author: FULMER, Judge.

text:
    Orlando ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4925.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2003.
    James Marion Moorman, Public Defender, and James C. Banks and Alexander Dombrowsky, Special Assistant Public Defenders, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Orlando Adams appeals his convictions and sentences for conspiracy to traffic in heroin and trafficking in heroin. We affirm the convictions without comment, but we reverse the mandatory minimum sentence for trafficking.

Adams was sentenced as a habitual offender to concurrent terms of thirty years’ imprisonment; he received a fifteen-year mandatory minimum sentence for trafficking in heroin under section 893.135(1)(e)(1)(b), Florida Statutes (2001), for an offense committed in October 2001. The mandatory minimum sentencing provision was added by chapter 99-188, Laws of Florida, which this court declared unconstitutional as a violation of the single subject requirement. See Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002) (table decision). This court has also held that the subsequent reenactments of these provisions cannot be retroactively applied without violating the Ex Post Facto Clauses in the United States and Florida Constitutions. Green v. State, 839 So.2d 748 (Fla. 2d DCA), review granted, Franklin v. State, 854 So.2d 659 (Fla.2003). Because the offense date falls within the Taylor window, see Green, 839 So.2d at 750 n. 1, we reverse the mandatory minimum sentence. We also certify that Taylor and Green conflict with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), review granted, 854 So.2d 659 (Fla.2003).

Convictions affirmed; mandatory minimum sentence stricken; conflicts certified.

CANADY and VILLANTI, JJ., Concur.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    CITY OF MIAMI, Petitioner, v. Gayle SINOPOLI, Respondent.
    No. 3D02-2690.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Rehearing Denied March 10, 2004.
    Alejandro Vilarello, City Attorney; Robert S. Glazier, Miami, for petitioner.
    Judson L. Cohen, Miami, for respondents.

      Before GERSTEN, RAMIREZ, and WELLS, JJ.
   WELLS, Judge.

In this petition for writ of certiorari, the City of Miami challenges a decision of the circuit court appellate division that found the City’s vehicle impoundment ordinances unconstitutional. For the following reasons, we grant the petition.

The City impounded Respondent Gayle Sinopoli’s car under sections 42-120 through 42-125 of the City of Miami Code. Respondent Sinopoli challenged the im-poundment in an administrative proceeding. After losing before the hearing officer, Sinopoli appealed to the circuit court appellate division on the sole basis that the vehicle impoundment ordinances were unconstitutional. The circuit court agreed, finding that sections 42-120 through 42-125 of the City of Miami Code violated the eighth amendment of the United States Constitution.

The City files this petition for writ of certiorari claiming that the circuit court departed from the essential requirements of the law and denied the City due process by declaring the ordinances unconstitutional. We agree. Respondent Sinopoli could not challenge the constitutionality of the ordinances on appeal to the circuit court. Miami-Dade Co. v. Omnipoint Holdings, Inc., 863 So.2d 195 (Fla.2003)(finding that “a petition seeking certiorari review is not the proper procedural vehicle to challenge the constitutionality of a statute or ordinance”). Instead, the constitutionality of the ordinances must be determined in original proceedings before the circuit court. Id.

Accordingly, we grant the petition for writ of certiorari, quash the decision of the circuit court appellate division, and remand this cause to the circuit court for a determination consistent with this court’s recent opinion in City of Miami v. Wellman, No. 01-3050, — So.2d -, 2004 WL 231192 (Fla. 3d DCA Feb. 4, 2004).


author: OFTEDAL, RICHARD L., Associate Judge.

text:
    FARMERS GROUP, INC., a Nevada corporation, Truck Underwriters Association d/b/a Truck Insurance Exchange, a California corporation, Appellants, v. MADIO & COMPANY, INC., a Florida corporation, Appellee.
    No. 4D03-1275.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.

      Nancy W. Gregoire and Richard T. Woulfe of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellants.
    Paul 0. Lopez of Tripp Scott, P.A., Fort Lauderdale, for appellee.
   OFTEDAL, RICHARD L., Associate Judge.

Appellants, the Defendants below, appeal from a non-final order denying their motion to dismiss for improper venue. Because we find that the trial court erred in refusing to enforce a forum selection clause incorporated in the parties’ contractual agreement requiring that the Plaintiffs action be brought in California, we reverse.

Appellants are foreign corporations in the business of selling insurance who entered into a Healthcare Professional Liability Insurance Agent’s Agreement (the “Agreement”) with Appellee Madio & Company, Inc., a Florida corporation (“Madio”). The Agreement provides in unambiguous terms that any action arising out of, connected with, or to enforce the Agreement will be brought in California. This court has consistently held in similar cases “that unambiguous mandatory forum selection clauses contained in contract documents are presumptively valid and should be enforced in the absence of a showing that enforcement would be unreasonable or unjust.” Swarovski N. Am., Ltd. v. House of China, Crystal & Silver, Inc., 848 So.2d 452, 453 (Fla. 4th DCA 2003)(citing Bombardier Capital Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131 (Fla. 4th DCA 2001), review denied, 828 So.2d 388 (Fla.2002)).

The trial court apparently found that the forum selection clause in the Agreement was never intended to cover Madio’s tort claims and alleged violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). We disagree. The fact that one of Madio’s claims sounds in tort does not preclude enforcement of an otherwise valid forum selection clause where, as in this case, there is a significant and obvious nexus between the claim and the Agreement. See Henderson v. Idowu, 828 So.2d 451, 453 (Fla. 4th DCA 2002). Madio’s tortious interference claim alleges that Appellants intentionally interfered with Madio’s business relationship with certain doctors by improperly contracting with them and that their interference resulted in a termination of Madio’s business relationship with some of these doctors. Resolution of this claim requires reference to or interpretation of the Agreement itself.

Similarly, the mere fact that Madio’s remaining claims allege statutory violations of the FDUTPA does not mean that they are not subject to the forum selection clause chosen by the parties. Like Ma-dio’s tortious interference claim, these claims have their origin and genesis in the Agreement. Clearly, a nexus exists between the FDUTPA claims and the Agreement. Nor is there any merit to Madio’s contention that enforcement of a forum selection clause to its FDUTPA claims violates Florida’s public policy. See Aztec Med. Servs., Inc. v. Burger, 792 So.2d 617 (Fla. 4th DCA 2001).

Finally, we find that enforcement of the forum selection clause is neither unreasonable nor unjust. It is not enough for Madio to show that litigation in California would result in additional expense or inconvenience. See Am. Online, Inc. v. Booker, 781 So.2d 423, 424-25 (Fla. 3d DCA 2001). Instead, Madio must establish that trial of this case outside of Florida would be so gravely difficult as to effectively deprive it of its day in court. See Bombardier, 801 So.2d at 134 n. 1 (citing Manrique v. Fabbri, 493 So.2d 437, 440 n. 4 (Fla.1986)). Madio did not present such evidence and the trial court made no such finding.

Accordingly, we reverse and remand with directions to the trial court to enter an order dismissing Madio’s amended complaint for improper venue.

REVERSED and REMANDED.

POLEN and GROSS, JJ., concur.

      . Appellant Truck Insurance Exchange more accurately describes itself as a California reciprocal or interinsurance exchange, a creature of statute formed and operated pursuant to the California Insurance Code.

      . See §§ 501.201-.213, Fla. Stat. (1997).


author: PER CURIAM.

text:
    Keith TIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-601.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2004.
    Rehearing Denied April 2, 2004.
    James Marion Moorman, Public Defender, and James C. Banks, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to any right Timmons may have to file a motion for postconviction relief.

SALCINES, COVINGTON, and WALLACE, JJ., Concur.


text:
    James Lee RUDOLPH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D03-92.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2004.
    Rehearing Denied April 12, 2004.
    James Lee Rudolph, Jr., pro se.

      Charles J. Crist, Jr., Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, Attorneys for Appel-lee.
   PER CURIAM.

AFFIRMED, without prejudice to properly file a claim of ineffective assistance of counsel. Johnson v. State, 501 So.2d 94 (Fla. 1st DCA 1987).

BOOTH, PADOVANO and BROWNING, JJ., Concur.


author: PER CURIAM,

text:
    Hugh WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-5519.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2004.
    Rehearing Denied April 14, 2004.
    Hugh Ward, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM,

DENIED. See Fla. R.App. P. g 141(c)(4)(B)

BOOTH, PADOVANO and BROWNING, JJ., concur.


text:
    Dana Lydell JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-314.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2004.
    Rehearing Denied March 30, 2004.
    Dana Lydell Johnson, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See section 775.084(2), Florida Statutes.

PALMER, ORFINGER and MONACO, JJ., concur.


author: POLEN, J.

text:
    GREAT SOUTHERN LIFE INSURANCE CO., Appellant, v. Filamena PORCARO, as Personal Representative of the Estate of John Anthony Porcaro, deceased, and Jeff D. Hackmeier & Associates, Inc., Appellees.
    No. 4D03-659.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    Rehearing Denied April 28, 2004.
    Wendy S. Leavitt of Steel Hector & Davis LLP, Miami, for appellant.

      Kenneth E. Cohen and Jeffrey E. Holman of Holman & Cohen, Hollywood, for appellee Filamena Porcaro, as Personal Representative of the Estate of John Anthony Porcaro, deceased.
   POLEN, J.

Great Southern appeals the denial of its motion to enforce the settlement agreement as well as the final summary judgment in favor of Filamena Porcaro requiring it to pay the $1,500,000 policy amount on John Porcaro’s life insurance policy. We affirm the trial court’s denial of Great Southern’s motion to enforce the settlement agreement. However, we reverse the final summary judgment for the reasons which follow.

John Porcaro’s life was insured in the amount of $1,500,000 under a term life policy issued by Great Southern Life Insurance Company. Mr. Porcaro mysteriously disappeared around June 13, 1998. More than two years after he was last seen, his wife filed a petition in probate court to have him declared dead. She notified Great Southern of the hearing, but it elected not to participate, requesting only that Mrs. Porcaro inform the company of the outcome of the hearing. After the uncontested hearing, the probate court declared Mr. Porcaro dead as of the date it issued the order, October 18, 2000.

