liles, 505 So.2d 598, 601 (Fla. 1st DCA 1987); see also Brickell Biscayne Corp. v. Morse/Diesel, Inc., 683 So.2d 168, 170 (Fla. 3d DCA 1996), review denied sub nom, Arquitectonica Int’l Corp. v. Brickell Biscayne Corp., 695 So.2d 698 (Fla.1997); Khalaf v. City of Holly Hill, 652 So.2d 1246, 1247 (Fla. 5th DCA 1995); General Motors Acceptance Corp. v. Thomberry, 629 So.2d 292, 293 (Fla. 3d DCA 1993). Therefore, in ruling on a motion to dismiss, a trial court may only consider the allegations pled in the complaint.

In the instant case, the allegations contained in the amended complaint are as follows: In September 1992, the homeowners entered into a work authorization and assignment of insurance proceeds contract with Suncoast for repairs to their home following Hurricane Andrew, including the re-roofing of the home. On November 11, 1993, Dade County notified Lynch and Suncoast of defects and deficiencies in the homeowners’ roof system. Further, in January 1994, the Dade County Department of Planning, Development and Regulation issued Lynch and Suncoast a notice of building violations. Following notification, Lynch promised the homeowners that he would repair or replace the roof. In an attempt to repair the roof, in June 1995, Suncoast and McManus provided additional materials and labor, but the defects were not rectified. Thereafter, Lynch continued to promise the homeowners that he would replace the roof. As a result of these defects, the defendants have not been able to obtain a final roofing inspection from Dade County. In August 1998, the Dade County Board of Rules and Appeals [Board] filed an administrative complaint alleging violations which occurred between May 8, 1993 and May 5, 1998. On October 15, 1998, Lynch and Suncoast acknowledged that there were defects in the homeowners’ roof and promised to replace the roof. Because Lynch and Suncoast failed to replace the roof, in March 2001, the Board issued a “Formal Reprimand” to Lynch and Suncoast finding that they were guilty of willfully violating two sections of the South Florida Building Code of 1988.

The homeowners contend that the trial court, in determining whether the statute of limitations had expired, erred by applying the “latent defect” portion of the statute. We agree.

“Latent defects are generally considered to be hidden or concealed defects which are not discoverable by reasonable and customary inspection, and of which the owner has no knowledge.” Lakes of the Meadow Village Homes Condominium Nos. One, Two, Three, Four, Five, Six, Seven, Eight, and Nine Maintenance Ass’ns, Inc. v. Arvida/JMB Partners, L.P., 714 So.2d 1120, 1122 (Fla. 3d DCA 1998)(quoting Henson v. James M. Barker Co., 555 So.2d 901, 909 (Fla. 1st DCA 1990)); see also Black’s Law Dictionary 794-95 (5th ed.1979). In the instant case, the defects involved were not latent. First, the homeowners were aware of the defects. Second, the defects were discovered during a reasonable and customary inspection. Therefore, because the “latent defect” portion of section 95.11(3)(c) is inapplicable, the statute of limitations does not start to run from the “time the defect is discovered or should have been discovered with due diligence.” Rather, pursuant to section 95.11(3)(c), when a latent defect is not involved, the limitation period begins to run from the latest of the following events: the date of actual possession by the owner; the date of the issuance of a certificate of occupancy; the date of abandonment of construction if not completed; the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer.

In the instant case, a review of the amended complaint indicates that the last event to occur was the “the date of abandonment of construction if not completed.” First, we find that the amended complaint sufficiently alleges that construction was not completed because the defendants failed to secure the roof tiles to the deck in a manner that would resist uplift forces and failed to install valleys in accordance with the required specifications of the roof. Moreover, as a result of these failures, the defendants were unable to obtain a final inspection from Dade County. We must next determine when the defendants abandoned construction. Although the homeowners became aware of the defects in November 1993, construction was not abandoned at that time. In June 1995, there was an unsuccessful attempt to remedy the defects. Thereafter, the defendants continued to promise the homeowners that they would return to replace the roof. The amended complaint indicates that such promises were made until October 15, 1998. Therefore, pursuant to the allegations of the amended complaint, the defendants abandoned the construction no earlier than October 15, 1998, the last date that they promised to return to complete the project. As such, because the uncompleted construction was abandoned no earlier than October 15, 1998, the homeowners’ action, which was filed on October 25, 2001, was filed within the four-year statute of limitations.

Finally, the defendants rely on K/F Development & Investment Corp. v. Williamson Crane & Dozer, 367 So.2d 1078 (Fla. 3d DCA 1979), approved by Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983), for the proposition that repairs made in an attempt to remedy defects in construction work do not toll the statute of limitations. Defendants’ reliance on K/F Development is misplaced. K/F is factually distinguishable because it travels under the “catchall” four-year provision in section 95.11(3)(p), Fla. Stat. (1975).

Although not relied on by the parties, Kelley is also distinguishable. Kelley involves a situation in which there had been “completion of construction.” Further, the Kelley opinion does not state which portion of section 95.11(3)(c) was applied. However, the language contained in the opinion indicates that the latent defect portion of the statute was applied. Specifically, the Kelley opinion states that “[t]he record establishes that the school board had knowledge of the defective roofs sufficient to put it on notice that it had, or might have had, a cause of action prior to August 1973” when the roof began to leak, and that “regardless of the school board’s lack of knowledge of a specific defect, the school board knew more than four years prior to [filing the action] that something was wrong with the roofs of these three schools. This knowledge meets the discovery aspect of subsection 95.11(3)(c).” Kelley, 435 So.2d at 806-07. Accordingly, we find that the trial court erred by dismissing the homeowners’ amended complaint and remand for further proceedings.

Based on the disposition of the above issue, we do not address the remaining issue raised by the homeowners.

Reversed and remanded for further proceedings.

COPE, J., concurs.

SCHWARTZ, Chief Judge

(dissenting).

