author: STEVENSON, J.

text:
    TURNER GREENBERG ASSOCIATES, INC., Appellant, v. Wayne M. PATHMAN, on behalf of himself and all others similarly situated, Appellee.
    No. 4D03-2957.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.

      Robert Zarco and Robert M. Einhorn of Zarco Einhorn & Salkowski, P.A., Miami, for appellant.
    C. Oliver Burt, III, Anne F. Jacobs and Manuel J. Dominguez of Berman DeValer-io Pease Tabacco Burt & Pucillo, West Palm Beach, for appellee.
   STEVENSON, J.

Appellee Wayne M. Pathman filed a would-be class action against Turner Greenberg Associates, Inc. (hereinafter “TGA”), a high-end furniture retailer, alleging that the company was making undisclosed profits on shipping charges in violation of Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA). TGA appeals the order of the trial court granting Pathman’s motion for class certification, challenging virtually every aspect of the ruling. We affirm.

The Lawsuit Initiated by Pathman

In the amended complaint, Pathman made the following allegations: (1) Path-man hired the interior design firm of Lev-in, Calderin & Associates (LCA) to assist in the design of his home; (2) LCA ordered a $10,000 + dining room table from TGA for Pathman’s home; (3) TGA advised Pathman that the shipping charge for the table would be $400 to $500; (4). when the table was ready to be delivered, TGA revised this figure, informing Path-man that the delivery charge was $985.80' — $910.80 in “freight/insurance” charges and a $75.00 “residential charge”; (5) when Pathman asked for an explanation regarding the increase, he was told that the amount represented the cost to ship the table and that TGA was simply passing through the charge; and (6) Path-man ultimately learned that there was a profit component for TGA coming from the “freight/insurance” charge. Pathman claimed that TGA’s practice of failing to disclose that the “freight/insurance” charge did not represent actual shipping and insurance costs, but also included a profit component, was a deceptive and unfair trade practice.

Pathman sought to bring a FDUTPA claim not only on behalf of himself, but also on behalf of “[a]ll purchasers of furniture from [TGA] within the State of Florida whose furniture was shipped to them and who was charged a freighVdelivery charge by [TGA]” within the four years preceding the filing of suit. Pathman, an attorney, sought to be named class representative. At the time of the filing of the original and amended complaints, Pathman was represented by the law firm of Path-man Lewis, LLP — a firm in which he is a partner.

Pathman’s Motion for Class Certification

In March of 2003, approximately two years after suit was filed, Pathman first filed a motion for class certification. By this time, through discovery, Pathman had learned that, unless the buyer made his own shipping arrangements, TGA’s business practice or custom was to utilize Horizon Freight Services, Inc. (HFS) to secure and oversee the shipping. HFS did not actually do the shipping, but acted as a broker of sorts. HFS operates out of the same building as TGA and its principals and those of TGA are identical — Steven Turner and Janet Greenberg. In his deposition, Turner acknowledged that TGA did not disclose that either it or HFS made a profit on the shipping and that he is the one who decides, on behalf of HFS, how much to mark-up the freight costs. Records reflected that HFS’s mark-up varied, sometimes reaching as much as eighty-six percent.

Relying upon these facts, Pathman took the position that all of Florida Rule of Civil Procedure 1.220(a)’s requirements for class certification — numerosity, commonality, typicality, and adequate representation— had been satisfied. Specifically, Pathman claimed that (1) the number of class members exceeded 500; (2) common questions of law and fact predominated, including whether a reasonable consumer would interpret the term “freight/insurance” to reflect actual shipping costs — not cost plus a margin of profit — and whether TGA’s practice of representing the “freight/insurance” charge as a pass-through, when, in fact, TGA is making a profit, offends public policy or is unethical; (3) his claim was typical of that of the other class members; and (4) he was an adequate class representative.

TGA, on the other hand, insisted that none of the predicates for class certification had been met. With regard to numer-osity and typicality, respectively, TGA argued that Pathman had failed to identify a single other person who claimed to have been misled by TGA’s practices or to have overpaid and that since Pathman acknowledged that he learned of the profit component prior to paying for the delivery, he was subject to unique defenses. TGA further contended that the fact that Path-man’s law firm had served as class counsel for a time gave rise to a conflict of interest that precluded him from being an adequate class representative.

A hearing was. held on Pathman’s motion on June 9, 2003. Although no testimony was. taken, both parties attached affidavits, depositions, and other documentation to their respective motions. On the basis of such evidence, the trial court found that the requirements of rule 1.220(a) and (b)(3) had been satisfied, granting the motion for class certification. On appeal, the trial court’s ruling is reviewed for an abuse of discretion. See Execu-Tech Bus. Sys., Inc. v. Appleton Papers, Inc., 743 So.2d 19, 20 (Fla. 4th DCA 1999).

Florida Rule of Civil Procedure 1.220

A class action is sustainable only if the requirements of subsections (a) and (b) of Florida Rule of Civil Procedure 1.220 are satisfied. Subsection (a) requires that, before certifying a class, the trial court must first conclude that all of the following conditions exist:

(1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

Fla. R. Civ. P. 1.220(a).

Subsection (b) further requires that one of three prescribed circumstances be present. Here, certification was predicated upon subsection'(b)(3), which requires that

[T]he questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the'class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy.

We now briefly address several of these requirements in the context of the instant case.

Numerosity

The demonstration of actual loss is a predicate to recovery under FDUTPA. See § 501.211(2); Fla. Stat. (2003) (authorizing recovery of “actual damages”); Maroone Chevrolet, Inc. v. Nordstrom, 587 So.2d 514, 518-19 (Fla. 4th DCA 1991). Thus, in order for a TGA customer to be a member of the class, he or she must have been damaged. TGA contends that a customer was damaged and, thus a potential class member, only if he or she establishes “that the freight charged by Horizon was more than if the customer attempted to obtain, similar services from another freight broker.” According to TGA, since Pathman failed to present evidence that any of TGA’s customers would have paid less by using another freight broker, he failed to satisfy the numerosity requirement. Pathman, though, asserts that the measure of damages is simply the difference between what TGA charged its customers and the actual cost of the shipping and insurance, a figure that is easily ascertainable from TGA’s and HFS’s records. The findings in the order granting class certification suggest that the trial court sided with Pathman on this issue. We find no error.

Fort Lauderdale Lincoln Mercury, Inc. v. Corgnati, 715 So.2d 311 (Fla. 4th DCA 1998), while not directly on point, supports Pathman’s damages theory. There, following the purchase of a 1991 BMW, Corg-nati discovered that, contrary to the representations of the salesperson, the car had previously been involved in an accident. Corgnati then brought a FDUTPA claim predicated upon the salesperson’s alleged misrepresentation. The trial court found in favor of Corgnati on the FDUTPA claim, awarding as damages the amount of two loan payments that Corgnati had made on the car and the values of the cars that Corgnati had traded-in when buying the BMW. This court reversed the damages award, agreeing with the defendant’s assertion that the correct measure of damages was the difference between the value of a BMW that had not been in an accident—as represented—and the value of the previously wrecked BMW purchased by Corgnati.

In Corgnati the unfair and deceptive trade practice was the failure to disclose the car’s true condition; thus, the measure of damages was the difference between the represented condition and the true condition. Similarly, here, the alleged unfair or deceptive trade practice was TGA’s failure to disclose that the “freighVinsurance” charge included an element of profit; thus, an appropriate measure of damages is the undisclosed profit, i.e., the difference between the actual costs implied by the term “freighVinsurance” and the marked-up amount charged to the TGA customer. With this difference being the measure of damages, the ledgers, composite exhibit, and affidavits offered in support of class certification provided adequate evidentiary support for the trial court’s finding of numerosity. Cf. Rollins, Inc. v. Heller, 454 So.2d 580 (Fla. 3d DCA 1984) (finding that FDUTPA claim against parent company was not precluded by the fact that the contract for service was with a subsidiary as the parent company was a direct participant in the dealings with the consumers).