Aftqr Great Southern refused to pay out on the policy, Mrs. Porcaro, as representative of Mr. Porcaro’s estate, sued Great Southern for the $1,500,000 policy amount. Mrs. Porcaro and Great Southern filed competing motions for summary judgment. Mrs. Porcaro claimed Great Southern was statutorily barred from contesting coverage, and collaterally estopped from reargu-ing the issue of Mr. Porcaro’s death. Great Southern alleged that Mrs. Porcaro, as representative of Mr. Porcaro’s estate, lacked standing to bring the suit for proceeds under the insurance policy because one of Mr. Porcaro’s business interests, Father and Son Moving & Storage, Inc., not Mr. Porcaro’s estate, was the beneficiary of the policy.

The court ruled: 1) Great Southern was not collaterally estopped from arguing the date of Mr. Porcaro’s death; 2) the insurance policy is incontestable as a matter of law; 3) Great Southern failed to overcome the presumptive date of Mr. Porcaro’s death; 4) by demanding the continued payment of premiums, Great Southern waived its right to contest the reinstatement; and 5) Great Southern was es-topped from denying liability because it did not raise defenses within the contesta-bility period. The court also granted Mrs. Porcaro’s motion to strike Great Southern’s affirmative defenses. The court entered final judgment ordering Great Southern to pay Mr. Porcaro’s estate $1,500,000 on the policy and $309,699.60 in prejudgment interest.

In this appeal, Great Southern argues the trial court erred in denying its motions for summary judgment and to enforce a purported settlement agreement it entered with Mrs. Porcaro. It also argues the court erred in granting Mrs. Porcaro’s motion for summary judgment and motion to strike Great Southern’s affirmative defenses.

We find there are material issues of fact that still remain to be resolved which preclude summary judgment. First, for purposes of this suit it is uncertain whether Mr. Porcaro is actually dead. Great Southern presented deposition evidence from which a jury could reasonably determine that Mr. Porcaro may have fled to avoid prosecution and, thus, still be alive. Furthermore, the probate court’s ruling does not constitute prima facie evidence of Mr. Porcaro’s death. While a death certificate obtained through probate proceedings provides some evidence of death, death certificates no longer have prima facie evidentiary value outside the context of probate proceedings. See Ch. 97-287, § 106, at 4169, Laws of Fla. (eliminating provision in section 382.025(5), Florida Statutes, that provided for such prima facie evidentiary value in “all courts and cases”); Branca by Branca v. Sec. Benefit Life Ins. Co., 773 F.2d 1158 (11th Cir.1985) (holding section 731.103, Florida Statutes, providing for prima facie evidentiary value upon the presentation of enumerated evidence of death, applies only in probate proceedings). Therefore, the burden was on Mrs. Porcaro to establish her husband’s death. It was error for the trial court to accord presumptive evidentiary value to the death certificate, placing the burden on Great Southern to demonstrate that Mr. Porcaro was alive.

There is also a material issue of fact with regard to the reinstatement of insurance that precludes summary judgment. After lapsing, Mr. Porcaro’s insurance policy was reinstated in August 1998. Great Southern argued the reinstatement was invalid either as a result of fraud or as a result of Mr. Porcaro dying prior to the reinstatement becoming effective. The trial court found Great Southern was precluded from challenging the validity of the reinstatement on the grounds of fraud as it failed to make this challenge during the contestability period provided for in sections 627.455 and 627.472, Florida Statutes. Pursuant to these sections, a reinstatement is incontestable on the ground of fraud after it has been in force, during the lifetime of the insured, for a period of two years. Because the probate court death certificate provides only some evidence of Mr. Porcaro’s death, and a jury could reasonably conclude that Mr. Porcaro actually died prior to the date ruled by the probate court, closer to the date of his disappearance, there is a material issue of fact as to whether Mr. Porcaro died within the two-year incontestability period. Therefore, it was improper for the trial court to grant summary judgment on this ground. It was also error for the trial court to strike Great Southern’s affirmative defenses on the ground that the reinstatement was incontestable.

Finally, there is a material issue of fact as to whether Great Southern waived its ability to contest the reinstatement by continuing to collect premium payments. While it is true that an insurer can waive the right to contest a policy through the continued acceptance of premiums, the insurer must have the intention to relinquish the right. See Leonardo v. State Farm Fire & Cas. Co., 675 So.2d 176, 178 (Fla. 4th DCA 1996). Great Southern presented evidence that at the time it continued to accept the payment of premiums, it was not aware the policy may have been fraudulently reinstated. This evidence created a material issue of fact as to whether Great Southern intended to waive its ability to contest the policy; thus, summary judgment on this ground was improper.

We decline to address the remaining issue in this appeal as we find it to be without merit. The final summary judgment of the trial court is reversed and remanded for further proceedings consistent herewith.

AFFIRMED in part, REVERSED in part.

GROSS, J., and OFTEDAL, RICHARD L., Associate Judge, concur.


text:
    Lazslo LENART, Appellant, v. OCWEN FINANCIAL CORP., Appellee.
    No. 3D03-188.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.

      Marlow, Connell, Valerius, Abrams, Adler, Newman & Lewis and William G. Edwards and Maury L. Udell, Coral Gables, for Appellant.
    Smith, Hiatt & Diaz and Roy A. Diaz (FtLauderdale), for Appellee.
    Before LEVY, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Lazslo Lenart, the homeowner, appeals from an Order entering Final Summary Judgment in favor of third-party defendant, OCWEN Financial Corporation (OCWEN).

The matter before the Court arises out of an action brought by Lenart against Florida Residential Property and Casualty Joint Underwriting (“the insurer”) after the insurer denied Lenart’s insurance claim for fire damage to Lenart’s home, the insured property, in December of 1998. At the time of the fire, OCWEN owned the mortgage on the property. After the fire, Lenart ceased payment of the mortgage and a foreclosure action was filed on the mortgage.

On February 7, 2000, Summary Final Judgment of Foreclosure was entered against the insured property in the amount of $134,503.68. At the foreclosure sale, Aurora Loan Services, Inc., the mortgagee, successfully bid on the property and took title on August 4, 2000. On the date of sale, the foreclosure judgment totaled $141,062.98 as a result of accrued interest due between February 7, 2000 and August 4, 2000. It is undisputed that the property value on the date of sale was $130,000.00.

Some time after the foreclosure sale, Lenart’s claim with the insurer settled for $90,000. The insurer included OCWEN on the issued check because OCWEN was a loss payee under the policy. OCWEN refused to endorse the settlement draft and Lenart filed a Third Party Complaint against OCWEN, seeking the proceeds from the insurance claim.

Lenart sought Summary Judgment against OCWEN on the ground that OCWEN did not have an interest in the proceeds in light of the foreclosure action. In sum, Lenart argued that OCWEN’s receipt of the sale proceeds following the foreclosure extinguished any insurable interest created by the debt between Lenart and OCWEN. OCWEN filed its own Motion for Summary Judgment against Le-nart alleging that OCWEN was entitled to the entire settlement proceeds because upon foreclosure, OCWEN became the owner of the property. OCWEN relied on Secured, Realty Investment Fund, Ltd., III v. Highlands Insurance Co., 678 So.2d 852 (Fla. 3d DCA 1996) and Nationwide Mutual Fire Insurance Co. v. Wilbom, 291 Ala. 193, 279 So.2d 460 (1973) to support its argument that where a mortgagee pursues foreclosure of property after a loss, if the debt is not satisfied by the foreclosure sale, the mortgagee is entitled to recover under the insurance policy as “owner” of the property.

The trial court granted Summary Final Judgment in favor of OCWEN, awarding OCWEN the full $90,000 settlement, finding that OCWEN’s debt was not extinguished as a result of the foreclosure sale. We reverse.

The trial court cited Secured Realty Investment Fund, Ltd., III v. Highlands Insurance Co., 678 So.2d 852 (Fla. 3d DCA 1996) to support its finding that OCWEN was entitled to receive the full amount of the insurance proceeds. The trial court’s focus on Secured Realty, however, is misplaced. In Secured Realty, this Court specifically explained that the “foreclosure af-' ter loss” cases could not be applied to the “foreclosure before loss” context that the Court reviewed in Secured Realty. Secured Realty, 678 So.2d at 855.

In Secured Realty, the mortgagee, Secured Realty, foreclosed on real property. When the sheriff went to the property to execute a Writ of Possession, it was discovered that the property was extensively damaged. The parties, Secured Realty and the insurer, Highlands Insurance Company, stipulated that the damage to the property occurred after the foreclosure. Secured Realty, 678 So.2d at 853. Secured Realty submitted a loss claim to the insurer for the foreclosed properties. The insurer denied the claim. Suit was filed against the insurer and the insurer responded that Secured Realty did not have an insurable interest at the time of the loss because “[w]hen Secured Realty took title to both properties as a result of foreclosure, their fair market value exceeded the redemption amount.” The insurer reasoned that the debt was satisfied, and thus discharged, at the time of foreclosure. Id. at 853-54. The insurer also argued that if Secured Realty had an insurable interest at the time of the loss, its recovery should be limited to the difference between the redemption amount and the amount Secured Realty realized from the post-loss sale of the properties. The trial court agreed with the insurer, including the alternative disposition if the matter was reversed.

On appeal, this Court recognized that the loss payee clause of the insurance contract was a standard, or New York clause, which generally protects the mortgagee’s interest to property, despite the mortgagor or insured’s, actions. Secured Realty, 678 So.2d at 854-55. The Court then considered the effect foreclosure had on Secured Realty’s right to collect the insurance proceeds for a loss that occurred after foreclosure. The Court rejected the insurer’s argument that Secured Realty did not have an insurable interest, and recognized the differing treatment in a loss after foreclosure context, as opposed to the foreclosure after loss situation. Id.