In my opinion, the job was “abandoned” and the statutory time began to run in June, 1995, when the appellees last went to the house, attempted, to the owners’ complete dissatisfaction, to repair the roof, and never returned. The fact that they later promised the appellants that they would correct the situation, much less that they made the same representations to the Regulatory Board in a vain attempt to avoid discipline, should not extend the statutory time. See Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983); K/F Development & Investment Corp. v. Williamson Crane & Dozer Corp., 367 So.2d 1078 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 350 (Fla.1979). I would affirm.


text:
    Albert D. LOBRILLO, Appellant, v. Thomas D. BROKKEN, D.V.M., et al., Appellees.
    No. 3D01-1214.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Rehearing Denied Feb. 26, 2003.

      Bunnell, Woulfe, Kirsehbaum, Keller, McIntyre & Gregoire, Nancy W. Gregoire and Richard T. Woulfe, Fort Lauderdale, for appellant.
    Kubicki Draper and Caryn L. Bellus, Miami, for appellees.
    Before GODERICH and SHEVIN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

The plaintiff below, Albert D. Lobrillo, appeals from an order granting final summary judgment in favor of Thomas D. Brokken, D.V.M., Louis A. Castro, D.V.M., Greg Bonenclark, D.V.M., and Tiegland, Franklin & Brokken, D.V.M.S., P.A. [collectively referred to as “veterinarians”]. We reverse and remand for further proceedings.

Lobrillo filed a malpractice suit against the veterinarians stemming from the treatment of Lobrillo’s racehorse, Proud Sunset. The veterinarians answered the complaint raising several affirmative defenses, but did not raise the affirmative defense of statute of limitations. Lobrillo filed an amended complaint adding allegations that Tiegland, Franklin & Brokken, D.V.M.S., P.A. [TF & B] was vicariously liable for the acts of Dr. Bob Buell and Dr. Scott Hay. The answer to the amended complaint raised the affirmative defense of statute of limitations, but only as to Drs. Buell and Hay.

The veterinarians filed a motion for summary judgment arguing that the action was barred by the applicable statute of limitations. Lobrillo filed a Response in Opposition to Defendants’ Motion for Summary Judgment asserting, in part, that the veterinarians failed to raise the affirmative defense in their answer, and therefore, they may not argue the defense in the motion for summary judgment. The court conducted a hearing on the motion for summary judgment, and granted the motion in favor of the veterinarians based on the statute of limitations. This appeal followed.

Lobrillo contends that the trial court erred by granting final summary judgment in favor of the veterinarians where the affirmative defense of statute of limitations was not raised in the answer. We agree.

Statute of limitations is an affirmative defense that must be specifically pled in the answer. See Fla. R. Civ. P. 1.110(d); Wolowitz v. Thoroughbred Motors, Inc., 765 So.2d 920, 923 (Fla. 2d DCA 2000); Kehle v. Modansky, 696 So.2d 493, 494 (Fla. 4th DCA 1997); Sottile v. Gaines Constr. Co., 281 So.2d 558, 560 (Fla. 3d DCA 1973). Because the veterinarians did not plead the affirmative defense on their behalf, the trial court erred by considering the defense and by granting final summary judgment on that ground. Therefore, we reverse the order under review and remand to allow the veterinarians to move to amend their answer pursuant to Florida Rule of Civil Procedure 1.190 to assert the affirmative defense.

Based on the above disposition, we do not address the remaining issue raised by Lobrillo.

Reversed and remanded.


text:
    Michael ROBACK and Sybele Roback, his Wife, Appellants, v. Louis CASSARO, Enterprise Leasing Company and Enterprise Leasing Company d/b/a Enterprise Rent-A-Car Company, a Foreign Corporation, Appellees.
    No. 4D01-1312.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Rehearing Denied March 11, 2003.

      Michael M. Milchman of the Law Office of Michael M. Milchman, Fort Lauderdale, for appellants.
    Esther E. Galicia of George, Hartz, Lun-deen, Fulmer, Johnstone, King & Stevens, Fort Lauderdale, for appellees Enterprise Leasing Company and Enterprise Leasing Company d/b/a Enterprise Rent-A-Car Company.
   PER CURIAM.

This is an appeal from a dismissal with prejudice and an order denying a motion to amend the complaint in a personal injury automobile accident case.

The Robacks (plaintiffs) filed a complaint in March 1999 against Louis Cas-saro and “Enterprise Rent-A-Car Company” (Rent-A-Car) as a result of an October 1996 automobile accident. The plaintiffs alleged that Cassaro rear-ended them while negligently driving a car leased from Rent-A-Car. The rental agreement, however, was clearly between Cassaro and “Enterprise Leasing Company.” Cassaro is not involved in this appeal, only the two Enterprise companies.

Renb-A-Car filed a motion to dismiss rather than answer to the complaint on the grounds that Leasing Company, not Renb-A-Car, was the correct defendant for the plaintiffs’ lawsuit. Nevertheless, Renb-A-Car never sought a ruling on the motion and then proceeded to participate in intensive discovery for more than a year. In December of 2000, Renb-A-Car moved for summary judgment because it did not own the rental car involved in the accident. The trial court granted this motion, and simultaneously granted the plaintiffs’ motion to amend the complaint to substitute Leasing Company as the proper defendant.

After being served summons pursuant to the amendment, Leasing Company moved to dismiss the action against it with prejudice and quash the service of process on the grounds that the statute of limitations expired. The trial court granted both motions. The plaintiffs then moved to amend the complaint by changing the name of the defendant nunc pro tunc, arguing that Leasing Company would not be prejudiced by the amendment because it shared a commonality of interest with Renb-A-Car. The trial court denied this motion.

The primary issue here is whether the trial court should have allowed the plaintiffs to add Leasing Company to their complaint and to relate back the addition to the date of the original pleading. This is crucial because the statute of limitations expired before the plaintiffs sought amendment.

Rule 1.190 governs relation-back of amendments. “When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” Fla. R. Civ. P. 1.190(c). Generally, adding a new party to an action does not relate back to the original complaint. See Kozich v. Shahady, 702 So.2d 1289 (Fla. 4th DCA 1997).