Adequate Representation

Rule 1.220(a)’s requirement of adequate representation looks to whether “ ‘the named representatives have interests in common with the proposed class members and the representatives and their qualified attorneys will properly prosecute the class action.’ ” Colonial Penn Ins. Co. v. Magnetic Imaging Sys. I, Ltd., 694 So.2d 852, 854 (Fla. 3d DCA 1997) (quoting Broin v. Philip Morris Cos., 641 So.2d 888, 892 (Fla. 3d DCA 1994)). One of the fundamental components of a class representative’s ability to adequately represent the class is that they not have a significant conflict of interest with the other class members. See, e.g., Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir.2003); Terry L. Braun, P.A v. Campbell, 827 So.2d 261, 268 (Fla. 5th DCA 2002), review denied, 845 So.2d 888 (Fla.2003). For this reason, the courts have been especially cautious when the class representative is an attorney who has professional ties to class counsel. See, e.g., Susman v. Lincoln Am. Corp., 561 F.2d 86 (7th Cir.1977); Shroder v. Suburban Coastal Corp., 729 F.2d 1371 (11th Cir.1984).

As already mentioned, when Path-man initially filed this would-be class action, he hired his own law firm as counsel. Pathman’s firm then represented him during the approximately two years of litigation that preceded the filing of the motion for class certification. While Pathman ultimately obtained new counsel, TGA asserts that the bill for Pathman’s firm’s services exceeds $200,000 and that Path-man’s stake, as a partner, in these legal fees precludes a finding that he is an adequate class representative. We agree that Pathman’s status as a shareholder in a firm that is owed more than $200,000 in fees could create a conflict of interest. During oral argument in this case, Path-man expressly waived the right to any fees for legal work previously performed by himself and Pathman Lewis, LLP. We find that such waiver cures any potential conflict of interest.

TGA also suggests that Pathman is an inadequate class representative because he lacks credibility and is allegedly using the class action as a form of legal blackmail. We reject both of these claims without further discussion.

Predominance & Superiority

TGA takes the position that neither the predominance nor the superiority requirements can be satisfied here as resolution of the issues will require the court to make individualized inquiries regarding (1) whether TGA affirmatively represented that the “freight/insurance” charge was simply a pass-through charge; (2) whether the customer relied upon that representation by TGA; and (3) the amount that another freight broker would have charged for the cost of shipping and its services. First, as mentioned in footnote 1, Pathman has pursued his FDUTPA claim on a failure to disclose theory. Second, a demonstration of reliance by an individual consumer is not necessary in the context of FDUTPA.

The decision in Latman v. Costa Cruise Lines, N.V., 758 So.2d 699 (Fla. 3d DCA 2000), review denied, 819 So.2d 136 (Fla.), cert. denied, 537 U.S. 884, 123 S.Ct. 117, 154 L.Ed.2d 143 (2002), is illustrative of this latter point. There, the named plaintiffs sought to bring a class action suit on behalf of cruise line passengers, essentially alleging that the cruise lines were hiding profit in the “port charges.” While the term “port charges” was not defined, the plaintiffs asserted that the term implied that the charge represented amounts that were actually paid over to port authorities. According to the plaintiffs, though, the cruise lines were paying over only a portion of the “port charge” and pocketing the rest — a practice that they alleged was deceptive and unfair. The cruise lines opposed certification of the class, arguing that because the passengers were given the total price for the cruise, “absent some indication that the consumers were influenced in some way by the port charges, there is neither reliance nor resulting damage under FDUTPA.” 758 So.2d at 702-03. The trial court accepted this argument and denied class certification. The Third District, however, reversed, finding that “[r]eliance and damages are sufficiently shown by the fact that the passenger parted with money for what should have been a ‘pass-through’ port charge, but the cruise line kept the money.” Id. at 703. The same can be said for the “freight/delivery charge” in the instant case.

Conclusion

We have considered the other arguments raised on appeal, including those concerning “typicality” and “commonality,” but find no error. Accordingly, the order on appeal is AFFIRMED.

STONE and HAZOURI, JJ., concur.

      . At some points, the amended complaint appears to be complaining of TGA's failure to disclose the profit component and at others of TGA’s ”advis[ing] consumers that the freight charges it charged for the delivery of merchandise were a direct pass through of Turner’s actual costs.” Based on the arguments advanced below and in the briefs, Pathman appears to be proceeding on the failure to disclose theory.


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    Joseph CARTWRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1272.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.

      ' Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Joseph Cartwright appeals his conviction for burglary of a dwelling. He contends that the trial court erred in denying his motions for mistrial made after the court allowed: (1) the victim’s testimony about a prior burglary at his. home; (2) testimony concerning the defendant’s possession of marijuana while in the victim’s home; and (3) improper closing argument by the state.

When Sean Brammer, a Florida state trooper, pulled into the parking lot of his Lauderhill condominium around 8:00 p.m. on June 4, 2002, he noticed that a bedroom light was on. As he entered the front porch door, he saw the living room light go out. Moments later, he saw the defendant open the kitchen door and stick his head out. Brammer had never seen the defendant before. He drew his firearm, identified himself as a law enforcement officer, and asked the defendant what he was doing there. The defendant replied that he was there visiting his “sister.” He was barefoot and wearing only a tank top and shorts. The house had not been ransacked. Brammer held the defendant at gunpoint until the police arrived.

Brammer testified that he changed the locks to his condominium when he moved there in November 2001. He testified, over defense objection, that he changed the locks a second time when his condominium was broken into two weeks before this incident. On that occasion, entry was gained through a window, and a TV/VCR and CD player were stolen. This time, it appeared that entry was again made through a window after removal of a screen and jalousie window pane.

The defendant testified at trial. He said that the previous resident of the condominium, Alisha Milligan, had given him a key to the condominium. She was a friend of his, whom he called his “sister” in the Rastafarian tradition. Because he had not seen her in a while, he decided to stop by. When he found that the front door was latched, he used the key to let himself in through the kitchen door. He noticed that the condominium was empty but decided to stay there and eat his food. Since the weather was hot, he removed his clothes. He remained in the condominium for about thirty to forty-five minutes until Sean Brammer arrived and confronted him.

Before trial, defense counsel obtained an order in limine precluding the state from eliciting testimony from the victim about the prior burglary at his home. The trial court determined that the prejudicial effect of such testimony would outweigh its probative value. However, the court ruled that it would allow the victim to testify that he had changed the locks to his condo two weeks before the charged burglary. The court found this testimony relevant to refute the defendant’s statement that he entered the apartment using a key given to him by the prior tenant.

At trial, the victim testified on direct examination that he changed the locks to his condominium two weeks before the encounter with the defendant. On cross-examination, defense counsel asked:

Q. Isn’t it true that you told me you changed the locks when you moved in back in November?
A. That’s correct.
Q. Okay.
A. I changed the locks when I first bought the condo.

Whereupon, the state asserted at sidebar that this questioning opened the door to allow him to question the victim about the previous burglary as the reason for the second changing of the locks. The trial court agreed and, over defense objection, permitted the state to elicit testimony about the first burglary, the items that were stolen, and the mode of entry through the jalousie window. The defense moved for a mistrial. The motion was denied.

During closing argument, the state highlighted this testimony about the prior burglary and asked the jury to draw a connection, stating:

Lo and behold why were the locks changed again? Because he did change them, because he was the victim of a burglary just two weeks ago. And he testified that the individual, whomever that may have been — the State is not implying that Mr. Cartwright burglarized this home. But I ask you to take into consideration that it’s not a coincidence that the fashion by ivhich entry was gained into this condo was exactly the same manner.