In the “foreclosure prior to loss” situation ... the foreclosure ... occurs in the context of the insured property existing in its undamaged condition and the satisfaction of debt takes into account the value of such property in its undamaged condition prior to loss and the need for the insurance to follow the property. In the “foreclosure after loss” situation ... the foreclosure occurs in the context of the insured property having been damaged and the satisfaction of the debt takes into account the damaged condition of the property at the time of such foreclosure.

Id. at 855 (citing Nationwide Mut. Fire Ins. Co. v. Wilbom, 291 Ala. 193, 279 So.2d 460, 464 (1973)(emphasis added)).

In the [“foreclosure prior to loss”] situation, the value of the undamaged property at the time of foreclosure is an incident to the satisfaction of the debt; while in the [“foreclosure after loss’], to allow recovery of insurance proceeds by the mortgagee after full satisfaction of the debt would amount to mortgagee’s unjust enrichment.

Wilborn, 279 So.2d at 464.

The Wilborn Court explained that when the foreclosure precedes the loss, the mortgagee occupies the status of “owner” at the time of the loss, and has an insurable interest in protecting his property from loss. Wilborn, 279 So.2d at 463. On the other hand, where the loss precedes the foreclosure the mortgagee is the creditor of the owner at the time of loss, and has an election as to how to satisfy the debt. The mortgagee may either turn to the insurance company for payment as mortgagee under the New York Standard Mortgage Clause and recover, up to the limits of the policy, the mortgage debt; or the mortgagee may foreclose on the property. If the mortgagee elects to pursue the insurance company for payment of the debt, then the debt is fully satisfied and the mortgagee does not have any additional recourse against the mortgagor. If the mortgagee elects to foreclose on the property and the foreclosure sale does not bring the full amount of the mortgage debt, then the mortgagee may recover the deficiency under the insurance policy as owner. Wilborn, 279 So.2d at 463-64 (citing Aetna Ins. Co. v. Baldwin Co. Building & Loan Ass’n, 163 So. 604 (Ala.1935)). The Court reiterated that “in no event is the plaintiff-mortgagee due to collect more than the debt secured.” Id.

In the instant case, like Wilborn, we are faced with a pre-foreclosure loss. The property sustained damages and Le-nart, the owner/insured, filed a claim with his insurer. In the meantime, the property was foreclosed by the mortgagee, OCWEN, who obtained a foreclosure judgement on the property in the amount of $134,503.68. After the foreclosure sale,' the parties stipulated that the market value of the property at the time of the sale was $130,000.00. On the date of sale, the .foreclosure judgment totaled $141,062.98 $134,503.68 judgment, plus accrued interest. As a result, a deficiency was due and owing to OCWEN in the amount of $11,062.98. The insurer subsequently setr tied the insurance claim for $90,000.00, and issued a check to the insured, Lenart, and to the mortgage holder, OCWEN. See Pick v. Gilbert, 605 So.2d 182 (Fla. 3rd DCA 1992)(quoting Travelers Ins. Co. v. Providence Washington Ins. Group, 142 A.D.2d 968, 968-69, 530 N.Y.S.2d 390, 390 (1988)(“Where a mortgagee purchases the property at a foreclosure sale, the outstanding mortgage debt must be reduced by the greater of the mortgagee’s purchase price or the actual market value of the property.”)).

OCWEN argued below, and the trial court agreed, that OCWEN is entitled to the entire proceeds of the insurance settlement. Specifically, the trial court found that “the taking of title to the property increased the mortgagee’s [OCWEN] interest in the insurance policy as that of an owner.” This finding is erroneous, and a misreading of the holdings of Secured Realty and Wilborn. The rights of a loss-payable mortgagee are determined as of the time of the loss. See Norfolk & Dedham Mut. Fire Ins. Co. v. Schlehuber, 327 So.2d 891 (Fla. 3d DCA 1976)(citing Rosenbaum v. Funcannon, 308 F.2d 680 (9th Cir.1962); Whitestone Savings & Loan Ass’n v. Allstate Ins. Co., 28 N.Y.2d 332, 321 N.Y.S.2d 862, 270 N.E.2d 694 (1971)). In the instant case, at the time of loss, OCWEN’s insurable interest was that of a loss-payable mortgagee. Upon electing to foreclose on the property, OCWEN’s interest in the insurance proceeds was limited to any deficiency of the security debt that was not recouped in the foreclosure sale. See Wilborn, 279 So.2d at 463-64 (“[I]n no event is the plaintiff-mortgagee due to collect more than the debt secured.”).

Lenart asks this Court to limit OCWEN’s recovery to monies owed as of the time of the loss, i.e., the amount of the security debt at the time of the fire, without regard to accrued interest, the foreclosure judgment and any subsequent costs. Lenart relies on Fifth Third Bank, v. Indiana Insurance Company, 771 N.E.2d 1218 (Ind.Ct.App.2002) to support its argument. We reject Lenart’s argument and find that Fifth Third Bank is inapplicable where, as here, the mortgagee has obtained a foreclosure judgment and is recovering pursuant to that judgment. Cf. Fifth Third Bank, 771 N.E.2d at 1218.

In light of the foregoing, we find that OCWEN is only entitled to the amount of the deficiency, plus interest, and Lenart is entitled to the balance of the $90,000.00 settlement. Accordingly, the trial court’s Order granting Summary Final Judgment and awarding the full amount of the settlement to OCWEN is reversed, and the matter is remanded for further proceedings consistent herewith.

Reversed and remanded.

      . OCWEN serviced Mr. Lenart's mortgage for Aurora Loan Services, Inc.


author: LEWIS, J.

text:
    STATE of Florida, OFFICE OF the ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, Appellant, v. WYNDHAM INTERNATIONAL, INC., et al., Appellees.
    No. 1D02-4341.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2004.

      Charlie Crist, Attorney General; George S. Lemieux, Deputy Attorney General; Tina Furlow, Assistant Attorney General; John Mark Kraus, Assistant Attorney General, Tallahassee, for Appellant.
    Katherine A. Bacal, Esq. of Baker & McKenzie, San Diego; Jerome W. Hoffman, Esq. and Susan L. Kelsey, Esq. of Holland & Knight LLP, Tallahassee, for Appellees.
   ON MOTION FOR REHEARING, CLARIFICATION, REHEARING EN BANC, AND CERTIFICATION.

LEWIS, J.

We deny the motion for rehearing, rehearing en banc, and certification filed by appellees McCleave and Wagoner. We grant the motion for clarification, withdraw our opinion filed on December 31, 2003, and substitute the following opinion in its place.

The Office of the Attorney General of the State of Florida sued two corporations, Wyndham International, Inc. (“Wynd-ham”), and Patriot American Hospitality, Inc. (“Patriot”), and four Wyndham employees, Theodore Teng, William McCleave, Laurie Leh (formerly Holm), and Jeff Wagoner (“individual appellees”) for alleged violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), sections 501.201-.213, Florida Statutes (2001). The individual appel-lees moved to dismiss the suit for lack of personal jurisdiction, among other grounds, raising the corporate shield doctrine and asserting a lack of sufficient contacts with Florida to allow for the exercise of personal jurisdiction over them. The trial court determined that it lacked personal jurisdiction over the individual appellees and entered an order granting their motion to dismiss with prejudice. The trial court dismissed Teng on the additional ground that the amended complaint failed to state a cause of action against him. Concluding that appellees McCleave and Wagoner are subject to jurisdiction in Florida, we reverse the trial court’s order as to these appellees and remand for further proceedings. We otherwise affirm the order as to appellees Teng and Leh.

The amended complaint alleged that Wyndham and Patriot, a subsidiary of Wyndham, owned and operated numerous hotels in Florida and that the corporations and the individual appellees had violated FDUTPA. According to the Attorney General, the basis of this allegation was an energy surcharge of $2.50 to $3.00 per night, in addition to the regular room rate, which Wyndham instituted at its hotels and properties, including those in Florida, beginning in March 2001 and continuing through December 2001. The amended complaint further alleged that the surcharges had not been disclosed to consumers when they made their reservations or entered into contracts for certain room rates. The surcharge was not disclosed to guests until they checked in or, in some cases, until they cheeked out and the charges appeared on their final bills. While the surcharge was removed for some guests who protested the fee, in other instances, the surcharge was not removed from guests’ bills. According to the amended complaint, one of Wyndham’s Florida properties entered into a contract with the Florida Department of State Records Management Services to provide rooms for a conference to be held by the Department of State. This contract did not disclose that the rooms contracted for would be charged an additional $2.75 energy surcharge. The guests’ bills, which included the contracted rate and the undisclosed surcharge, were then submitted to various state government agencies for payment.

At all times pertinent to the lawsuit, Teng was the chief operating officer and executive vice-president of Wyndham, Wagoner was the senior vice-president of hotel operations at Wyndham, McCleave was the vice-president of engineering at Wyndham, and Leh was the regional director of operations for the eastern region at Summerfield Suites by Wyndham. With respect to each of the individual ap-pellees, the amended complaint alleged that each had “directly participated in the deceptive acts and practices alleged ... and/or directed or controlled the deceptive or unfair practices and policies ... or had authority to control them, and had actual or constructive knowledge of the acts and practices complained of....” It more specifically alleged that Wagoner and McCleave directed Wyndham’s hotels to begin charging the energy surcharge of $2.50 per room per night, which was over and above the cost represented to consumers at the time they made their reservations. Leh was also alleged to have directed all Summerfield properties under her control to apply the energy surcharge immediately. The amended complaint was absent any specific allegations as to what, if any, wrongful acts Teng committed.

In support of their motion to dismiss on jurisdictional grounds, the individual ap-pellees each submitted affidavits stating that their actions relevant to this lawsuit were undertaken in their capacity as corporate employees, that none of the individual appellees ever charged or collected any energy surcharges, that none of them were residents of Florida, and that they had no contacts with Florida whatsoever outside of the course and scope of their employment with Wyndham. Leh also averred that she did not have the authority to develop or implement a policy that required hotels within her region to begin charging energy surcharges. In response, the Attorney General filed the affidavits of two of its employees with the trial court. The employees attached as exhibits to their affidavits copies of emails sent to Wyndham’s hotels in Florida by appellees McCleave, Leh, and Wagoner regarding the development and imposition of the surcharge.