However, this Court has allowed relation-back where the new party is “sufficiently related to an original party such that the addition would not prejudice the new party.” Schwartz v. Wilt Chamberlain’s of Boca Raton, Ltd., 725 So.2d 451 (Fla. 4th DCA 1999); see Kozich, 702 So.2d at 1289, Schachner v. Sandler, 616 So.2d 166 (Fla. 4th DCA 1993). The Court also recognized in Schwartz that the relation-back rule is to be liberally construed. See Schwartz, 725 So.2d at 454.

The “identity of interest” is manifested in such circumstances as when the companies (1) operate out of a single office; (2) share a single telephone line; (3) have overlapping officers and directors; (4) share consolidated financial statements and registration statements; (5) share the same attorney, and (6) receive service of process through the same individual at the same location.

Schwartz, 725 So.2d at 453 (citations omitted).

On this record, the plaintiffs were on notice that they may have sued the incorrect party. Nevertheless at the motion hearing, the plaintiffs alleged, but the defendants did not address, that the companies shared three of the six factors indicating identity of interest in the Schwartz test. Plaintiffs asserted that the defendants were covered by the same self-insured certificate, had some of the same board members, were represented by the same firm, accepted service through the same party, handled their claims through the same claims office, and worked out of the same Florida rental car offices, one simply owned the cars and the other managed the renting of the cars.

The trial court found notice to be the determinative factor and did not address the Schwartz factors. We hold that the allegations indicated that the amendment of the complaint could relate back to the original filing date, thereby eliminating the statute of limitations problem. Thus, the trial court erred in dismissing the complaint with prejudice without hearing argument regarding the Schwartz factors. Therefore, we reverse the dismissal with prejudice and the denial of the motion to amend and remand for another hearing for the trial court to hear argument regarding the Schwartz factors.

REVERSED AND REMANDED.

GUNTHER, FARMER, JJ., and STREITFELD, JEFFREY E., Associate Judge, concur.


author:
PER CURIAM.
      BLUE, Chief Judge,

text:
    Robert L. BATTLE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-1839.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    Rehearing Denied Feb. 26, 2003.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Robert Battle, Jr., appeals his judgment and sentence for attempted felony murder with a firearm. He does not contest his judgment and sentence for attempted second-degree murder and attempted robbery. We affirm the attempted felony murder charge but write to address an error in the jury instruction on that charge.

The State alleges that Battle shot David Golly in the head during an attempted robbery on January 24, 2000. Golly testified that on that day he was in his pickup truck in an alley in south St. Petersburg trying to buy drugs. Battle approached the truck, said that he would be a second, and stepped away. When Battle returned a few minutes later, Golly saw that Battle had a gun. Battle demanded money from Golly. In response, Golly stepped on the gas pedal of his truck. Battle then fired the gun, striking Golly in the head.

Golly and two witnesses identified Battle from a photopack as the perpetrator. Battle’s theory of defense was that this was a case of intentional misidentification by Golly in an effort to extort money from Battle and intentional misidentification by the witnesses to shield the person who actually confronted Golly in his truck. Battle’s defense suggested that the person who confronted Golly was an individual named Tim Watson.

The State charged Battle with attempted felony murder with a firearm pursuant to section 782.051(1) Florida Statutes (1999), which provides as follows:

Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree, punishable by imprisonment for a term of years not exceeding life,....

The phrase, “that is not an essential element of the felony,” constitutes á necessary element of attempted felony murder under section 782.051(1). Thompson v. State, 814 So.2d 1103 (Fla. 4th DCA 2002); King v. State, 800 So.2d 734 (Fla. 5th DCA 2001); Neal v. State, 783 So.2d 1102 (Fla. 5th DCA 2001). Here, the trial court gave the following instruction on attempted felony murder:

The third crime for which Mr. Battle is charged is attempted felony murder with a firearm.
In order to find the Defendant attempted to commit the crime of attempted felony murder, the State must prove two elements beyond a reasonable doubt:
The first is that the Defendant attempted to perpetrate the crime of robbery, as I have previously explained that crime to you.
And the second element is that during the course thereof, the Defendant committed an intentional action that could have but did not cause the death of David Golly.

Battle did not object to this instruction in the trial court, but he argues that the failure to instruct the jury on an essential element of the crime constitutes fundamental error in this case. The instruction given fails to include the required element in section 782.051(1) that the jury had to find that Battle committed an intentional act “that is not an essential element of the felony.”

The failure to instruct the jury on this essential element is fundamental error if the error pertains “to an element of the crime that is a disputed issue in the case.” King, 800 So.2d at 737; see State v. Delva, 575 So.2d 643 (Fla.1991); Pena v. State, 829 So.2d 289 (Fla. 2d DCA 2002). In Delva, the Florida Supreme Court cited Morton v. State, 459 So.2d 322 (Fla. 3d DCA 1984), for an example of an issue that was not disputed. In Morton, the trial court failed to instruct on the essential elements of robbery, but the court noted that the facts of the robberies were conceded and mistaken identity was the only issue.

Here, the State contends that the omitted element in the jury instruction was not a disputed issue because Battle did not contend that the crime did not occur, but rather that he was misidentified as the perpetrator. It was undisputed that Golly was shot in the head, an act that was not an essential element of the attempted robbery. We note that in Thompson, the Fourth District held that the same omitted element in the attempted felony murder jury instruction was a disputed issue when the defense was mistaken identity, stating that the “defense of mistaken identity required the state to prove every element charged.” Thompson, 814 So.2d at 1104. However, based on the supreme court’s reliance on Morton in Delva, we hold that the failure to instruct on an essential element of attempted felony murder in this case was not fundamental error when the defense was mistaken identification. In doing so, we certify conflict with the Fourth District’s decision in Thompson v. State, 814 So.2d 1103 (Fla. 4th DCA 2002). Accordingly, because the erroneous jury instruction was not fundamental error and Battle did not object to the instruction, we affirm Battle’s judgment and sentence. See Delva, 575 So.2d at 644.

Affirmed.

CASANUEVA and KELLY, JJ., Concur.

BLUE, C.J., Concurs specially with opinion.

BLUE, Chief Judge,

Specially concurring.