(emphasis supplied).

The defendant argues that the trial court erred in denying his motion for mistrial following the victim’s testimony that he had previously been burglarized. He contends that evidence of this collateral offense was prejudicial in suggesting that the defendant had the propensity to commit burglaries and, thus, was more likely to be guilty.

A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial. See Hamilton v. State, 703 So.2d 1038, 1041 (Fla.1997). Ruling on a motion for mistrial is within the trial court’s discretion. Id. Determining the relevance of evidence is also within the trial court’s broad discretion, and such a determination will not be disturbed absent an abuse of discretion. See Heath v. State, 648 So.2d 660, 664 (Fla.1994). However, a trial court’s discretion is limited by the rules of evidence. See Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

Section 90.404(2)(a), Florida Statutes (2003), which codifies the Williams rule, provides that similar fact evidence of other crimes is admissible when relevant to prove a material fact in issue, but is inadmissible when the evidence is relevant solely to prove bad character or propensity. Evidence which suggests that a defendant has committed other crimes can have a “powerful effect” on the results at trial. Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997).

Revealing to the jury that a burglary had occurred on the same premises two weeks before, without more, would not necessarily violate this rule, absent some suggestion that the defendant was connected to the prior crime. As the state points out, “[t]o compel the state to put on its case in a factual vacuum, devoid of such necessary background information, would be a disservice to the fact finder.” Gillion v. State, 573 So.2d 810, 811 (Fla.1991). Rather, the state should be allowed considerable leeway to show facts which “ ‘fill in the background of the narrative.’ ” Id. (quoting McCormick on Evidence § 185, at 541 (3d ed. 1984)).

In this case, the prosecutor argued at trial that evidence of the prior burglary was admissible because defense counsel opened the door to examination on this issue when he questioned the victim about when he changed the locks on his condo. He maintained that defense counsel had impeached the witness by eliciting contradictory answers about when the locks were changed. Therefore, the state argued, the jury was entitled to an explanation as to why the locks were changed to clarify the inconsistency. Although we are not persuaded that defense counsel’s cross-examination as to lohen the victim changed the locks opened the door to testimony about why he changed them (the first burglary), we find no abuse of discretion in the trial court’s ruling. The “opening the door” concept is based on considerations of fairness, and as a general rule, testimony is admissible on redirect which tends to “qualify, explain, or limit testimony given on cross-examination.” Wright v. State, 582 So.2d 774, 775 (Fla. 2d DCA 1991).

However, while admission of the collateral crimes evidence may not have been error standing alone, the prejudice results ing from this evidence was compounded by the state’s closing argument, which highlighted this testimony. The prosecutor told the jury during closing argument that he was not “implying that Mr. Cartwright burglarized this home.” Yet, in the same breath, he urged the jury to consider that “it’s not a coincidence that the fashion by which entry was gained into this condo was exactly the same manner.” By implying that the defendant had committed the first burglary, the prosecutor suggested that the defendant had the propensity to commit other burglaries and was thus guilty of the burglary charged. This attack on the defendant’s character strikes at the heart of the Williams rule.

Improper admission of collateral crimes evidence is presumed harmful. See Gore v. State, 719 So.2d 1197, 1199 (Fla.1998). Here, where the improper collateral crimes evidence was again highlighted in closing argument, its prejudicial impact was even greater.

The defendant’s second point on appeal concerns the victim’s testimony that the defendant had marijuana in his possession while in the victim’s condominium. During cross-examination of the victim, defense counsel asked about the defendant’s clothes and shoes that were left behind in the condo after his arrest.

Q. Isn’t it true that you got rid of all of these things, you never turned them over to the police. Isn’t that right?
A. I brought his property, whatever I found, his identification along with some cannabis, I brought that to the Lauder-hill Police Department.

At that point, the defense moved for mistrial, arguing that he had no notice that marijuana was found among the defendant’s possessions. The court denied the motion, but gave a curative instruction to the jury that the defendant was not charged with possession of cannabis and to disregard the testimony about cannabis. We find no abuse of discretion in the denial of the motion for mistrial. The comment about the cannabis found in the defendant’s belongings was apparently unanticipated by the state and defense counsel alike. It was a brief, isolated comment. See Hamilton, 703 So.2d at 1041 (improper comment was unanticipated by the State and was brief); Cole v. State, 701 So.2d 845, 853 (Fla.1997) (reference was isolated and inadvertent and was not focused upon). Further, the trial court, with the defendant’s consent, promptly provided the jury with a curative instruction sufficient to cure any prejudice caused as a result of the victim’s response. See Eckard v. State, 758 So.2d 742, 743 (Fla. 5th DCA 2000) (finding no error in trial court’s denial of motion for mistrial in DUI manslaughter prosecution when witness testified that defendant was in possession of a pill bottle containing marijuana the day after the offense).

The state further argues that because the victim’s testimony about the cannabis was in response to defense counsel’s cross-examination accusing the victim of disposing of the defendant’s property instead of turning it over to the authorities, it was invited error. The primary consideration in deciding whether a party has opened the door to comments on cross-examination is whether the witness’s answer is responsive to the question asked. If it is, then it is considered invited error. See Terry v. State, 668 So.2d 954, 962 (Fla.1996); Sneed v. State, 736 So.2d 1274, 1275 (Fla. 4th DCA 1999). In this case, the victim was asked by defense counsel what he did with the defendant’s belongings. It was not unresponsive for him to enumerate the items he recalled finding in describing what he had done with them.

On his third and final point on appeal, the defendant asserts that the trial court erroneously denied his motion for mistrial made during the state’s closing argument. Of the numerous closing remarks complained of, we address only the state’s comments which suggested that the state charges only those who are guilty.

The prosecutor told the jury:

[MR. PEREZ]: A thorough investigation was in fact conducted. He was in the home red-handed. He was taken into custody. But before anything happened, before he was formally charged by the Office of the State’s Attorney, sworn statements were taken to assure the police agency and the State Attorney’s office that this prosecution is being put forth in good faith.

Courts have repeatedly condemned such “good faith” comments. See Harris v. State, 570 So.2d 397 (Fla. 3d DCA 1990) (holding that the prosecutor exceeded acceptable limits in responding to defense counsel’s argument of bad-faith prosecution by arguing to the jury her personal opinion that information must be believed because it had been sworn to as being filed in good faith by the prosecution); see also Riley v. State, 560 So.2d 279 (Fla. 3d DCA 1990).

Similarly, an argument that the state charges only those who are guilty is improper. See Ruiz v. State, 743 So.2d 1, 5 (Fla.1999) (finding that the state engaged in improper argument by implying that “[i]f the defendant wasn’t guilty, he wouldn’t be here”); Johns v. State, 832 So.2d 959, 962 (Fla. 2d DCA 2002) (finding improper the state’s remarks that it had charged the right defendant and only brought charges it could prove).

In order to require a new trial, a prosecutor’s comments must either deprive the defendant of a fair trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than it would have otherwise. See Anderson v. State, 863 So.2d 169, 187 (Fla.2003), cert. denied, — U.S. -, 124 S.Ct. 1662, 158 L.Ed.2d 363 (2004). However, we look to the record as a whole and consider both preserved and unpreserved errors in determining whether the preserved error was harmless beyond a reasonable doubt. See Martinez v. State, 761 So.2d 1074, 1083-84 (Fla.2000).

In this case, the prosecutor’s improper comments about the good faith of the state’s prosecution (preserved by the defense’s timely objection), coupled with the prosecutor’s remarks pointing out similarities in the two burglaries and suggesting that the defendant committed both (not preserved by timely objection), together constitute error that we cannot conclude is harmless beyond a reasonable doubt. The jury was instructed on the lesser included offense of trespass. But for the errors cited, a jury could reasonably have returned a verdict of trespass or not guilty, in light of the defendant's testimony that he had permission from the previous resident to be in the apartment, the defendant’s unusual behavior in removing his clothes and shoes and casually remaining there, and evidence that the condominium had not been ransacked.