The emails showed that the energy surcharge had first been initiated by Wagoner in an attempt to combat the energy crisis in California. Wagoner then sent an email to McCleave, asking him to devise plans to “roll out the energy surcharge in several more cities” and requesting that McCleave “take the lead on this.” In implementing the plan in Florida, Wagoner emailed several general managers, including one in Florida, informing them that McCleave was going to “champion” the implementation of the energy surcharge. McCleave subsequently sent an email to Wyndham hotels, including those in Florida, stating that a “flat rate” of $2.50 per day per room in all hotels would be easier to administer rather than applying different rates in different regions. After Wagoner agreed to the $2.50 surcharge, McCleave sent an email informing the hotels that, until tent cards were available to be placed at the front desks, signs should be placed in each room informing guests about the surcharge. In an email written by Leh, Leh explained that, while she was confused on the “energy surcharge directive,” it had been confirmed that all Summerfleld Suites would apply the charge immediately-

The trial court subsequently granted the individual appellees’ motion to dismiss, concluding that the complaint made no allegations that Teng performed any act that had an effect in Florida and that there was no allegation that would give rise to liability for Teng. With respect to the other three appellees, the trial court found no bases alleged for supporting jurisdiction over them within the scope of their employment. This appeal followed.

A trial court’s ruling on a motion to dismiss based on a question of law, such as a finding of the existence or lack of personal jurisdiction, is subject to de novo review. Execu-Tech Bus. Sys. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000); Ganiko v. Ganiko, 826 So.2d 391, 393 (Fla. 1st DCA 2002). The supreme court has set forth that:

In determining whether long-arm jurisdiction is appropriate in a given case, two inquiries must be made. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements.

Execu-Tech, 752 So.2d at 584. (quoting Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989)); Fla. R. Civ. P. 1.110(b). If Florida’s long-arm statute does not provide a basis for personal jurisdiction under the first statutory prong of this inquiry, the constitutional analysis is unnecessary. The plaintiff has the initial burden to plead the basis for personal jurisdiction under the long-arm statute. Venetian Salami, 554 So.2d at 502. The plaintiff may fulfill this requirement either by alleging the language of the statute in the complaint without pleading supporting facts or by alleging specific facts indicating that the defendant’s actions fit within one of the sections of Florida’s long-arm statute, section 48.193. Id. The defendant may then submit an affidavit contesting the allegations concerning jurisdiction, thereby shifting the burden back to the plaintiff to submit affidavits establishing the basis for jurisdiction. Id.

On appeal, the Attorney General argues that the trial court should have exercised long-arm jurisdiction over the individual appellees pursuant to section 48.193(l)(b) Florida Statutes (2001), which provides, in pertinent part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(b) Committing a tortious act within this state.

The Attorney General also contends that the corporate shield doctrine, which the trial court relied upon in granting the individual appellees’ motion to dismiss, is inapplicable to the case at bar.

In Doe v. Thompson, 620 So.2d 1004, 1006 (Fla.1993), the Florida Supreme Court quoted with approval the language used in Estabrook v. Wetmore, 129 N.H. 520, 529 A.2d 956, 959 (1987), which set forth that “[t]he rationale of the [corporate shield] doctrine is ‘the notion that it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer.’ ” However, the supreme court set forth that “[a] corporate officer committing fraud or other intentional misconduct can be subject to personal jurisdiction.... ” Doe, 620 So.2d at 1006 n. 1 (emphasis added) (citations omitted). In support of this proposition, the supreme court cited several opinions, one of which was Duke v. Young, 496 So.2d 37 (Ala.1986), wherein the court distinguished between “untarget-ed negligence” and “intentional tortious acts expressly aimed at the forum state.” Doe, 620 So.2d at 1006 n. 1. The Duke court concluded that a defendant could not rely upon the corporate shield doctrine in the latter situation. 496 So.2d at 40 (citing Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)).

In Calder, the respondent brought suit in California against the National Enquirer, Inc., a Florida corporation with its principal place of business in Florida, its local distributing company, and the petitioners, the author of the article at issue and his editor, for libel, invasion of privacy, and intentional infliction of emotional harm. 465 U.S. at 785, 104 S.Ct. 1482. In considering the petitioner’s motion to quash service of process, the superior court granted the motion and the California Court of Appeal reversed. Id. at 786, 104 S.Ct. 1482. In affirming, the Supreme Court rejected the application of the corporate shield doctrine and stated that the Enquirer’s employees:

are not charged with mere untargeted negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed at California. Petitioner South wrote and petitioner Calder edited an article that they knew would have a potentially devastating impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation .... [The employees] are correct that their contacts with California are not to be judged according to their employer’s activities there. On the other hand, their status as employees does not somehow insulate them from jurisdiction. Each defendant’s contacts with the forum State must be assessed individually. ... In this case, [the defendants] are primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper on that basis.

Id. at 789-90, 104 S.Ct. 1482.

In Allerton v. State, Department of Insurance, 635 So.2d 36, 39 (Fla. 1st DCA 1994), this Court held that the corporate shield doctrine was inapplicable because it had been alleged that the appellant committed the intentional torts of fraud, conspiracy to defraud, breach of fiduciary duty, and aiding and abetting a breach of fiduciary duty. In holding such, this Court relied upon Doe, Duke, and Calder. Id.

Similarly, in State v. Grodzinsky, 571 N.W.2d 1, 2 (Iowa 1997), the Iowa Supreme Court applied Colder to a situation in which the state of Iowa filed a petition alleging that two non-resident corporate officers had violated the state’s consumer fraud statutes by using the mail to perpetrate a series of deceptive practices that induced Iowa consumers to participate in a sweepstakes contest based upon the impression that an entrant was virtually assured to receive money. Id. More specifically, the petition alleged that the two officers were responsible for the “design, layout and writing of the prize promotions [the corporations] had marketed in Iowa.” Id. at 6. In concluding that the district court properly denied the defendants’ motion to dismiss and affirming, the Iowa Supreme Court held that the officers were subject to personal jurisdiction in Iowa because of their “ ‘primary participation] in an alleged wrongdoing intentionally directed at [Iowa] resident[s].’ ” Id. at 7 (quoting Colder, 465 U.S. at 790, 104 S.Ct. 1482).

In the instant case, the Attorney General alleged that the individual appel-lees violated FDUTPA, which provides that “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” § 501.204(1), Fla. Stat. (2001). It is the intent of the Legislature that, in construing section 501.204(1), “due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2001.” § 501.204(2), Fla. Stat. (2001). In F.T.C. v. Wilcox, 926 F.Supp. 1091, 1104 (S.D.Fla.1995), the district court, in citing F.T.C. v. Amy Travel Service, Inc., 875 F.2d 564, 573 (7th Cir.1989), held that, once corporate liability is established, individual defendants may also be held liable for consumer redress under the Federal Trade Commission Act if they participated directly in the deceptive practices or acts or they possessed the authority to control them. See, e.g., F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1170 (9th Cir.1997); F.T.C. v. Am. Standard Credit Sys., Inc., 874 F.Supp. 1080, 1087 (C.D.Cal.1994). These decisions are reflective of the purpose behind the Federal Trade Commission Act, which is to protect the public. See Regina Corp. v. F.T.C., 322 F.2d 765, 768 (3d Cir.1963) (citation omitted). As explained in Davis v. Powertel, Inc., 776 So.2d 971, 975 (Fla. 1st DCA 2000), FDUTPA “is designed to protect not only the rights of litigants, but also the rights of the consuming public at large.” When addressing a deceptive or unfair trade practice claim, the issue is not whether the plaintiff actually relied on the alleged practice, but whether the practice was likely to deceive a consumer acting reasonably in the same circumstances. Id. at 974. A deceptive or unfair trade practice constitutes a somewhat unique tortious act because, although it is similar to a claim of fraud, it is different in that, unlike fraud, a party asserting a deceptive trade practice claim need not show actual reliance on the representation or omission at issue. See id. at 973. Therefore, given the allegations raised in the amended complaint, the issue of whether the corporate shield doctrine insulates the individual ap-pellees from suit in Florida must be addressed on an individual basis. See Calder, 465 U.S. at 790, 104 S.Ct. 1482.

As to Wagoner and McCleave, the record infers that both men were the primary instigators of the energy surcharge. Although McCleave averred in his affidavit that he neither personally implemented nor authorized the charging or collecting of any fees at Florida hotels, and Wagoner averred in his affidavit that he did not personally collect any surcharge or receive any money as a result of the surcharges, the Attorney General’s counter-affidavits and attached emails establish that the energy surcharge was first initiated by Wagoner, who suggested that the surcharge be implemented in every California hotel. Wagoner subsequently sent an email to McCleave, asking him to devise a plan to “roll out the energy surcharge in several more cities.” Wagoner then emailed a general manager of a Florida hotel and others, informing them that McCleave was going to “champion” the surcharge. It was McCleave who, via an email to Wagoner, devised the plan to charge a fee of $2.50 per day per room in all Wyndham hotels, which Wagoner agreed to, because a uniform rate would be easier to administer. In implementing the plan, McCleave sent emails to numerous Wyndham hotels, including those in Florida, explaining how guests should be notified regarding the energy issue, i.e., via signs in the hotel rooms after guests had checked in until tent cards were available for the front desks. In other words, the surcharge was not disclosed to consumers when they reserved their rooms or entered into contracts for certain room rates. In some eases, the surcharge was not disclosed to guests until they checked out and the charge appeared on their final bills. Like the defendants in both Colder and Grod-zinsky, Wagoner and McCleave were the primary participants in an alleged deceptive and unfair trade practice intentionally directed at Florida residents. As such, neither individual may avail himself of the corporate shield doctrine and both are subject to jurisdiction in Florida. See Colder, 465 U.S. at 789-90, 104 S.Ct. 1482; Doe, 620 So.2d at 1006 n. 1; Allerton, 635 So.2d at 39; Grodzinsky, 571 N.W.2d at 7. Therefore, we reverse the trial court’s order to the extent it granted the motion to dismiss as to these appellees and remand for further proceedings.