I reluctantly concur in the majority decision because I believe the case law cited on fundamental error requires the result. I do so although I disagree with the law we are required to follow. In this case, Mr. Battle pleaded not guilty to the charge of attempted felony murder. At that point, the State had the burden of proving each of the elements comprising that crime to the jury hearing the case, beyond a reasonable doubt. There is no provision in the law that would allow a directed verdict in favor of the State on any of the elements of the crime, but the case law we apply appears to say that it is not necessary for the jury to find all the elements proven beyond a reasonable doubt. We, rather than the jury charged with deciding the case, can determine that one of the elements of the charged crime was undisputed. That would make it appear that the defendant has a burden to offer some evidence beyond his not guilty plea in order to place elements of a crime in dispute.

Morton v. State, 459 So.2d 322 (Fla. 3d DCA 1984), is a particularly disturbing opinion. In that case the trial court instructed the jury on all the elements of the lesser included crimes, but it failed to instruct on the primary offense of robbery. The jury returned a guilty verdict on the robbery charge, and the court affirmed, saying: “The record in the present case reveals that no element of robbery was in dispute at any time during the trial, and thus, no element of robbery was material to the jury’s deliberations.” Id. at 325. 'Compare the dissent in the same case: “The majority has created a rule of law which departs from the well-settled constitutional principle that in a trial by jury every element of a criminal offense must be proved sufficiently to satisfy the jury, not the court, of its existence.” Id. (Ferguson, J., dissenting). That wonderful, succinct statement is what I was attempting to say in my rambling above.

Unfortunately, our supreme court sided, not with the well-reasoned dissent, but cited with approval the majority opinion in Morton. See Delva, 575 So.2d at 645. I hope the court will again look at this question while considering the conflict we have certified. I submit that Justice Kogan’s dissent in Delva, the dissent in Morton, and the holding in Thompson with which we have certified conflict should be the law of Florida.

      . Although not raised as an issue in this appeal, we note that in Mitchell v. State, 830 So.2d 944 (Fla. 5th DCA 2002), the Fifth District held that dual convictions for attempted second-degree murder and attempted felony murder under section 782.051, Florida Statutes (2001), for a single act constitute a double jeopardy violation. The Fifth District certified the question to the Florida Supreme Court as one of great public importance.


text:
    Thomas E. WRIGHT, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and City Furniture Incorporated, Appellees.
    No. 4D03-122.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2003.
    Thomas E. Wright, Fort Lauderdale, pro se.
    No appearance for appellees.
   PER CURIAM.

Affirmed. See Fla. RApp. P. 9.315(a).

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


author: BLUE, Chief Judge.

text:
    George COPELAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3455.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2003.
    Rehearing Denied Feb. 26, 2003.
   BLUE, Chief Judge.

George Copeland appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Copeland was convicted after jury trial of robbery and aggravated assault. He was sentenced as a habitual felony offender to concurrent sentences of thirty years in prison on the robbery count and ten years in prison on the aggravated assault count.

Copeland claims that his thirty-year robbery sentence is a nonhabitual sentence because it is less than the statutory maximum habitual sentence for his offense. Therefore, he argues that the court should have sentenced him according to the sentencing guidelines or, in choosing to depart from the guidelines, the court should have provided written reasons for the departure sentence. Copeland also argues that because his robbery sentence is nonhabitual, the court erred in sentencing him as a habitual felony offender on the aggravated assault count. In sum, he claims that his trial counsel was ineffective in failing to raise such claims by objection or postsen-tencing motion. In a well written order, the trial court denied Copeland’s claim on the basis of this court’s holding in Pankhurst v. State, 796 So.2d 618 (Fla. 2d DCA 2001), stating that Copeland’s robbery sentence was not so “lenient” as to qualify as a nonhabitual sentence and that a sentence for a term of years up to the statutory maximum is a proper habitual sentence. We agree with the trial court’s determination and commend the trial court on its thorough and accurate analysis of Copeland’s claim.

Affirmed.

FULMER and CANADY, JJ., Concur.


text:
    Kenneth GUFFEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3627.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    Rehearing Denied Feb. 26, 2003.
    James Marion Moorman, Public Defender, and Pat T. Dicesare, II, Special Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   BLUE, Chief Judge.

Kenneth Guffey presents six issues in appealing his convictions for shooting into an occupied vehicle and aggravated assault with a firearm. Because we agree the trial court erred in fading to grant Guf-fey’s motion for judgments of acquittal, it is unnecessary to discuss the other five issues. We conclude that the State failed to rebut the prima facie case of self-defense presented by Guffey, and thus we reverse the convictions.

The victim of the assault and the occupant of the vehicle was Kathy “Cissy” Guffey, the wife of the defendant. The incident giving rise to these charges occurred when Cissy and her boyfriend, Dink Murray, drove into the driveway of Guffey’s girlfriend’s house. According to the testimony at trial, Dink got out of the car with a pistol. Again, based on the testimony at trial, both Cissy and Dink had reputations in the community for violence and Dink had within the prior two weeks both assaulted and threatened Guf-fey several times. Guffey testified that Dink fired the pistol at him and that he was afraid for his life. Although no other witnesses saw Dink firing at Guffey, one of the defense witnesses observed Dink fire at the ground upon leaving the car. Guf-fey picked up a shotgun loaded with slugs that was on the porch and fired three or four times, not at Dink or his wife, but at the car in the driveway, hoping to frighten his wife and her boyfriend into leaving. One of the slugs struck the front fender of the car, entered the car, and struck Cissy’s ankle.

All of the above testimony came from Guffey’s taped statement played for the jury, his testimony at trial, and the defense witnesses, who were the only eyewitnesses to testify. Neither the victim nor her boyfriend Dink testified at the trial. The State established the charged crimes through the testimony of investigating officers, who observed the gunshot wound to the victim’s ankle and gunshot holes in the car, and Guffey’s taped statement where he admitted shooting at the car because he feared for his life. The only evidence adduced to rebut the claim of self-defense was the testimony of the investigating officers that they were unable to locate the gun allegedly possessed by Dink Murray, nor any evidence of bullet holes as the result of a gun being fired in Guffey’s direction.