We therefore reverse the judgment and sentence and remand this case for a new trial.

REVERSED and REMANDED.

GUNTHER and STEVENSON, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . The defendant did not object to these com-merits or move for a mistrial.


author: THOMPSON, J.

text:
    ALLEGHENY CASUALTY COMPANY, Appellant, v. ROCHE SURETY, INC., Appellee.
    No. 5D02-3617.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2004.

      Gregg M. Paley and Andrew S. Goldwyn of Paley & Goldwyn, P.L., Boca Raton, for Appellant.
    Fred Carrington and Terrón M. Car-rington of Carrington & Carrington, P.A., Clearwater, for Appellee.
   THOMPSON, J.

Allegheny Casualty Company (“Allegheny”) appeals a judgment and an award of attorney’s fees in favor of Roche Surety, Inc. (“Roche”). We reverse and remand.

Alfredo and Maria Del Carmen Dobor-ganes are bail bondsmen. In April 1994, they entered a contract with Allegheny under which Allegheny would act as a surety for bail bonds written by the Do-borganeses. As part of the contract, the Doborganeses deposited funds with Allegheny to cover liabilities on bonds the Doborganeses wrote. These funds, called “build-up funds,” are held in trust by Allegheny for the Doborganeses. The contract required the Doborganeses to deposit two percent of every bond they wrote, and hence, apparently, the term “build-up.” Under the contract, Allegheny was entitled to retain the funds until its liability “on any and all bonds” was fully discharged.

When the Doborganeses and Allegheny ceased doing business with each other, the Doborganeses entered a surety contract with Roche. The Doborganeses assigned Roche the funds held in trust by Allegheny, but Allegheny refused to release the funds to Roche, mainly because there were allegedly several bonds the Doborganeses had written for which there were no discharges. The evidence of these undischarged bonds consists of six, small, handwritten receipts, presumably written by one of the Doborganeses, for defendants in Dade, Monroe, and Broward (or Brevard) Counties between 1994 and 1997. Two receipts are for $5,000 each (Dade), one is for $1,000 (Monroe), one is for $15,000 (Brevard or Broward), one is for $7,500 (Dade), and one is for $20,000 (Dade). Although Roche had an affidavit from the Clerk of the Court in Dade County stating that there was no record of two or three of the four bonds issued in Dade, Roche did not have discharges for any of the bonds. Allegheny refused Roche’s offer to indemnify Allegheny for any losses it might incur in connection with the bonds.

Roche sued Allegheny for a declaratory judgment that Allegheny was obliged to turn over the funds. Allegheny claimed that it was not so obliged because there were outstanding, undischarged liabilities on bonds written by the Doborganeses. Further, Allegheny contended that it was relieved of its obligation under the contract to return the money to the Dobor-ganeses because they breached the contract by assigning it and by writing bonds for other surety companies during the term of the contract with Allegheny. The court granted Roche’s motion for summary judgment and awarded it attorney’s fees.

Allegheny argues that the court erred in entering judgment for Roche because there remain, outstanding, undischarged bonds. Allegheny further argues that since there are outstanding liabilities, the Doborganeses had no interest in the fund to assign, and thus Roche, standing in the shoes of the Doborganeses, has no claim. The contract states that on termination of the contract, and once all bonds written by the Doborganeses were discharged, the build-up fund would be returned to the Doborganeses:

In the event of the termination of the agreement, then after all liability of the Company [i.e. Allegheny] on any and all bonds written by the Producer [i.e. the Doborganeses] shall have been fully discharged and all obligations of the Producer hereunder fully met, the said fund or such balance shall then be returned to the Producer with interest thereon.

The trial court ruled that the bonds were discharged under section 903.81(1), Florida Statutes, which provides that bonds expire 36 months after they have been posted:

(1) Within 10 business days after the conditions of a bond have been satisfied or the forfeiture discharged or remitted, the court shall order the bond canceled and, if the surety has attached a certificate of cancellation to the original bond, shall furnish an executed certificate of cancellation to the surety without cost. An adjudication of guilt or innocence of the defendant shall satisfy the conditions of the bond. The original appearance bond shall expire 36 months after such bond has been posted for the release of the defendant from custody. This subsection does not apply to cases in which a bond has been declared forfeited,

(emphasis supplied). Allegheny argues that the underlined portion of the statute, upon which Roche relies, is not applicable to the bonds in question because it was added to the statute by amendment in 1999, after the bonds were written. We agree that the statute does not apply retrospectively.

First, section 903.31(1) affects substantive rights because it affects the counties’ rights in forfeitable bail bonds. As a general rule, in the absence of clear legislative intent to the contrary, a law affecting substantive rights is presumed to apply prospectively. Arrow Air, Inc., v. Walsh, 645 So.2d 422 (Fla.1994). Generally, it is impermissible for an amendment to a statute of limitations to extinguish an existing claim. See Polk County BOCC v. Special Disability Trust Fund, 791 So.2d 581, 583 (Fla. 1st DCA 2001). Such an amendment can, however, shorten the limitations period applicable to the prior claim if the intent to make the amendment retroactive is clearly expressed, and if a reasonable time is allowed within which to seek enforcement of such claim. Id. The amendment at issue here is similar to a statute of limitations because it extinguishes a county’s right to forfeiture of bonds. If the amendment applied retrospectively, any bond that became three years old on the date the amendment was effective would expire, but there is no provision in the amendment for a reasonable time to seek enforcement of a county’s right to forfeit the bond. Hence, because there is no showing of a legislative intent to have the statute apply retrospectively, we must conclude that the amendment was not intended to be applied retrospectively and that therefore the trial court erred in ruling that the bonds were discharged by operation of law.

Next, Allegheny contends that the court erred in entering judgment for Roche because the Doborganeses breached the contract by assigning their rights under it to Roche, and by doing business with another surety before the termination of the contract between the Doborganeses and Allegheny. Allegheny argues that because of the breaches, Allegheny is not required to perform its obligation to return the build-up fund. We disagree. The contract forbids assignment of “this contract or any interest therein.” Because it does not forbid the assignment of the Doborganeses’ money, they were free to assign it. See Cordis Corp. v. Sonics International, Inc., 427 So.2d 782 (Fla. 3d DCA 1983); Charles L. Bowman & Co. v. Erwin, 468 F.2d 1293 (5th Cir.1972). Furthermore, even if the contract did forbid the assignment of the trust funds, Allegheny would not simply be allowed to keep the money. See Timberland Consolidated Partnership v. Andrews Land & Timber, Inc., 818 So.2d 609 (Fla. 5th DCA 2002) (“Generally, if a party to a contract justifiably refuses to perform on the ground that the party’s remaining duties of performance have been discharged by the other party’s breach, the party in breach is entitled to restitution for any benefit he has conferred by way of part performance in excess of the loss that he has caused by his own breach.”). Similarly, if the Dobor-ganeses breached the contract by writing bonds through another surety, and we do not here decide that they did breach the contract, it would not entitle Allegheny to a windfall. Id.

Allegheny further claims that the trial court did not have subject matter jurisdiction because the contract provides that “exclusive jurisdiction and venue shall lie in the State of New Jersey.” This provision cannot divest the court below of its jurisdiction, which is established by the constitution and statutes enacted pursuant to it. Henry P. Trawick, Jr., Trawick’s Florida Practice and Procedure, § 3-1 (2000); Evans v. State, 647 So.2d 180 (Fla. 1st DCA 1994) (defendant cannot confer jurisdiction on court by waiver, acquiescence, estoppel, or consent, since jurisdiction is established solely by general law).