With respect to Leh, the record is devoid of any evidence that she was a primary participant in the development or implementation of the energy surcharge in Florida. Leh’s unrefuted affidavit establishes that she did not have the authority to develop or implement a policy requiring hotels within her region to impose the surcharge. The record is also devoid of any evidence that Teng was a primary participant in the energy surcharge plan by actively participating in either the development or implementation of the plan. As such, we affirm the trial court’s order to the extent it granted the motion to dismiss as to Leh and Teng. Because the issue of whether the amended complaint failed to state a claim against Teng has been rendered moot by our affirmance on the jurisdictional issue, a discussion of this issue is unnecessary.

In determining whether personal jurisdiction over Wagoner and McCleave is proper, we must also consider whether the exercise of Florida’s long-arm jurisdiction constitutes a violation of due process. See Allerton, 635 So.2d at 40. The specific inquiry is whether Wagoner and McCleave “should reasonably have anticipated being haled into court” in Florida. See id. (quoting Venetian Salami Co., 554 So.2d at 500). “ ‘[T]he facts of each case must always be weighed’ in determining whether personal jurisdiction would comport with ‘fair play and substantial justice.’ ” Allerton, 635 So.2d at 40 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). “ ‘The quality and nature of an interstate transaction may sometimes be so random, fortuitous, or attenuated that it cannot fairly be said that the potential defendant should reasonably anticipate being haled into court in another jurisdiction.’ ” Allerton, 635 So.2d at 40 (quoting Burger King Corp., 471 U.S. at 486, 105 S.Ct. 2174).

Here, both Wagoner and McCleave allegedly engaged in intentional misconduct by developing and implementing a deceptive and unfair trade practice that was expressly aimed at Florida residents and had an adverse impact upon them. Because the effect of their actions was not so random, fortuitous, or attenuated that Wagoner and McCleave could not reasonably anticipate being haled into a Florida court, the exercise of personal jurisdiction over them comports with the requirements of due process. See Colder, 465 U.S. at 790, 104 S.Ct. 1482. Therefore, Wagoner and McCleave are subject to jurisdiction in Florida.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

ERVIN and ALLEN, JJ„ Concur.

      . The corporations have not challenged the trial court's exercise of jurisdiction over them. This appeal involves only the narrow issues of the trial court’s personal jurisdiction over the individual appellees and the dismissal of Teng on the additional ground of failure to state a cause of action.

      . Leh had left her employment with Wynd-ham at the time she executed her affidavit.


author: PALMER, J.

text:
    Joseph S. ELDER d/b/a Analogue Integrated, etc., Appellant, v. M. Didarul ISLAM, Appellee.
    Nos. 5D03-119, 5D03-792.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2004.
    John H. Bill of Godbold, Downing, Sheahan & Bill, P.A., Winter Park, for Appellant.

      Thomas R. Peppier of Stein, Sonnen-sehein, Hochman & Peppier, Oviedo, for Appellee.
   PALMER, J.

In this consolidated appeal, Joseph S. Elder d/b/a Analogue Integrated (“Elder”) appeals the final judgment entered in favor of M. Didarul Islam (“Islam”)(Case No. 5D03-119), and the final judgment awarding Islam attorney’s fees and costs (Case No. 5D03-792). Finding no error as to Case No. 5D03-119, we affirm. As to Case No. 5D03-792, we reverse the award of expert fees but affirm as to all other fee awards.

As to Case No. 5D03-119, we conclude that the trial court had sufficient evidence before it to support Islam’s claim for unpaid wages; specifically, his right to collect his royalties and right to exercise his stock options. However, as to Case No. 5D03-792, one attorney fee and two cost issues merit discussion.

First, we conclude that the trial court properly determined that Islam was entitled to receive an award of his reasonable attorney’s fees pursuant to section 448.08 of the Florida Statutes, because the royalty payments and stock options provided to him were “wages” within the meaning of the applicable prevailing party attorney’s fee statute:

448.08. Attorney’s fees for successful litigants in actions for unpaid wages
The court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney’s fee.

§ 448.08, Fla. Stat. (2000).

To that end, Islam alleged in his complaint that this action was for unpaid wages and that he was entitled to receive an award of attorney’s fees pursuant to section 448.08 of the Florida Statutes. Elder’s defense to that claim was based on the definition of the word “wages”, arguing that royalties and stock options aré not wages. • The trial court disagreed and we affirm that ruling.

In Coleman v. City of Hialeah, 525 So.2d 435 (Fla. 3d DCA 1988), the Third District explained the definition of the word “wages” as follows:

Florida courts have held that the prevailing party in an action to recover unpaid periodic salary, [footnote omitted] unpaid sales commissions, [footnote omitted] an unpaid bonus, [footnote omitted] or unpaid severance pay [footnote omitted] — all allegedly due under a contract of employment for services rendered — is entitled to an award of attorney’s fees under the above statute. In so doing, Florida courts have looked to the following definitions of “wages” as persuasive in interpreting the above statute, inasmuch as chapter 448 of the Florida Statutes (1985) contains no such definition: “ ‘Wages’ means and includes all compensation paid by an employer or his agent for the performance of service by an employee, including the cash value of all compensation paid in any medium other than cash.” [footnote omitted] “ ‘[A]ll remuneration for employment, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash.’ ” [footnote omitted]. “Wages. A compensation given to a hired person for his or her services. Compensation of employees based on time worked or output of production. Every form of remuneration payable for a given -period to an individual for personal services, including salaries, commissions, vacation pay, dismissal wages, bonuses, and reasonable value of board, rent, lodging, payments in kind, tips, and any other similar advantage received from the individual’s employer or directly with respect to work for him. (citation omitted). Term should be broadly defined and includes not only periodic monetary earnings but all compensation for services rendered without regard to manner in which such compensation is computed.” Black’s Law Dictionary 1416 (5th ed.1979), followed in Ferry v. XRG Int'l Inc., 492 So.2d 1101, 1103 (Fla. 4th DCA 1986), and Gulf Solar, Inc. v. Westfall, 447 So.2d 363, 366-67 (Fla. 2d DCA 1984). Central to these definitions and the results reached in the above cases is that the term “wages” involves some compensation paid to an employee for services rendered to his employer. Broadly read, this definition embraces salaries, commissions, bonuses, vacation pay, and severance pay.

Id. At 437. Other Florida courts have addressed several types of compensation other than salary and found them to be “unpaid wages” within the meaning of the statute. See Strasser v. City of Jacksonville, 655 So.2d 234 (Fla. 1st DCA-1995) (relating to annual leave credits and vacation pay); D.G.D., Inc. v. Berkowitz, 605 So.2d 496 (Fla. 3d DCA 1992)(relating to unpaid commissions); Woods v. United Indus. Corp., 596 So.2d 801 (Fla. 1st DCA 1992)(relating to severance pay). Based upon the facts of the instant case and the relevant case law, we find no error in the trial court’s conclusion that the stock options and royalties referred to in Islam’s “Compensation Package” were part of Islam’s wages. Therefore, Islam was entitled to receive an award of attorney’s fees and costs under section 448.08 of the Florida Statutes.

Next, Elder challenges the trial court’s award of costs, claiming the trial court abused its discretion by failing to properly construe the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions by, among other things, awarding Islam (1) $5,000.00 in expert witness fees; and, (2) $425.00 in mediation costs.

As to the expert witness fees, Islam’s counsel testified that his expert charged Islam a $2,000.00 retainer and an additional $3,000.00 for a total of $5,000.00. Upon questioning by the trial court, Islam’s counsel responded that he could not remember how the fees were broken down.

This issue is governed by Stewart & Stevenson Services, Inc. v. Westchester Fire Ins. Co., 804 So.2d 584 (Fla. 5th DCA 2002), wherein this court held that a lack of specificity precluded affirmance of a cost judgment.

S & S’s final argument is that, by awarding a $12,000.00 expert fee, the trial court abused its discretion in awarding costs outside the parameters of the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. The trial court’s order does not indicate how it determined the $12,000.00 figure and its determination is not evident from the evidence in the record. Issues were raised about the expert’s reasonable hourly fee, whether paralegal work should be compensated, the reasonable number of hours billed by the expert, and whether certain costs of the expert were included in his fee. Given the lack of specificity provided in the cost judgment as to the expert’s fee, we cannot effectively review it on appeal. With regard to the expert attorney fees awarded in this case, the same findings should be provided by the court as are required for the award of a party’s attorney fees, including the reasonable number of hours expended, the reasonable hourly rate, and any other components which make up any part of the fee. See Simpson v. Simpson, 780 So.2d 985 (Fla. 5th DCA 2001).

Id. at 589.

Based upon the law as expressed in Stewart, Islam was required to provide evidence as to the breakdown of the expert’s fee before the trial court could properly award same. Because he failed to do so (and he is not entitled to receive a second evidentiary hearing to do so), the cost judgment is reversed as to this item.

Finally, Elder maintains that the trial court erred in awarding Islam his pro rata share of mediation costs in this matter. Elder argues that although mediation was mandated by court order, Islam failed to cite any authority for taxing this cost, and the court did not cite a reason for awarding same.

The Florida legislature has not yet defined “costs” as including mediation expenses. However, the case law in Florida holds that the costs of mediation can be awarded if the parties are required to mediate under a statute or court rule. See Orlando Regional Medical Center, Inc. v. Chmielewski, 573 So.2d 876 (Fla. 5th DCA 1990) rev. denied, 583 So.2d 1034 (Fla.1991)(holding that the expenses of mediation are recoverable as costs when the parties are required to submit to mediation under any statute or court rule).

Here, in awarding the mediation fees the trial court stated as follows:

Mediation. Well that’s part of it. It’s required by the court. And if they had to expend that — I just don’t think that you have to sue for your employee’s wages and then have to pay to sue for it. So I’m finding that they are entitled to all of it.