As this court has previously held in Ramos v. State, 496 So.2d 837, 838 (Fla. 2d DCA 1986), “[t]he [SJtate has the burden of proving guilt beyond a reasonable doubt, which includes proving beyond a reasonable doubt that the defendant did not act in self-defense.” In this case, as in Ramos, the State’s evidence was legally insufficient to prove guilt beyond a reasonable doubt because the State failed to rebut Guffey’s direct testimony and that of the eyewitnesses that he acted in self-defense. See also State v. Rivera, 719 So.2d 335 (Fla. 5th DCA 1998); Sneed v. State, 580 So.2d 169 (Fla. 4th DCA 1991); Brown v. State, 454 So.2d 596 (Fla. 5th DCA 1984); Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980).

Guffey’s motion for judgments of acquittal should have been granted. Accordingly, we reverse the convictions and remand for Guffy’s discharge.

FULMER and STRINGER, JJ., Concur.

      . Were it not for our reversal of both convictions for the failure to rebut self-defense, we would reverse the conviction for aggravated assault with a firearm for failure to allege and prove an essential element. See Mateo v. State, 757 So.2d 1229 (Fla. 2d DCA 2000).

      . The trial began somewhat bizarrely with the unobjected-to testimony of a paramedic that the victim had suffered a nervous seizure in the courthouse and was unavailable to testify.


text:
    In the Interest of N.R. and Z.R., Children. L.R., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-2190.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    Rehearing Denied Feb. 28, 2003.
    Louis S. Erickson, Naples, for Appellant.
    William Byrne Isaacs, Port Charlotte, for Appellee.
   PER CURIAM.

We affirm the termination of L.R.’s parental rights to her sons, N.R. and Z.R., based on her voluntary consent to termination and the trial court’s findings at the adjudicatory hearing concerning the best interests of the children.

Affirmed.

ALTENBERND, CASANUEVA, and SALCINES, JJ., concur.


author: SALCINES, Judge.

text:
    James A. STROMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2496.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    Rehearing Denied March 3, 2003.
   SALCINES, Judge.

James Stroman appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he claims that the imposition of a prison sentence partly concurrent with and partly consecutive to another prison sentence is illegal. We agree.

In 1989, Stroman entered guilty pleas in four separate cases to three charges of robbery and one charge of grand theft motor vehicle. He was sentenced to three concurrent fifteen-year habitual felony offender prison sentences for the robberies. For the grand theft, he was sentenced to five years in prison with three of those years concurrent with the concurrent fifteen-year habitual felony offender prison sentences, and two of those five years consecutive to the habitual felony offender sentences.

The Florida Supreme Court in Carter v. State, 786 So.2d 1173, 1181 (Fla.2001), held that a sentence being reviewed pursuant to a rule 3.800(a) motion is illegal if it imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances. Previously, this court, in Butler v. State, 548 So.2d 780, 781 (Fla. 2d DCA 1989), held that a prison sentence imposed partly concurrent with and partly consecutive to another prison sentence is illegal since a prisoner has the right to serve a sentence at one stretch, rather than in bits and pieces. In that opinion, this court cited with approval the Fifth District Court of Appeal’s opinion in Rozmestor v. State, 381 So.2d 324 (Fla. 5th DCA 1980).

In Rozmestor, the Fifth District held that section 921.16(1), Florida Statutes (1979), permitted a court to impose either concurrent sentences or consecutive sentences but not a combination. Rozmestor, 381 So.2d at 326. Similarly, section 921.16(1), Florida Statutes (Supp.1988), authorized Stroman’s sentencing court only to impose either concurrent or consecutive prison sentences, but not a sentence part concurrent with and part consecutive to another prison sentence. There were no changes in the wording of section 921.16(1) between the 1979 and 1988 versions.

The Butler and Rozmestor opinions convince us that imposing a prison sentence that is part concurrent with and part consecutive to another prison sentence is a punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances. Under the definition of an illegal sentence adopted by the Florida Supreme Court in Carter, Stroman’s prison sentence for grand theft is an illegal sentence. In Stephens v. State, 627 So.2d 543, 544 (Fla. 2d DCA 1993), this court stated that a trial court cannot impose an illegal sentence even pursuant to a plea bargain. Therefore, Stroman must be resentenced for grand theft.

We note that Stroman appears to have been in prison for more than five years from the date of his original sentencing on the grand theft charge, which as a third-degree felony generally has a maximum sentence of five years in prison.

Accordingly, we reverse the order of the trial court with directions for the trial court to vacate Stroman’s sentence on the grand theft charge and to resentence Stro-man to five years in prison to be served concurrently with his habitual felony offender sentences with credit for the five years already served in prison on the grand theft charge. Stroman need not be present at the correction of his sentence. We find Stroman’s other claim on appeal to be without merit.

Reversed and remanded.

SILBERMAN and KELLY, JJ., concur.


text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Barbara Louis FRIEND, Respondent.
    No. 1D02-0588.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2003.
    Rehearing Denied Feb. 27, 2003.
    Enoch J. Whitney, General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Petitioner.
    David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Respondent.
   PER CURIAM.

The petitioner seeks review of a circuit court decision granting certiorari and setting aside an administrative order suspending the respondent’s driver’s license. We conclude, that the findings of fact made by the hearing officer are supported by competent substantial evidence. The only issue in dispute was whether the officer had probable cause to arrest the respondent for driving under the influence of alcohol and the record contains at least some evidence that he did. The circuit court applied the wrong standard of review in rejecting this evidence. See Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305 (Fla. 1st DCA 1995). Hence we must grant the present petition for writ of certiorari. The decision of the circuit court is quashed and the administrative order suspending the respondent’s driver’s license is reinstated.

ALLEN, C.J., DAVIS and PADOVANO, JJ., concur.


author: NORTHCUTT, Judge.

text:
    DEPARTMENT OF REVENUE on Behalf of Marilyn BROWN, Appellant, v. William J. STEINLE, Appellee.
    No. 2D01-1234.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2003.

      Charlie Crist, Attorney General, Tallahassee, and Jon J. Johnson and William H. Branch, Assistant Attorneys General, Tampa, for Appellant.
    No appearance for Appellee.
   NORTHCUTT, Judge.