Finally, Allegheny contends that the court erred in awarding attorney’s fees to Roche. Roche sought attorney’s fees pursuant to section 57.105(1) and (3). In its order, the court stated that it awarded the fees pursuant to “its inherent authority because the cause of justice so requires.” The award of fees is to Roche, but it does not specify whether it is against Allegheny and/or Allegheny’s attorneys. The court made no findings of fact.

In Bitterman v. Bitterman, 714 So.2d 356 (Fla.1998), the court held that in the absence of statutory or contractual authority, a court could award attorney’s fees under the inequitable conduct doctrine. Later, in Moakley v. Smallwood, 826 So.2d 221 (Fla.2002), the court held that a trial court has inherent jurisdiction to award attorney’s fees as a sanction against a party’s attorney for bad faith conduct. However, in Moakley, the court held that an award of fees must be based on an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees. Id. at 227. Furthermore, the amount of the award must be directly related to the attorneys’ fees and costs that the opposing party has incurred as a result of the specific bad faith conduct of the attorney. Id. The requirements of Moakley also apply when the attorney’s fee award is a sanction against a party pursuant to Bitterman. T/F Systems, Inc. v. Malt, 814 So.2d 511 (Fla. 4th DCA 2002).

In the instant case, the trial court did not follow the procedures described in Moakley, so the award of attorney’s fees must be reversed. Furthermore, it is not clear whether the court thought that Allegheny indulged in litigation tactics that warranted sanctions, or that Allegheny was acting in bad faith by refusing to release the money, or both. On remand, the trial court may revisit this issue if it is deemed appropriate. See North County Co., Inc. v. Bologna, 816 So.2d 842 (Fla. 4th DCA 2002).

REVERSED and REMANDED.

GRIFFIN, J., and PARSONS, W.A., Associate Judge, concur.

      . At one of the hearings below, Allegheny's counsel told the court that the Doborganeses said in their depositions that they lost their records when a lessor disposed of their property because they did not pay a storage bill.

      . See Chapter 99-303, § 7, Laws of Florida.

      . Roche argues that given the age of the bonds in issue, the trial court properly took into consideration the affidavit of the Dade County court clerk when hearing argument that Roche had difficulty in obtaining discharges. It may be that, as a practical matter, there is no longer any liability under these bonds and that Allegheny is acting in bad faith by apparently insisting on formal discharges. If Roche can show that Allegheny is no longer liable on the bonds but cannot obtain the formal discharges Allegheny seems to be insisting on, then Roche may be entitled to relief based on a theory such as impossibility of performance and/or the contractual duty of good faith, see e.g. Market Street Associates Ltd. Partnership v. Prey, 941 F.2d 588 (7th Cir.1991) (“Good faith” is a compact reference to an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated • at the time of drafting, and which therefore was not resolved explicitly by the parties). At this stage, however, Roche has shown no more than that the outstanding bonds are old and that at a certain point in time there was no record in Dade County regarding some of the outstanding bonds.

      . According to the initial brief, the trust account is held in a bank in Inverness, Florida, so the funds are within the territorial jurisdiction of the court below. There can be no claim, therefore, that the local action rule precludes the action below. Compare Ruth v. Department of Legal Affairs, 684 So.2d 181 (Fla.1996).


author: SHARP, W., J.

text:
    Dexter HAWKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-245.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2004.

      James B. Gibson, Public Defender, and Marvin Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Hawks appeals from his judgment and sentences from two separate cases: resisting an officer with violence in Case No. 02CF-7970 and possession of more than twenty grams of cannabis in Case No. 02CF-7975. Hawks was sentenced to concurrent terms of one year in jail and was given credit for 26 days time served. On appeal, Hawks contends he was entitled to additional credit for the time he spent in jail on an unrelated murder charge. We find the evidence is sufficient to support the trial court’s denial of this request. Even though we affirm on this point, we must remand the cause to the trial court to correct an error in the judgment form in Case No. 02CF-7975.

The record shows that Hawks was arrested on June 3, 2002, for numerous charges. In Case No. 02CF-7970, he was charged with battery on a law enforcement officer, depriving an officer of means of protection or communication and resisting an officer with violence. In Case No. 02CF-7975, he was charged with possession of more than twenty grams of cannabis with a weapon, carrying a concealed firearm, possession of a firearm by a convicted delinquent and possession of a firearm by a minor. Hawks was released on bond on June 29, 2002.

Some time in the fall of 2002, Hawks was arrested for second degree murder. He was kept in jail without bond.

In January 2003, Hawks entered guilty pleas to resisting an officer with violence in Case No. 02CF-7970 and possession of cannabis over twenty grams but not involving a weapon in Case No. 02CF-7975. In return, the state agreed to nolle pros the other charges and to recommend concurrent sentences of one year in jail. Sentencing was postponed until Hawks’ other criminal matters were resolved.

In September 2003, Hawks was acquitted of the murder charge and released from jail. At the sentencing hearing in these cases, defense counsel asked that Hawks be given credit for the time he served in jail on the murder charge. According to defense counsel, Hawks’ bondsman discharged the bond for Case No. 02CF-7970 in December 2002 while Hawks was in jail on the murder charge. Defense counsel argued Hawks was entitled to credit for the time spent in jail from December 2002 until his release on the murder charge in September 2003.

Apparently the bond paperwork in Case No. 02CF-7970 was stamped “discharged,” had the date of December 3, 2002 on it and was docketed by an employee in the Clerk’s office. However, the bond paperwork in Case No. 02CF-7975 was not stamped discharged.

Because the bond status was not clear, the judge asked Cindy Knight, the criminal intake team leader at the Clerk’s office, to explain the procedure in bond cases. Knight testified that the Clerk’s office stamps “discharged” on a bond to show the bondsman has no further responsibility in the case. Knight did not believe the bond should have been stamped “discharged” in Case No. 02CF-7970 because only two of the three counts were nolle prossed.

Knight explained that when a bondsman wants to exonerate himself of his obligation on the bond, he surrenders the defendant to jail and the bond is “endorsed.” Once the endorsed bond is received, the Clerk’s office will discharge the bond. Knight did not believe this had happened here because she did not see any endorsed bond paperwork.

Knight also testified the Clerk’s employee who docketed the paperwork sets the arraignment court dates in the Clerk’s office. She does not deal with bond paperwork. Rather, the bond clerks are responsible for stamping the bonds discharged.

Hawks’ mother testified she believed the bondsman had “come off’ the bond. However, the bondsman never testified.

After reviewing the paperwork and hearing from the witnesses, the judge denied the request for additional jail time credit:

[Hawks] posted bond in 7970 and 7975, and was released on those charges on June 29th. He was arrested on June 3rd. He was subsequently charged with second-degree murder, held in jail without bond on that charge; went to trial and was acquitted. At the end of that case, he was released from the jail back into the community, because these files indicate that he — that these bonds were never endorsed by the bondsman. And while the clerk has stamped discharged on one bond, they didn’t stamp it on the other charge, and there’s no supporting document to indicate why a bond would be discharged in CF02-7970.
Mr. Hawks was in jail, like I say, on the second-degree murder accusation, for a length of time, from that charge till he was acquitted at trial, and then he was released. I don’t believe he entered his plea with any communication to the Court that I am in jail on these charges because my bondsman endorsed and I’m not going to get out of jail. In fact, if that had been communicated to me, I’d say, I might as well go ahead and sentence you right now, because you’re not getting out of jail; you have no bondsman; you have no bond to — that you can post.
I didn’t sentence him back on the date of his plea at his own request. And now he wants the benefit of some bargain I don’t think he ever struck, which is to come in and get credit for the time that he served in jail awaiting his trial on a second-degree murder charge against these sentences that he negotiated. And I don’t believe he’s legally entitled to it. He left — if you are correct, he should have sat in jail from his acquittal on the second-degree murder trial until today, and he didn’t. So I don’t think he’s legally entitled to it....