(Emphasis added). We agree with the trial court’s reasoning and affirm the award of mediation fees as a taxable cost.

In closing we note that, since the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions do not currently address mediation costs in any way, we would encourage the drafters thereof to address this issue to avoid these disputes in the future.

As to Case No. 5D03-119, AFFIRMED. As to 5D03-792, AFFIRMED in part and REVERSED in part.

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

      . See Simpson v. Simpson, 780 So.2d 985 (Fla. 5th DCA 2001).


text:
    Terry A. GAINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3992.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.
    Rehearing Denied April 12, 2004.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charles J. Crist, Jr., Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, Attorneys for Appel-lee.
   PER CURIAM.

Appellant challenges his convictions and sentences for two counts of kidnapping and one count of robbery with a weapon. We affirm Appellant’s convictions for kidnapping without discussion.

However, regarding Appellant’s conviction for robbery with a weapon, the State failed to prove that the drill, which was covered with a bandana, was used as a weapon in a manner likely to cause death or great bodily harm. The record contains no evidence that Appellant made any threatening motion toward the victims with the drill and never verbally threatened to shoot or harm them. Appellant also never threatened to use the drill as a bludgeon or other type of weapon. See Prosser v. State, 742 So.2d 400 (Fla. 1st DCA 1999) (reversing conviction for armed robbery where there was no evidence that defendant used shrouded object in threatening manner or used object as a bludgeon); Butler v. State, 602 So.2d at 1306 (reversing conviction for armed robbery where defendant never used object as a bludgeon or threatened to use the object as a gun); see also Bates v. State, 561 So.2d 1341 (Fla. 2d DCA 1990) (reversing conviction for robbery with a deadly weapon where defendant carried a “nut driver” underneath a rag and did not use or threaten to use the object in a violent way).

Because the evidence was legally insufficient to establish that Appellant carried a “weapon” during the robbery, we reverse his conviction for robbery with a weapon and remand for entry of a judgment of unarmed robbery pursuant to section 812.13(2)(c), Florida Statutes (2001), and to resentence Appellant in accordance with that judgment.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Jeremiah Martel RODGERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D00-0748.
    District Court of Appeal of Florida, First District.
    March 1, 2004.
    Mark E. Olive, Esq. and Amanda Re-gan-Worl, Esq. of the Law Office of Mark E. Olive, P.A., Tallahassee, for Appellant.

      Charlie Crist, Attorney General; Curtis M. French, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Jeremiah Martel Rodgers, appeals his convictions and sentences and argues that the trial judge erred in denying his motion to disqualify. Upon careful review of the record, we conclude that a reasonably prudent person, faced with the facts of this case, would be placed in fear of not receiving a fair and impartial trial before the trial judge. See Livingston v. State, 858 So.2d 353, 354 (Fla. 1st DCA 2003) (holding that the question of whether a trial judge erred in denying a motion to disqualify is whether a reasonably prudent person, faced with the facts of the case, would be put in fear of not receiving a fair and impartial trial before the presiding judge); see also Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983) (“[A] party seeking to disqualify a judge need only show ‘a well grounded fear that he will not receive a fair trial at the hands of the judge.’ ”) (quoting State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697-98 (1938)); Levine v. State, 650 So.2d 666, 667 (Fla. 4th DCA 1995).

REVERSED and REMANDED for a new trial.

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Robert ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-4290.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.
    Rehearing Denied April 27, 2004.
    Robert Robinson, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for respondent.
   ON MOTION FOR REHEARING

We grant the State’s motion for rehearing and vacate our opinion of January 28, 2004. Based upon the facts of this case, we deny the petition alleging ineffective assistance of appellate counsel. See Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003).

STONE, HAZOURI and MAY, JJ., concur.


text:
    Richard BOURNE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-317.
    District Court of Appeal of Florida, First District.
    March 4, 2004.
    Rehearing Denied April 12, 2004.
    James T. Miller, Esquire, Jacksonville, for Appellant.
    Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Richard Bourne appeals from the trial court’s order revoking his probation, arguing that because the evidence was insufficient to support the findings of violations and because some of the offenses for which the trial court found appellant in violation were not alleged in the charging affidavit, the revocation of his probation should be reversed. While we agree that the trial court erred in some respects, there were sufficient remaining grounds upon which to revoke appellant’s probation. We, therefore, affirm the revocation of appellant’s probation, and remand for modification of the trial court’s order revoking appellant’s probation in light of the errors discussed below.

Offenses not Alleged in the Charging Affidavit

The affidavits charging appellant with violating his probation alleged that he was arrested for disorderly intoxication after an incident at a local Publix supermarket on April 8, 2002, received citations for failure to change his address on his drivers license, having no proof of car insurance, and possessing/displaying a FOP insignia on May 22, 2002, and received citations for careless driving and leaving the scene of an accident resulting in injury on June 18, 2002. After a hearing, the trial court found that appellant committed the offenses of careless driving and disorderly conduct on April 8, 2002, the offense of resisting arrest with and without violence on April 8, 2002, and the offenses of leaving the scene of an accident resulting in injury and leaving the scene of an accident involving property damage on May 22, 2002. Based upon these offenses, the trial court found that appellant -wilfully and substantially violated his probation. Therefore, the trial court revoked appellant’s probation.

An affidavit upon which a revocation is based must set forth the basic facts of the alleged violations. See Perkins v. State, 842 So.2d 275, 277 (Fla. 1st DCA 2003). Thus, revoking a defendant’s probation based upon a violation that was not charged is error. See Perkins, 842 So.2d at 277; LeMaster v. State, 765 So.2d 259, 260 (Fla. 1st DCA 2000). In the instant case, the affidavit charging appellant with violations of his probation did not allege that appellant committed or was cited for careless driving on April 8, 2002, committed or was charged with resisting arrest with or without violence, or committed or was charged with leaving the scene of an accident involving property damage. Therefore, the trial court erred in finding appellant in violation of his probation for these offenses. The trial court is directed on remand to modify its order accordingly.

Conclusion

While the trial court erred in some respects, there are sufficient valid grounds remaining upon which the trial court could have revoked appellant’s probation, namely disorderly intoxication and leaving the scene of an accident involving injury. Therefore, the revocation of appellant’s probation is affirmed, and this case is remanded to the trial court with directions to strike the findings of violation for careless driving, resisting arrest with and without violence, and leaving the scene of an accident involving property damage only. See Burse v. State, 724 So.2d 596, 598 (Fla. 2d DCA 1998) (affirming a revocation of probation and remanding for the trial court to strike the improper findings of violation).

AFFIRMED and REMANDED with directions.

WOLF, C.J.; PADOVANO and POLSTON, JJ., concur.

      . The State argues that the trial court’s finding that appellant violated his probation by leaving the scene of a traffic accident involving property damage was permissible because leaving the scene of an accident involving property damage only, in violation of section 316.061, Florida Statutes (2002), is a lessor included offense of leaving the scene of an accident involving injury, in violation of section 316,027 (2002). The trial court did not, however, find that appellant committed a lesser offense. Rather, it found that appellant committed both offenses. This cannot be so. See Peterson v. State, 775 So.2d 376, 377-78 (Fla. 4th DCA 2000) (holding that convictions for both leaving the scene of an accident involving injury and leaving the scene of an accident involving property damage only were inconsistent and, therefore, could not be sustained).

      . The Appellant also argues that the trial court erred in finding that the Appellant violated his probation by committing disorderly conduct because the offense of disorderly conduct was not charged. However, it appears based on the record of the violation and sentencing hearings that the finding of disorderly "conduct,” rather than disorderly intoxication, was merely a scrivener’s error. Appellant did not seek to have this error corrected below. On remand, the trial court should correct this scrivener's error. See Jackson v. State, 2003 WL 23094600, at *1, 870 So.2d 135, 135 (Fla. 2d DCA Dec. 31, 2003).


text:
    George HUFF, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3970.
    District Court of Appeal of Florida, First District.
    March 4, 2004.
    George Huff, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of the appellant’s postconviction claims. We write only to address the appellant’s claim that his counsel was ineffective for failing to object when the trial court read the forcible felony instruction to the jury. Upon a full review of the record, we conclude that, in this case, the trial court’s inclusion of the forcible felony instruction within the overall body of instruction on self-defense was not misleading or confusing and did not deprive the appellant of his defense of self-defense. See Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002). Accordingly, the trial court’s summary denial is AFFIRMED.

DAVIS, VAN NORTWICK and HAWKES, JJ., concur.


author: THOMPSON, J.

text:
    LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, etc., Appellant, v. GREATER ORLANDO AVIATION AUTHORITY, Appellee.
    No. 5D02-3116.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.

      Tobe Lev of Egan, Lev & Siwiea, P.A., Orlando, for Appellant.
    Keith F. White of Keith F. White, P.A., and Kimberly Doud of Broad & Cassel, Orlando, for Appellee.
   THOMPSON, J.

Laborers’ International Union of North America, Local 678 (“Local 678”) appeals an order by the Public Employees Relations Commission (“PERC”) affirming the General Counsel’s summary dismissal of an unfair labor practice charge. We affirm.

Pursuant to 14 Code of Federal Regulations sections 107.209 and 108.229, the Greater Orlando Aviation Authority (“GOAA”) notified its employees that they must inform GOAA if they had pleaded nolo contendere to any disqualifying offense, or if adjudication on a disqualifying offense had been withheld. Employees making such a disclosure would no longer have an access badge or access to secured areas, and were effectively terminated because all employees were required to have an access badge to maintain their employment. Previously, GOAA employees were denied access to secured areas only if they had been convicted of a disqualifying offense or found not guilty by reason of insanity. Local 678, the bargaining agent for a unit of GOAA’s employees, filed an unfair labor practice charge pursuant to section 447.501(l)(a) and (c), Florida Statutes, alleging that GOAA unilaterally changed the working conditions of the bargaining unit employees. In its amended complaint, Local 678 named K.J. as an employee who was terminated under the new policy and argued that GOAA’s policy exceeded the federal requirements set forth in Code of Federal Regulations section 107.209 because the federal regulations stated that an individual had a disqualifying criminal offense only if that individual had been convicted or found not guilty by reason of insanity.