The Department of Revenue challenges the circuit court’s decision that it is barred from seeking unpaid child support for Marilyn Brown based on the doctrine of laches. We reverse, but remand for an evidentiary hearing.

Marilyn Brown and William Steinle were divorced in North Carolina in June 1988, after separating in November 1985. They had two daughters, born October 15, 1980, and May 9, 1984. The parties’ 1985 separation agreement, which was incorporated in the final judgment of dissolution, required Steinle to pay Brown $50 per week in child support for the two children until they became emancipated.

In August 2000, the DOR filed a registration of foreign support order for enforcement under the Uniform Interstate Family Support Act, chapter 88, Florida Statutes (2000). This petition had been forwarded to Florida from North Carolina. The North Carolina authorities sought to register the parties’ final judgment of dissolution and the incorporated separation agreement in order to enforce the child support provision. The petition claimed that Steinle had never paid any child support, resulting in an arrearage of $31,050, as of May 19, 2000.

Steinle contested the registration by filing a motion under section 88.6061, Florida Statutes (2000), arguing that laches barred enforcement of the final judgment. The circuit court conducted a hearing on the registration, and allowed Steinle to present limited testimony. Steinle recounted that sometime in 1986 he decided not to visit his children, thinking it was in their best interest not to fight with their mother over visitation. Sometime after that, he moved to Lakeland. He tried to contact his daughters through Brown, but they argued, she hung up the telephone, and he was unable to speak to them. After that, he called Brown’s home several times, but his former mother-in-law answered. She told him the children were fine and to “leave things the way they are.” His last contact with his children was ten to twelve years before the hearing. He had not seen them in fifteen years. Based on Steinle’s testimony, the court found that Brown’s action to enforce the past-due child support was barred by laches.

In order to prove the defense of laches, the party asserting it must show some prejudice. McCray v. State, 699 So.2d 1366, 1368 (Fla.1997); Dean v. Dean, 665 So.2d 244, 247 (Fla. 3d DCA 1995). Here, the court did not find, nor did the evidence show, any prejudice to Steinle. Mere delay in seeking to enforce a child support obligation is insufficient to establish the requisite prejudice. See Dean, 665 So.2d at 247; Brumby v. Brumby, 647 So.2d 330 (Fla. 4th DCA 1994). Prejudice can be established if, for example, a father stopped paying child support because the mother prevented him from seeing the children, thus depriving both the father and the children of their father-child relationship, Pyne v. Black, 650 So.2d 1073 (Fla. 5th DCA 1995), or, if a father sold his business and retired based on an understanding that the mother would not demand more child support, Brown v. Brown, 108 So.2d 492 (Fla. 2d DCA 1959). But here, Steinle did not prove that Brown withheld the children from him. He testified merely that they argued and he moved to Florida. He never sought to enforce his right to visitation. And the only person who told him to “leave things as they were” was his former mother-in-law. There is simply no evidentiary support for a finding that Brown was guilty of laches. See Dep’t of Revenue ex rel. Dees v. Pietro, 765 So.2d 792, 793 (Fla. 1st DCA 2000). Accordingly, we reverse the circuit court’s order.

That does not end our analysis, however. The documents from North Carolina state that an arrearage is owed and that the Florida courts should collect it. But no judgment has been entered for the unpaid child support, and the only evidence of the amount owed is an affidavit from Brown. Brown could not enforce the entire amount she claims, dating from June 1988, in North Carolina because that state has a ten-year limitation period on the enforcement of back child support. See Albemarle Child Enforcement Agency ex rel. George v. Bray, 130 N.C.App. 552, 503 S.E.2d 686 (1998). But under section 88.6041, “[i]n a proceeding for arrearages, the statute of limitation under the laws of this state or of the issuing state, whichever is longer, applies.” Florida has no statute of limitation on child support enforcement actions, but rather applies laches to determine if the action is barred. Frazier v. Frazier, 616 So.2d 575, 579 (Fla. 2d DCA 1993) (noting courts have decided that periodic alimony and child support do not have a legal counterpart for purposes of statutory laches); see also Garcia v. Guerra, 738 So.2d 459, 464 (Fla. 3d DCA 1999) (noting that it would be helpful if the legislature would adopt a statute of limitations establishing a fair time period for bringing arrearages actions). Thus, Florida law would apply.

In Frazier, the former wife sought registration of a Colorado final judgment of dissolution under the old URESA statutes, which were very similar to the present UIFSA process. Compare § 88.351(c), Fla. Stat. (1991), with § 88.6021, Fla. Stat. (2000). The Frazier court remarked that the URESA registration process was rarely used. Instead, the party seeking support usually would obtain a judgment in the state with jurisdiction and seek to enforce that judgment in Florida. As in this case, Mrs. Frazier had not obtained a judgment for arrears. In connection with the registration of her dissolution judgment, she filed a verified petition stating the amount owed, but her petition did not show how she calculated that amount. 616 So.2d at 577. Although Mr. Frazier contested the registration, the court confirmed it. This court concluded that the legal effect of the confirmation was to create a Florida judgment in the amount of the arrearages Mrs. Frazier claimed. Id. at 577-78. We affirmed the order of registration, but held that due process required that the husband be afforded an evidentia-ry hearing on the amount owed.

The effect of our ruling here is to order the circuit court to confirm the registration. But in doing so, it must grant Steinle an evidentiary hearing on the amount of support owed. See id. at 579-80.

Reversed and remanded.

STRINGER and SILBERMAN, JJ., Concur.


text:
    Cleveland GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4970.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Cleveland Grant, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s 3.800(a) motion for additional county jail credit applied against his eight-year sentence in case no. 97-24413 CF10. The allegations of his motion are insufficient to show entitlement to additional credit. The Department of Corrections (“Department”) is responsible for computing credit for time spent in county jail after sentencing. See § 921.161(2), Fla. Stat. (2002). If the post-sentence credit is incorrect, appellant should pursue his administrative remedies. If appellant is not satisfied after exhausting his administrative remedies, then he can file a petition for writ of mandamus in the circuit court in the county in which he is incarcerated. See Jefferson v. State, 830 So.2d 195, 197 (Fla. 4th DCA 2002); Colson v. State, 830 So.2d 194 (Fla. 4th DCA 2002); Killings v. State, 567 So.2d 60 (Fla. 4th DCA 1990). The county jail where appellant was incarcerated after sentencing was required, when delivering Grant to the Department, to certify in writing “[t]he date the sentence was imposed and the date the prisoner was delivered to the department.” See § 921.161(2)(a). Our affirmance in this case is without prejudice to pursue appropriate remedies.