Generally a defendant is only entitled to credit against each sentence for the time spent in jail for the charge which led to that sentence. Blake v. State, 807 So.2d 772 (Fla. 2d DCA 2002). For Hawks to be entitled to credit for the time he spent in jail on the unrelated charge of murder, it was necessary for his bondsman to have “surrendered” him to authorities and have the bond discharged. Whether that actually happened here is a factual issue. See McKnight v. State, 769 So.2d 434 (Fla. 2d DCA 2000) (defendant’s claim that he was entitled to additional credit for jail time because he voluntarily cancelled his bond on one charge while he was serving jail time on other unbonded charges required an evidentiary hearing).

We conclude the evidence is sufficient to support the judge’s determination that Hawks was not entitled to this additional jail time credit. There was no supporting documentation to indicate why the bond in one case would have been discharged. The employee in the Clerk’s office who docketed that paperwork sets arraignment court dates and does not deal with bonds. The bond paperwork in the other case was not stamped discharged. Most importantly, Hawks was released following his acquittal on the murder charge. This should not have happened had Hawks been surrendered to authorities and his bond discharged.

Hawks also contends the judgment form in Case No. 02CF-7975 incorrectly lists the possession offense as involving a weapon when in fact he entered a plea to the possession charge but not involving a weapon. The transcript supports Hawks’ claim and the state concedes the judgment should be corrected.

AFFIRMED; REMANDED to Correct Judgment in Case 02CF-7975.

GRIFFIN and THOMPSON, JJ., concur.

      . Hawks had just recently turned fifteen-years-old but was transferred to adult court.


text:
    Randy G. ALPHA, Sr., Appellant/Cross-Appellee, v. Elizabeth M. ALPHA, Appellee/Cross-Appellant.
    No. 5D03-1013.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2004.

      Elizabeth Siano-Harris of Stadler & Harris, P.A., Titusville, for Appellant/Cross-Appellee.
    Stephen M. Brewer of Stephen M. Brewer, P.A., Titusville, for Appel-lee/Cross-Appellant.
   SHARP, W., J.

Randy Alpha, the former husband, appeals from a final judgment of dissolution, raising numerous grounds: the trial court erred in not making findings concerning the identity of the parties’ marital and non-marital assets, and their values as required by section 61.075(3)(a-d); the trial court erred in awarding the former wife, Elizabeth Alpha, rehabilitative alimony in the amount of $350.00 per month for a period of four years; it was error to require Randy to maintain life insurance in the sum of $250,000.00 to secure the award of alimony, and that it was also error to require him to maintain $75,000.00 in life insurance to secure the award of child support for the parties’ minor daughter, naming Elizabeth as beneficiary; the trial court erred in awarding Elizabeth $6,570.97 towards her attorney’s fees and costs, which totaled $13,141.95; and the trial court erred in valuing Randy’s insurance business at $200,000.00, and in finding it was totally a marital asset subject to equitable distribution.

In turn, Elizabeth cross-appeals on the following grounds: she should have been awarded a larger amount of rehabilitative alimony or permanent periodic alimony and she should have been awarded 100% of her attorney’s fees because of the great disparity in the parties’ ability to earn income.

This case touches on a large number of family law issues and we compliment both attorneys and the trial judge for their competent and professional handling of this case. We affirm the equitable distri-button of the parties’ marital assets, which was basically 50/50. We remand the alimony award for further findings and consideration by the trial judge. We reverse the partial attorney’s fee award for the former wife, finding she should have been awarded the full amount of her fees and costs.

The record establishes that the parties married on March 17, 1989. It was a second marriage for Randy, a first for Elizabeth. One daughter was born in 1993. Elizabeth filed for a dissolution on October 15, 2001, although the parties continued to share the marital residence during the pendency of this suit. Theirs was an approximately twelve and one-half year marriage.

At the time of the dissolution, Randy was 50 years of age and had worked both prior to the marriage and thereafter for Allstate Insurance Company. After the parties married, Randy opened his own insurance agency in Titusville. He asked Elizabeth to obtain two insurance licenses so that she could work in his office. At that point in time, he could not afford to pay anyone else to work for him. She did so, for a number of years, and was paid $1.50 per hour, for the purpose of obtaining workers’ compensation insurance.

Elizabeth worked in his office full time until the parties’ daughter was born. She quit for a while and then worked part time in the office until 1995, when Randy acquired a partner. Throughout the marriage, Randy built up his insurance business and in the past several years made in excess of $100,000.00 per year. The trial court found, based on Randy’s financial affidavit filed in the court, that he has a net monthly income of $5,995.42.

At the time the parties married, Elizabeth was twenty years old and at the time of the dissolution she was thirty-four. When the parties met, Elizabeth was working full time in the Allstate Insurance Office in St. Petersburg, Florida, and was attending a junior college. It was her goal to earn a four-year degree and become a social worker. After the marriage, she moved to Titusville and worked in her husband’s new business. However, she continued to attend a community college and earned her two-year degree in 1991. She then began attending UCF and completed twelve credits, prior to the birth of her daughter. When she stopped working part time for her husband, she became a full time homemaker and engaged in many activities with her child, including the BCC Lab School.

Randy commented that Elizabeth was working for free as a volunteer and that she might as well get a paying job. She then became employed part time at Target and more recently she worked as a passenger representative for Walt Disney World at Port Canaveral, earning $6.79 per hour for fifteen hours a week. After filing the suit for dissolution, Elizabeth continued her studies at UCF, with the goal of earning her four-year degree to become a social worker. Based on her financial affidavit submitted at the trial, her net earnings were $303.40 per month.

Prior to the trial, the parties settled numerous issues and entered into a stipulation which the court accepted and implemented, attaching the schedule of division and valuation of the parties’ personal and intangible property to the dissolution judgment. These resolved issues were: primary custody of the daughter to Elizabeth; visitation; child support; allocation of the tax exemption; health insurance for the child; distribution of the marital residence to Randy with a $20,000.00 payment to Elizabeth to compensate her for one-half the value of the equity; distribution of the parties’ respective automobiles; distribution of all the parties’ financial accounts and retirement plans; and most of the items of personal property in the marital home. Left for trial were issues pertaining to an award of alimony, classification of a 2.9 acre tract of unimproved land in Georgia (marital or not marital), the valuation and nature (marital or not marital) of Randy’s insurance business, and an award of attorney’s fees and costs to Elizabeth.

1. Failure of the Trial Court to Make Findings Required by Section 61.075(3).

Section 61.075(3) provides that prior to other determinations such as awarding or denying alimony, the trial court should determine which assets and liabilities are non-marital or marital, value them, and designate which spouse is entitled to distribution of each asset, supported by fact findings. This court has held in many cases, that unless the trial court makes the findings required by section 61.075(3) as well as those outlined in section 61.08(2), in granting or denying alimony awards, appellate review is defeated, and we must reverse and remand for the appropriate findings. However, more recently this court retreated from that position where the record is sufficient for us to determine that the evidence supports the trial court’s rulings, and where the parties fail to request specific findings either at the trial, or on motion for rehearing.