In dismissing the charge, the General Counsel for PERC found that K.J. was dismissed for other offenses, including falsification of documents. Also, the General Counsel determined that Local 678 did not request impact bargaining. The General Counsel noted that 14 Code of Federal Regulations, sections 107.209 and 108.229, and the Aviation and Transportation Security Act were created because of concern for airport security in light of terrorist acts and that although the federal regulations did not specifically require the disclosure of pleas of nolo contendere or withheld adjudications, the purpose of the regulations was to insure the highest measure of public safety.

Local 678 appealed the General Counsel’s summary dismissal. PERC affirmed the summary dismissal under Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 609 So.2d 31 (Fla.1992), which held that an employer can make unilateral changes to mandatory subjects of bargaining where there are exigent circumstances such as public safety. PERC held that under GOAA’s management rights, GOAA was permitted to unilaterally impose stricter requirements upon employees’ access to restricted areas of the airport. PERC further ruled that unlike the employer in Fraternal Order of Police, GOAA’s duty to impact bargain was not excused. In Fraternal Order of Police, the duty to impact bargain was excused by the immediate need to act, but PERC ruled GOAA was not similarly excused because the revised safety regulations that GOAA relied upon as the basis for implementing the change in its employee access policy were not published until three months after September 11, 2001. However, PERC determined that dismissal was appropriate because Local 678 failed to allege that it requested and was refused an opportunity to impact bargain, and failed to identify negotiable effects resulting from implementation of the employer’s underlying decision.

Here, Local 678 argues that a unilateral change in policy was not justified by exigent circumstances. We disagree. First, we note that PERC’s decisions are entitled to great deference by the courts due to its enlightened experience in such matters. International Union of Police Associations v. State Dep’t of Management Services, 855 So.2d 76 (Fla. 1st DCA 2003). PERC has developed special expertise in addressing labor issues and is uniquely qualified to interpret and apply the policies enunciated in Chapter 447. School Bd. of Dade County v. Dade Teachers Ass’n, 421 So.2d 645 (Fla. 3d DCA 1982). Thus, “it is not our province to displace [PERC’s] choice between two conflicting views simply because we would have been justified in deciding the issue differently were it before us in the first instance.” City of Clearwater (Fire Dept.) v. Lewis, 404 So.2d 1156 (Fla. 2d DCA 1981).

Second, we conclude that exigent circumstances similar to those in Fraternal Order of Police, existed in this case. In Fraternal Order of Police, the Florida Supreme Court held that compulsory drug testing of police officers was not a mandatory subject of collective bargaining where individuals were suspected of misconduct. 609 So.2d at 34. The court held that an employer could act unilaterally where mandatory bargaining was usually required when there was an overriding need to protect the public. Id. In the instant case, as in Fraternal Order of Police, there is an overriding need for GOAA to protect the public. As 66 Federal Register, section 63474-01, states, in connection with the airline attacks of September 11th, “[gjiven the resources and reach of the organization [that perpetrated the attacks], it is likely that it has sought or will seek to place members in positions at airports to facilitate future attacks, or that it will attempt to co-opt individuals in such positions.” Because GOAA’s employees are entrusted with public safety, and all GOAA employees must have access to all secured areas, exigent circumstances warranted a unilateral decision by GOAA.

Furthermore, we agree with PERC that GOAA was permitted to impose stricter requirements pursuant to its management rights. Section 3.1 of the bargaining agreement between GOAA and Local 678 states that management rights are “to demote, layoff, terminate or otherwise relieve employees for lack of work or other legitimate reasons; to suspend, discharge, or discipline employees for just cause.” Also, section 3.5 of the agreement states, “The Unions and its members in all matters pertaining to this Agreement shall take into consideration that one of the important missions of the Authority is to serve the public and that safety, protection and good will of the general public are of primary importance.” Moreover, section 1.1 of the agreement states that one of the purposes of the agreement is for GOAA to provide services which will “further, to the fullest extent possible, the safety of the employees [and the] ... protection of property.” Finally, the Greater Orlando Aviation Authority Act, 98^92, Florida Laws, provides:

The purposes of this act are to create an aviation in Orange County, Florida, and through it to provide a means to serve the public interest through the coordination of the planning, financing, construction and operation of aviation facilities of the authority to the end that: adequate public air navigation and transportation facilities are provided; that safe and efficient air commerce is promoted ....

(emphasis added).

“[t]he authority shall have all the powers which are necessary to carry out the purposes of this act. Without any manner limiting or restricting such general powers, the authority shall have power:
12) To adopt and enforce in the courts of this state reasonable rules and regulations for the orderly, safe, efficient, and sanitary operation and use of projects and facilities owned by it or under its control.”

Given that the purpose and mission of GOAA is to provide public safety and promote safe and efficient air commerce, GOAA was justified in acting unilaterally in this case.

Finally, we agree with PERC’s conclusion that Local 678 had a duty to request impact bargaining and to identify a bargainable impact. See Volusia County Firefighters’ Association, Local 3571 v. Volusia County, 22 FPER ¶ 27066 (1996). Local 678’s complaint referred to only one employee who was discharged as a result of the new policy. The record indicates that K.J. was discharged not only for pleading no contest to a disqualifying offense, conspiracy to sell and deliver cocaine, but for other misconduct as well. Local 678 failed to provide evidence of impact upon the rest of the employees. Accordingly, Local 678 failed to establish direct and substantial effects upon the terms and conditions of employment due to GOAA’s implementation of the new policy. Compare Cocoa Beach Professional Firefighters, Local 3570 v. City of Cocoa Beach, 23 FPER ¶ 28082 (citing Hillsbor-ough Classroom Teachers Association, Inc. v. School Board of Hillsborough County, 7 FPER ¶ 12411).

PERC’s decision is AFFIRMED.

GRIFFIN, J., and HOLCOMB, C., Associate Judge, concur.

      . Under 14 Code of Federal Regulations, section 107.209, persons who disclose that they were convicted or found not guilty by reason of insanity of a disqualifying offense, the airport operator must immediately suspend the individual’s unescorted access authority for airport operations.

      . An individual has a disqualifying criminal offense if the individual has been convicted, or found not guilty by reason of insanity, of any of the disqualifying crimes listed in this paragraph in any jurisdiction during the 10 years before the date of the individual’s application for unescorted access authority, or while the individual has unescorted access authority.
      14 C.F.R. § 107.209(d).

      . Section 447.501(1), Florida Statutes, provides that [pjublic employers or their agents or representatives are prohibited from:
      (a) [ijnterfering with, restraining or coercing public employees in the exercise of any rights guaranteed them under this part.

      (c) [Refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit.

      . See Pub.L. No. 107-71


text:
    Charles O. DAVIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2337.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.
    Rehearing Denied April 16, 2004.
    Charles O. Davis, Jr., Sanderson, pro se.
    No Appearance for Appellee.
   THOMPSON, J.

Appellant, Charles O. Davis, Jr., appeals the summary denial of his rule 3.850 motion challenging his conviction and sentence for aggravated battery of a person 65 years or older. The conviction and sentence were affirmed in Davis v. State, 812 So.2d 428 (Fla. 5th DCA 2002).

Davis contends that his trial counsel was ineffective. As explained in Jones v. State, 845 So.2d 55, 65 (Fla.2003), to establish ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient, because it fell below the objective standard of reasonableness based on prevailing norms, and that the defendant was prejudiced, as there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. To be entitled to an evidentiary hearing on a claim of ineffective assistance of counsel, a defendant must allege specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency which prejudiced the defendant. Mere conclusory allegations are insufficient. Id.

We agree with the trial court that Davis failed to meet this standard and make the necessary allegations to show either a deficiency or prejudice. However, as to ground seven, in which Davis alleged that counsel failed to investigate two witnesses who could have testified about another possible suspect, we affirm the denial of this claim without prejudice to Davis’s filing a facially sufficient motion which includes the allegation that the witnesses in question were available to testify, if that is the case. See Blanca v. State, 830 So.2d 260 (Fla. 5th DCA 2002).

AFFIRMED.

PETERSON and TORPY, JJ. concur.


text:
    Robert M. GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-410.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2004.
    Rehearing Denied April 8, 2004.
    Robert M. Gray, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AEFIRMED. See Gray v. State, 831 So.2d 202 (Fla. 5th DCA 2002).

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


text:
    Michael A. FULLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-490.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2004.
    Rehearing Denied April 6, 2004.
    Michael A. Fuller, Avon Park, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Siegel v. State, 586 So.2d 1341 (Fla. 5th DCA 1991).

PLEUS, ORFINGER and MONACO, JJ., concur.


author: POLEN, J. GUNTHER, J.,

text:
    Gabriel MORAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3911.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Rehearing Denied April 30, 2004.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises from a charge of Attempted First Degree Murder in a charging document that failed to allege premeditation. The defendant was ultimately convicted of attempted second degree murder. For the reasons explained fully below, we hold that any error has been rendered moot by the jury verdict. We affirm the conviction.

On May 15, 2000 at about 3:00 a.m., Betzaida Lopez was walking home from a bar with her family and friends after having just been in a verbal confrontation with the defendant Gabriel Moran and two other gentlemen. Lopez was about ten feet ahead of the rest of the group when a friend noticed an accelerating car approaching. The car, driven by Moran, hit Lopez, causing severe injury.