AFFIRMED.

FARMER, KLEIN and GROSS, JJ., concur.


text:
    Cory P. RYAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2575.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Rehearing Denied Feb. 26, 2003.

      Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Fredericka Sands, Assistant Attorney General for appellee.
    Before COPE and WELLS, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Defendant Cory P. Ryan appeals an order denying his motion for credit for time served. We reverse.

On March 18, 2002, Cory Ryan accepted a court offer and admitted violating his community control in four cases. The circuit judge explained her offer as follows: “I tell you what I will do, two years Y.O. followed by two years Community Control.” The judge questioned Ryan about the rights he was giving up and again told him he would get “two years Youthful Offender prison followed by two years Community Control.” After the court pronounced sentence, a corrections officer asked, “C.T.S. from 2/22?” The judge responded, “Yes, ma'am.” The clerk prepared sentencing orders which granted Ryan credit for time served for the period between February 22, 2002, and sentencing on March 18, 2002. Ryan subsequently filed a motion for credit for time served, arguing that he had spent considerably more time in jail for the cases at issue. That motion was denied by a successor judge.

The general rule is that a sentence that does not mandate credit for time served is illegal since a trial court has no discretion to impose a sentence without crediting a defendant with time served. See State v. Mancino, 714 So.2d 429 (Fla.1998). Ryan argues the case must be remanded with directions to credit all his jail time. In response, the State argues that Ryan waived the error by failing to raise it at sentencing. See Howard v. State, 705 So.2d 947 (Fla. 1st DCA 1998) (affirming as unpreserved the trial court’s failure to award credit for time served).

In Cozza v. State, 756 So.2d 272 (Fla. 3d DCA 2000), however, this court observed that although a defendant can waive credit for time served as part of a plea agreement, such waiver must be clearly shown on the record. “Where a defendant’s waiver of credit for time served is not clearly shown on the record, it will not be presumed.” Cozza, 756 So.2d at 273(citing Wells v. State, 751 So.2d 703, 704 (Fla. 1st DCA 2000)). We find that the record before us does not reflect a voluntary and specific waiver by defendant.

Aceordingly, we reverse and remand for entry of an order crediting Ryan with time spent in jail prior to sentencing.

      . Ryan was given credit for time served since his last probation violation, which occurred on February 22, 2002. Ryan maintained, however, that he was due considerably more time based on the jail time served in the balance of the cases at issue.


text:
    Ricci SCHMIDT, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3647.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Rehearing Denied March 6, 2003.
    Ricci Schmidt, Coral Springs, pro se.
    Charlie Crist, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm without prejudice to permit appellant to file a rule 3.850 motion within 30 days. See Seabrooks v. State, 817 So.2d 934 (Fla. 4th DCA 2002).

FARMER, SHAHOOD and GROSS, JJ., concur.


text:
    Donald Alan TOBKIN, Appellant, v. Marilyn Byrd TOBKIN, Appellee.
    No. 4D02-4952.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Donald A. Tobkin, Hollywood, pro se.
    Michael A. Hymowitz of the Law Offices of Braverman and Rossi, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

KLEIN, STEVENSON and SHAHOOD, JJ., concur.


text:
    Frank BRUSO, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3167.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.

      Frank Bruso, Bonifay, pro se.
    Charlie Crist, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002); Green v. State, 832 So .2d 199 (Fla. 4th DCA 2002).

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


author: THOMPSON, C.J.

text:
    A.D., Father of J.D., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-1068.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    Carol Ann Volini, Ocala, for Appellant.
    Ralph J. McMurphy, Department of Children & Families, Wildwood, for Appel-lee.
   THOMPSON, C.J.

A.D., the father, appeals an order adjudicating his child dependent. We affirm.

Section 39.01(2), Florida Statutes, defines “abuse” as:

[A]ny willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions....

“Harm” includes engaging in violent behavior that demonstrates a wanton disregard for the presence of a child, section 39.01(30)(i), and includes domestic violence committed in the presence of a child, F.R. v. Department of Children and Families, 826 So.2d 449 (Fla. 5th DCA 2002).

Section 39.01(45) defines “neglect” as:
[W]hen a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired....

“Within the context of the definition of ‘harm,’ the term ‘neglects the child’ means that the parent or other person responsible for the child’s welfare fails to supply the child with adequate food, clothing, shelter, or health care, although financially able to do so or although offered financial or other means to do so.” § 39.01(30)(f), Fla. Stat.

In the instant case, the trial court found that the father had neglected the child and that he had abused it on one occasion. The father admitted that he never paid support for the child. According to the father, he did not provide support before he was adjudicated the father because he did not know the child was his. The father provided no support in the months preceding the hearing, although he had been working. The mother testified that the father never provided shelter for her and the child. By the time the hearing took place, the father had an apartment, but during the mother’s pregnancy he and the mother stayed in a car, a laundry shed, and a tent. Shortly after the birth, a domestic violence injunction was issued against him. The father was eventually allowed supervised visitation, but testified that he stopped the visitation because the injunction became an issue. A social worker testified that during visitations the father was more interested in arguing with the mother than with visiting the child. The social worker heard the father tell the mother that he wanted to sign surrender papers because if he could not have her, he did not want the child. The mother testified that the father had never shown any emotional attachment to the child. Further, she testified that the father only exercised two or three visitations.

The mother testified that after entry of the injunction, the father used his car to block the car she was using, and thus prevented her, her step-father, and the child from leaving a parking lot. A witness testified that she had seen the father grab and push the mother on several occasions. On one occasion, according to this witness and another, the father ejected the mother and child from their residence at two o’clock in the morning when the temperature was 27 degrees.