In this case, the parties stipulated as to how a majority of their marital assets should be distributed and to their values. Neither party requested specific findings in this regard at trial or on rehearing. Further, as to the stipulated items, it is questionable whether specific fact findings are required because section 61.075(3) states it is applicable: “[i]n any contested dissolution action wherein a stipulation and agreement has not been entered and filed....” (Emphasis supplied)

As indicated by the stipulation, it appears the parties agreed to divide their marital assets roughly 50/50. Randy received the marital residence, but he was required to pay Elizabeth $20,000.00, for one-half of the equity in the home, at a time in the future not specified. Each received his or her own vehicles of roughly equal values ($18,000.00 for Randy and $15,000.00 for Elizabeth). Randy received all the funds he had in First Union at the time of the filing of the dissolution and Elizabeth retained the funds she received from the sale of her Disney stock and Allstate Annuity (minimal amounts). Each received one-half of Randy’s Allstate Retirement acquired during the marriage and Elizabeth received one-half of the listed stocks and mutual fund assets, less a percentage of their value to account for Randy’s pre-marital funds. This resulted in a total distribution of $55,110.00 to Elizabeth. Randy received the balance: $38,831.98 pre-marital, plus $55,110.00 marital. The court also split the IRS refund equally between the parties, as they had agreed ($2,740.00 to each). Failure to make specific findings with regard to these assets is not error in this case.

The parties also agreed to the disposition of their personal property, except for two items: a grandfather clock and a Newton painting. The court awarded the clock to Randy and the painting to Elizabeth. The schedule of the personal property and values is attached to the final judgment. Although the items are numerous, few are valued at $500.00, and most are less. Since both parties agreed to the division and their valuation, we can assume it was roughly equal. Even if separated out and added to the parties’ asset columns, these values would have little or no effect on the ascertainment of the parties’ financial situations, post-dissolution, since they are not income-producing and the parties intended to keep and use them in setting up their separate households. Failure to make specific findings with regard to these assets is not error in this case.

With regard to the two disputed items, the Georgia property and Randy’s insurance business, sufficient evidence was presented to support the trial court’s findings that both were marital assets. It made specific findings that they were marital, placed a value on each, and made a 50/50 division of each, as required by section 61.075.

In the final judgment, the court set forth its findings as to why it ruled the Georgia property was a marital asset. Although the property had been owned by Randy before the parties married, in 1993 he directed an attorney to put the property jointly in his and Elizabeth’s names. The express wording on the document indicated the consideration for the transfer was a “deed of gift.” Elizabeth testified it was a gift to her and that the parties had planned to build cabins on the property for themselves and Elizabeth’s parents when Randy retired. Randy testified the deed was executed for estate planning purposes and no gift was intended. However, the trial court found Randy’s testimony was insufficient to overcome the express terms of the deed. Thus, pursuant to section 61.075(5)(a)3, the court found it was a marital asset.

The Georgia property was awarded to Randy, but he was required to pay Elizabeth $6,250.00 for her half-interest, within thirty days of the final judgment. The valuation of this property at $12,500.00 was supported by an appraisal admitted in evidence at the trial. Neither party disputed its accuracy.

The court also set out findings as to why it considered Randy’s insurance business to be a marital asset, based on testimony presented at the trial. Both parties agreed that when the former husband began working for Allstate in 1981, he was merely an employee and had no ability to sell his “book of business,” (basically his ability to sell his right to earned premiums on policies he sold). After he opened his own insurance business in Titusville with the assistance of Elizabeth, he could have sold his book of business to a buyer approved by Allstate.

However, in July of 2000, Allstate forced him to elect between options of selling his business in a short period of time to an Allstate approved buyer, being terminated, or entering into a two-year contract as a new exclusive agent. Pursuant to the contract, after a two-year period, if he was not terminated before its end, Randy again would be able to sell his entire book of business. Also, during the term of the two years, he would only be able to sell the book of business he accrued during that two-year period. He elected this later option, and formed a corporation to execute the contract with Allstate. He owned 90% of the stock and Elizabeth owned 10%. At the time of the trial, the two-year period had passed, but at the time Elizabeth filed for a dissolution the two years had less than one year to run.

The expert witness for Randy testified that on October 1, 2001, the date the petition for dissolution was filed, the book of business Randy could sell was worth between $17,600.00 to $23,500.00, based on policies generated during the two-year period. However, he testified the value on the date of the trial was between $209,400.00 and $279,000.00, based on what a willing buyer in the insurance business would pay for this business. The court also considered the fact that within the two-year period, Randy had advertised his and his partner’s insurance business for sale at $630,000.00, a somewhat “exaggerated” value, Randy testified. Randy owned 56% of the business and the balance was owned by his partner.

Elizabeth’s expert witness testified he used a net income analysis basis (ie., the fact that Randy was earning in the range of $100,000.00 per year) in determining Randy’s business was worth $220,000.00 at the time of the trial, as well as on the date Elizabeth filed for dissolution. He did not consider the two-year contract with Allstate because, he explained, it was improper to base a valuation on contingencies which had not occurred.

The trial court determined that the insurance business was worth $200,000.00. Randy argues on appeal that there is no basis in this record for that valuation. However, it is close to the value arrived at by Randy’s expert had Randy’s expert disregarded the two-year contract that both created the possibility of selling his complete book of business and required a two-year waiting period. The trial court could also have properly discounted the values arrived at by Elizabeth’s expert due to the limitations and difficulties Randy testified about, even after the two-year period expired, that he would experience by having to sell his business to a buyer approved by Allstate, and that he would continue to remain subject to a ninety-day termination period, during which he would have to find such a buyer or suffer a small termination payout, based only on business generated after July 2000. These requirements continued as part of his corporation’s arrangement with Allstate. We find no error with regard to the valuation of Randy’s insurance business.

Randy also argues that the trial court erred in not finding that part of his business was pre-marital, since his book of business commenced in 1981. He testified that in 1981 he was servicing 2,039 policies, and that he is currently servicing 2,430 policies. Thus, he reasoned 96% of the business should be deemed pre-marital. The trial court did not expressly address this issue in the final judgment, finding that the whole of the book of business was a marital asset. Resolution of credibility issues is the trial court’s function. Had Randy only written 391 policies since 1989, it is doubtful he would still be working for Allstate. Accordingly, the trial court awarded Elizabeth $100,000.00, one-half share of the value of the business, payable within eighteen months, after the final judgment.

This finding has support in the evidence based on the fact that Randy’s expert admitted he had not looked at the policies written prior to the parties’ marriage in 1989 and compared them with the ones being serviced in 2001. The Allstate exhibits at trial which report Randy’s insurance business, indicate that in 1989 the total earned premiums for all kinds of insurance policies written by Randy, commencing in 1981 through 1989, was $801,291. In 2001, the total was $1,400,911.84. This indicts a substantial increase in Randy’s business during the period of the party’s marriage, but it also does not show which, if any, of those policies being served in 2001 pertain to policies written prior to 1989. The burden of establishing that an asset is non-marital is on the party claiming it to be so.

Thus, the equitable distribution of marital and non-marital assets, based on the record, was as follows:

Former Former
Asset Husband Wife
Residence $ 20,000.00 $ 20,000.00
Vehicles 1,000.00 15,000.00
18,000.00
Funds and Investments 97,585.16 55,110.00
IRS Refund 2,740.00 2,740.00
Georgia Property 6,250.00 6,250.00
Insurance Business 100,000.00 100,000.00
TOTAL $245,575.16 $199,090.00

Considering both the parties’ assets which they deemed marital and the assets they agreed were non-marital (the $42,000.00 in investments and accounts and their undisputed values), the insurance business and the Georgia property which the court found was marital property and the values the court determined based on disputed evidence of the value of the business and the undisputed evidence as regards the Georgia property, it appears the court roughly equally divided the parties’ marital property. Given the length of the parties’ marriage and the contributions of Elizabeth to the marriage, we find no abuse of the court’s discretion in taking this first step in resolving this case, as to the equitable distribution of the marital assets.