Moran was charged by information with attempted first degree murder with a deadly weapon and leaving the scene of a crash involving injury. The information, as to count I, read as follows:

[Clharges that GABRIEL CELESTI-NO MORAN on or about May 15, 2000, in the county of Palm Beach and State of Florida, did unlawfully attempt to commit FIRST DEGREE MURDER, an offense prohibited by law, and in such attempt did an act toward the commission of such offense by driving a motor vehicle at or in the direction of Betzaida LOPEZ and did strike BETZAIDA LOPEZ causing severe injuries, but GABRIEL CELESTINO MORAN failed in the perpetration or was intercepted or prevented in the execution of said offense, contrary to 'Florida Statutes 777.04(1) and 775E and 775.087(1).(LIFE FEL)

The case went to a jury. After the State rested, defense moved for a judgment of acquittal arguing, inter alia, that the information failed to allege premeditation and failed to specifically reference the First Degree Murder statute. The motion was denied. The jury found Moran guilty, as to count I, of the lesser included offense of Attempted Second Degree Murder and guilty of count II, leaving the scene of a crash involving personal injury.

On appeal, Moran asserts the trial court erred in denying his motion for judgment of acquittal because the information was fundamentally deficient. We need not reach the merits of this argument due to the jury having found Moran guilty of Attempted Second Degree Murder, not First.

The case law relied upon by Moran teaches that a defendant cannot be convicted of a charge not properly charged in the charging document. See, e.g., State v. Gray, 435 So.2d 816 (Fla.1983). Here, Moran complains that the charging document did not adequately charge Attempted First Degree Murder. However, he was convicted of Attempted Second Degree Murder. As a result, he was not convicted of a crime that was improperly charged.

We are compelled to point out that the state ought to have avoided this issue by correctly charging the crime in the first instance. At the very least, after the motion for judgment of acquittal was made, the state should have sought to amend the charging document.

For these reasons we affirm the decision of the trial court.

TAYLOR, J., concurs.

GUNTHER, J., dissents with opinion.

GUNTHER, J.,

dissenting.

I respectfully dissent.

I disagree with the majority’s conclusion that the merits of this case do not need to be reached because of mootness. Additionally, I conclude that the charging document in this case, which both fails to cite the statutory basis for the alleged crime and to address all the elements of the alleged crime, is not a mere technical deficiency. As a result, I would reverse Moran’s conviction for attempted second degree murder.

Cases indicate that although technically deficient, an information may withstand a deficiency challenge in two circumstances: (1) where a statutory citation for the crime is given, but all elements are not properly charged and (2) where the wrong (or presumably no) statutory citation is given, but all elements of the crime are properly charged. See, e.g., Fulcher v. State, 766 So.2d 243 (Fla. 4th DCA 2000) (as an example of the first circumstance); McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002) (as an example of the second circumstance). In the case at bar, neither circumstance exists.

At issue in this case is the portion of the information that charges Moran with the crime of First Degree Murder, but neither cites the applicable statute nor properly charges all the elements of First Degree Murder. Missing from the information is the statutory citation to Florida Statutes section 782.04 and any reference to the element of premeditation. The State asserts that the information adequately charges Moran with attempted first degree murder with a deadly weapon.

Naming the crime as First Degree Murder in the charging document, in conjunction with presenting evidence and instructing the jury on premeditation, was simply not adequate to place Moran on sufficient notice of the crime charged. If it were, the State will be permitted in the future to simply name the crime without reference to the statutory citation or the elements of the crime and then cure this defect during trial by presenting evidence as to the precise elements of the specific crime and by securing a jury charge that instructs on the uncharged elements. In my view, this would prove detrimental to proper notice and trial preparation. This would be particularly true in cases involving offenses of multiple varieties. For example, there are several types and degrees of battery. See, e.g., Chs. 784, 794, Fla. Stat. (2003). Therefore, including just the word “Battery” in the information without statutory citation and a recitation of the elements would be insufficient to place the defendant on notice of the crime charged.

This is not to say that I do not recognize the concern about a defendant being able to lie in wait and spring a challenge to a defective charging instrument on the State only after a conviction is achieved. See Fulcher, 766 So.2d at 243. But in this case, Moran can meet the heightened burden for relief during the later stages of a case which requires that the information be so fundamentally defective as to not support a conviction. See Ford v. State, 802 So.2d 1121, 1130 (Fla.2001). Moran can meet this burden because the information does not charge a crime under Florida law as it fails to cite a statute or set out the elements of a crime. One logically cannot be convicted of a crime that is not charged. Furthermore, being properly charged is a constitutional right for reasons of due process. See State v. Gray, 435 So.2d 816, 818 (Fla.1983). As such, it is not too much to expect the State to carefully prepare a charging document including either a statutory citation or all elements of the crime, and preferably both. This is not an undue burden when justice and liberty hang in the balance.

Having reached this conclusion, I briefly address the majority’s contention that a determination of error on these merits is rendered moot by the jury verdict of attempted second degree murder. The majority cites no authority in support of this proposition. Moreover, there is no explanation or analysis indicating how the majority reached this conclusion. Furthermore, the jury’s verdict does not alter the fact that the information was constitutionally defective in the first instance and that the trial court erred by denying a directed verdict on this ground. Because a defect in an information has been recognized to be fundamental error, the outcome of the trial cannot cure the affront to Moran’s rights. See Gray, 435 So.2d at 818; Sanford v. Rubin, 237 So.2d 134 (Fla.1970); Johnson v. State, 833 So.2d 252, 255 (Fla. 4th DCA 2002) (stating that an error significant enough to be considered fundamental cannot be harmless); Campbell v. State, 671 So.2d 876 (Fla. 4th DCA 1996).

In sum, I would reverse the denial of the judgment of acquittal.


text:
    Brian DONGILLI, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4703.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Brian Dongilli, Sanderson, pro se.
    No appearance required for appellee.
   PER CURIAM.

We vacate our previously issued opinion and mandate and substitute the following in its place.

AFFIRMED.

WARNER, POLEN and TAYLOR, JJ., concur.


author: TORPY, J.

text:
    R.G., Father of R.G., Jr., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-2097.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.
    Rehearing Denied April 16, 2004.

      Helen N. Silva, Sanford, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   TORPY, J.

Appellant challenges the trial court’s order terminating his parental rights as to R.G., Jr. The sole issue on appeal is whether the trial court erred in denying Appellant’s Motion in Limine, which sought to exclude the contents of a confession made by him to police wherein he acknowledged that he had sexually abused R.G., Jr. Appellant urges error based on three grounds, each of which we conclude to be without merit.

First, Appellant argues that his confession was obtained in violation of the Fifth Amendment to the United States Constitution because he was not warned by police of his right to remain silent and right to counsel in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Even assuming a violation of Miranda, however, we agree with Appellee that Miranda and its progeny do not apply to exclude confessions offered as evidence in civil proceedings of this nature. As stated by Professor LaFave in his treatise on criminal procedure:

Because Miranda -is grounded in the Fifth Amendment privilege against self-incrimination, this presents a question of exactly what constitutes incrimination within the meaning of the Amendment. As a general matter, this constitutional provision itself supplies the answer, for it declares that no person “shall be compelled in any criminal ease to be a witness against himself.” This most certainly means, as occurred in Miranda, that an improperly obtained confession is subject to suppression when offered in a criminal trial as evidence of defendant’s guilt of the crime charged.

Wayne R. LaFave, et al., Criminal Procedure § 6.10(e), at 625-26 (2d ed.1999). Accord, In re Pittman, 149 N.C.App. 756, 561 S.E.2d 560, 564 (2002) (Miranda inapplicable because juvenile abuse and neglect proceeding is civil in nature); In re J.Y., 2000 PA Super 169, 754 A.2d 5 (2000) (Miranda protections do not extend to juvenile dependency proceedings). See also, News-Journal Corp. v. Carson, 741 So.2d 572, 575 (Fla. 5th DCA 1999) (in civil rather than criminal proceeding, Fifth and Sixth Amendment due process principles not involved).

Appellant’s second contention is that the trial court was required to exclude the confession under the doctrine of res judicata because the criminal trial judge had suppressed the confession, having found that the confession was given involuntarily. We disagree. The requisite four “identities” to implicate the doctrine of res judicata are lacking here. Therefore, the doctrine does not apply. See Gold v. Bankier, 840 So.2d 395 (Fla. 4th DCA 2003).

Appellant’s final contention is that the trial court erred in relying upon his confession because it was not given voluntarily. In a criminal proceeding, the question of whether a confession is involuntary requires the trial judge to make a threshold determination of whether the confession may be considered by the trier of fact. This is true because of the constitutional protections afforded to citizens charged with crimes. In re Simpson, 126 Misc.2d 162, 481 N.Y.S.2d 293, 296 (N.Y.Fam.Ct.l984)(“The constitutional law of confessions mandates procedures that ‘insure a reliable and clear-cut determination of the voluntariness of the confession’ by ‘the trial judge, another judge, or another jury, but not the convicting jury,’ [Jackson v. Denno,] 378 U.S. [368] at 391 n. 19, 84 S.Ct. at 1788, 12 L.Ed.2d 908”). In a civil proceeding, however, once the authenticity and relevance of the confession are established, the confession is admissible. Thereafter, the burden falls upon the party who confessed to demonstrate that the confession is unreliable because it was involuntary. The ultimate resolution of this issue is one of fact for the trier of fact. As observed by Professor Chadbourn:

Since admissions are never conclusive, but may always be explained away and discredited by their maker as due to his inadvertence or mistake, ... there is no necessity for an exclusionary rule based on the theory of duress. All analogies suggest that the party’s admission be received, subject to his proof of the threats or other circumstances of duress which may have extorted it. It would follow, then, that in a civil case the admissions of an opponent, when offered, are not to be tested or excluded by any rules of confession applicable to the. accused in a criminal case.

3 John H. Wigmore, Evidence in Trials at Common Law §815 (Chadbourn rev. 1970). Accord, Terpstra v. Niagara Fire Ins. Co., 26 N.Y.2d 70, 308 N.Y.S.2d 378, 256 N.E.2d 536 (N.Y.1970) (question of whether confession was involuntary is for jury in civil case; burden is on the party who made confession).

Here, the trial judge viewed the videotaped confession and concluded that Appellant’s statements were voluntarily given. No other evidence was offered on this issue. We conclude' that the trial court’s finding is supported by substantial competent evidence and should not be disturbed.

AFFIRMED.

SHARP, W., and MONACO, JJ., concur.