In order to adjudicate a child dependent, the trial court must find by the preponderance of the evidence that the child has been abused, abandoned, or neglected, or is at substantial risk of imminent abuse, abandonment, or neglect. M.J.S. v. Department of Children and Families, 764 So.2d 825 (Fla. 2d DCA 2000). It is the role of the finder of fact, whether a jury or a trial judge, to resolve conflicts in the evidence and to weigh the credibility of witnesses. Ferry v. Abrams, 679 So.2d 80, 81 (Fla. 5th DCA 1996). Great deference is afforded the finder of fact because it has the first-hand opportunity to see and hear the witnesses testify. Id. Here, the trial court found that the father had neglected the child by failing to provide support. Further, the court found that the father abused the child by ejecting the mother and child on a cold morning. Finally, although there was no direct evidence that the child was present during the incidents of domestic violence, the child was present when the father spent his visitation arguing with the mother. Because there was competent, substantial evidence that the child was dependent, the order of adjudication is affirmed.

AFFIRMED.

PETERSON and SAWAYA, JJ., concur.

      . There were two other injunctions against him for the benefit of two other women.


author: DAVIS, Judge.

text:
    Phillip A. WEBSTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3667.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2003.
   DAVIS, Judge.

Phillip Webster challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Webster raised two grounds for relief in his motion. We affirm the order of the trial court since Webster’s first claim is facially insufficient and his second claim is meritless.

In his first ground, Webster alleged that he was illegally sentenced as both a habitual felony offender (HFO) and a prison releasee reoffender (PRR) “for one criminal episode.” Such a sentence is illegal for purposes of rule 3.800(a) if a defendant received both HFO and PRR designations for the same offense. See Tolbert v. State, 827 So.2d 278 (Fla. 2d DCA 2002). The trial court, in denying Webster’s motion, did not address this claim. However, Webster did not present a facially sufficient claim. A PRR designation is only applicable where the defendant has committed an enumerated offense. See § 775.082(8)(a)(l), Fla. Stat. (1997). It does not apply to all offenses. Clearly, a defendant could, in one single episode, commit an offense that is subject to a PRR designation and commit another offense that is not subject to a PRR designation but is subject to an HFO designation. Neither Webster’s motion nor the trial court’s order tells us anything regarding the offense or offenses for which Webster was sentenced. Because Webster did not allege that he received both PRR and HFO designations for a single offense, his claim is facially insufficient. Our affir-mance on this issue is without prejudice to any right Webster might have to present a facially sufficient claim that he was illegally sentenced as both a PRR and an HFO on the same offense.

In his second ground, Webster claims that his sentence or sentences are illegal pursuant to Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed by 821 So.2d 302 (Fla.2002). Taylor held that chapter 99-188, Laws of Florida, was unconstitutional since it was enacted in violation of the single subject rule. Chapter 99-188 amended portions of both the HFO and PRR statutes. In his motion, Webster alleges that he was sentenced in January 1988. This was prior to the enactment of chapter 99-188. See Taylor. Accordingly, we affirm the denial of this claim.

Affirmed.

NORTHCUTT and SALCINES, JJ., Concur.


author: COPE, J.

text:
    Vincent MARGIOTTI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2862.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.

      Vincent Margiotti, in proper person.
    Charlie Crist, Attorney General, and Marni A. Bryson, Assistant Attorney General. for appellee.
    Before COPE and RAMIREZ, JJ., and NESBITT, Senior Judge.
   COPE, J.

Vincent Margiotti appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Defendant-appellant Margiotti entered a guilty plea to several felonies in exchange for an eleven-year sentence as a habitual offender, with a ten-year mandatory term under the ten-twenty-life law. Defendant contends that he does not qualify as a habitual offender because one of the offenses used for habitualization was a misdemeanor. It had been charged as a felony, but had subsequently been reduced. The defendant has produced some evidence which appears to support his contention, and the record now before us fails to conclusively refute his claim. Accordingly we reverse the order now before us and remand for a hearing on the question whether the defendant qualifies as a habitual offender. See Fla. RApp. P. 9.141(b)(2)(D). On remand the State is free to introduce any other convictions which may qualify the defendant as a habitual offender. See Gordon v. Moore, 832 So.2d 880, 881 (Fla. 3d DCA 2002); Delevaux v. State, 762 So.2d 1062 (Fla. 3d DCA 2000).

We affirm the trial court’s order with respect to the second issue. Defendant was given a ten-year mandatory minimum term under the ten-twenty-life law, because of possession of a firearm during the commission of the charged offenses. During the burglary, the defendant used an antique, inoperable firearm. The defendant argues that under ten-twenty-life law, an antique firearm is excluded and the mandatory minimum sentence must be vacated.

We agree with the trial court in rejecting this argument. The ten-twenty-life law applies where the offender “actually possessed a ‘firearm’ or ‘destructive device’ as those terms are defined in s. 790.001 ....”§ 775.087(2)(a)l., Fla. Stat. (1999). Under subsection 790.001(6), Florida Statutes, “The term ‘firearm’ does not include an antique firearm unless the antique firearm is used in the commission of a crime.”

In this case the elderly victim testified that he was sleeping when the defendant entered his home and began choking him. The defendant pressed a gun to his head and hit him over the head with it. After the crime, the antique firearm was found on the bed where the victim had been sleeping.

Since the record supports the use of the firearm in the commission of the crime, the ten-twenty-life law was properly invoked. The fact that the gun was inoperable makes no difference. See Bentley v. State, 501 So.2d 600 (Fla.1987); Mitchell v. State, 698 So.2d 555, 558 (Fla. 2d DCA), ap proved on other grounds, 703 So.2d 1062 (Fla.1997); State v. Altman, 432 So.2d 159 (Fla. 3d DCA 1983). The trial court thus correctly denied relief on the claim that the ten-year mandatory minimum sentence could not lawfully be imposed under the facts of this case.

Affirmed in part, reversed in part and remanded for a hearing on the question whether the defendant qualifies as a habitual offender.

       The crime date was July 14, 1999.