II. Alimony Award.

Neither party comes to this court content with the trial court’s determination that Elizabeth is entitled to rehabilitative alimony in the amount of $350.00 per month for four years. Randy argues that because Elizabeth holds two insurance licenses and can obtain employment in the insurance business which could eventually pay her as much or more than she can earn in social work, her plan to obtain a four year college degree and qualify herself to become employed by the state as a social worker is flawed and in addition, she failed to present sufficient specific evidence at the trial to justify the amount awarded, as well as the length of time needed to earn her degree. Elizabeth contends she should have been awarded permanent alimony and that the rehabilitative alimony award is too meager to enable her to achieve her goal.

At the trial, Elizabeth testified that when the parties married she was working in an Allstate office in St. Petersburg, Florida, supporting herself, earning $6.85 per hour. She was also attending a junior college with the goal of obtaining a four-year degree so that she could become a social worker, having done an internship with HRS. She did not want to work in the insurance business, but after the parties married and moved to Titusville, at her husband’s request, and because he could not afford to pay an office worker, she obtained two different insurance licenses and worked with him to establish the agency business. However, she also continued to pursue her goal of obtaining a four-year degree, taking classes at a community college and obtaining an AA degree in 1992.

She then commenced classes at UCF and earned additional credits. At the time of the dissolution hearing, she needed an additional 42 credits to obtain her four-year degree. She testified that she had started taking classes at UCF after filing the petition for dissolution. It was still her goal to graduate with a four-year degree. She stated that it would take her three and one-half years to obtain that goal and the cost of tuition and books would be $700.00 per semester. Her four-year degree would enable her to earn $25,000.00 to $30,000.00 at an entry level job, in the field of social work. This would be more income than she had ever earned in her life.

She estimated that her living expenses, residing with her daughter in a new, smaller home, would be $3,898.67 per month, that her net income from part-time employment would be $303.40. She also testified that she would have to obtain health insurance for herself at $212.00 per month and that if she had to work full time, she would need an additional $120.00 per month for extended child care for the parties’ daughter.

The court made some findings regarding rehabilitative alimony which tend to support its award. It found Elizabeth is presently attending UCF and needs 44 credits to complete her four-year degree, that she normally takes six hours per semester, and that she estimates it will take her four to five years to obtain her degree. It also found that Elizabeth has sought consistently during the marriage to obtain a four-year degree, with the same goal in mind. The court also found that her net monthly income is $303.40 and that Randy’s net monthly income is $5,995.42.

A court has broad discretion in determining alimony awards, which unlike child support awards, have no guidelines, although they are limited by what is rational and supported by the evidence. For marriages with the duration of approximately twelve years, like the one in this case, courts say this is in the upper range of the “gray area” where there is no presumption for or against an award of permanent alimony. Both rehabilitative and permanent alimony awards are appropriate. In such cases, findings to support alimony awards or the denial of them, are essential in order to permit meaningful appellate review.

The transition from being primarily a housewife and childcare giver, to becoming self-supporting, as a matter of common sense and practicality, cannot be expected to occur overnight. Randy, at the dissolution trial, agreed that a temporary award to Elizabeth would be “okay.” And, at the hearing held on the parties’ motions for rehearing, counsel for Randy agreed that rehabilitative alimony was appropriate, “given all the factors.” Although this court has not looked kindly on “bridge the gap” rehabilitative alimony awards in the past, in a proper case, it might do so in the future.

In this case, however, the traditional concept of an award of rehabilitative alimony appears plausible and the court made sufficient fact findings to support a rehabilitative award. The former wife is relatively young and in good health and has been actively pursuing her four-year degree prior to and during the marriage. She was enrolled in UCF at the time of the dissolution, with the same goal in mind. She testified specifically as to the time needed and the cost of tuition and books to obtain her degree and that it would enhance her earning ability to a degree far above anything she had ever earned before, all of which the court incorporated in its final judgment.

Randy’s argument that Elizabeth could earn more working in an insurance agency office at a job she never wanted, so rehabilitation was not required, was rejected by the trial court. In answer to this argument, the court said that a person with a four year college degree has far better earning prospects than one who lacks one, in whatever field Elizabeth chose to work in the future. We agree. Elizabeth should be permitted to follow her chosen career rather than one that was tolerated in order to provide support to Randy in starting his insurance business. See Short v. Short, 747 So.2d 411 (Fla. 5th DCA 1999).

However, we regret the absence of fact findings in this dissolution judgment that prevents us from addressing the propriety of the amount awarded as rehabilitative alimony. The $850.00 per month award over a period of four years exceeds the sum Elizabeth testified she needed for college expenses. But, in order to attend UCF and thus work only part time, is the $350.00 per month sum adequate to enable her to pay her living expenses?

The trial court may have imputed additional income to Elizabeth in order to conclude she would be able to support herself and attend college over that four-year span, with an award of only $350.00 per month. It made no findings in this regard, which was erroneous. It found that she was earning a minimal amount ($303.00 per month), which combined with the award of rehabilitative alimony, totals $653.00 per month. That does not appear to be a sufficient amount to enable her to reach her educational goal.

Nor does the potential income from her share of the marital assets appear sufficient for this purpose. A spouse should not be required to consume his or her share of marital assets received from equitable distribution as a means of support, if the other spouse has the ability to assist. The rehabilitative alimony award should be sufficient to furnish both college expenses per se, and cost of living support over the required time to permit the recipient spouse to attend the educational institution.

Further, the trial court made no expréss findings as to why it determined that permanent alimony for Elizabeth was inappropriate. It simply said that it was. In similar cases, permanent alimony has been awarded, based on a level of support sufficient to maintain the stay-at-home spouse near the marital standard of living. However, there are facts in this case which could support a denial of a permanent alimony award: Elizabeth is relatively young in comparison to her former husband; she is in good health; and she is highly motivated to take her place in the ranks of the better-employed. On remand, the trial court should also make appropriate findings to support its conclusion that permanent alimony is inappropriate.

III. Life Insurance as Security for the Alimony and the Child Support Awards.

The trial court ordered the former husband to maintain the term portion of a $500,000.00 life insurance policy on his life in the amount of at least $250,000.00 for the benefit of the former wife, to secure his alimony obligation. It also found that the cost was “not prohibitive.” The court also required the former husband to maintain a $75,000.00 life insurance policy on his life to secure his child support obligation and to name the former wife as irrevocable beneficiary for the minor child.

Courts may require that child support and alimony awards be secured by life insurance on the life of the obligor. However, they require that there be evidence in the record and findings by the court as to the cost of the insurance being required, in order to establish that the obligor can obtain and afford such insurance coverage. In addition, in order to uphold requirements of life insurance as security for awards, reviewing courts require that there be special circumstances which justify a need for such requirements. In this case, the trial court made almost no findings on any of these matters other than that the cost was “not prohibitive.”

The testimony at trial regarding life insurance was very sparse. Randy testified that he currently had a total of $750,000.00 in life insurance and that his business paid the premiums for him. He estimated the cost for the several policies at $300.00 per month. For his $500,000.00 term life insurance policy, he estimated the cost at $190.00 per month. During her testimony, Elizabeth merely stated that she wanted the court to order- Randy to- maintain life insurance to secure her alimony award, but she gave no reason why there were special needs or considerations.

We conclude that testimony in the record supports the trial court’s conclusion that the former husband has life insurance in the amount being required and that the cost is clearly affordable, given his net income and the fact that his business is paying the premiums in addition to his salary. However, the trial court’s failure to make findings as ■ to special circumstances or needs for securing either the child support or alimony award and in the amounts being required, is error. On remand, the trial court must drop these insurance-as-security requirements, or make sufficient fact findings based on the record, to facilitate appellate review of these issues. Such special circumstances include a spouse potentially left in dire financial straits after the death of the obli-gor spouse due to age, ill health and/or lack of employment skills, obligor spouse in poor health, minors living at home, supported spouse with limited earning capacity, obligor spouse in arrears on support obligations, and cases where the obligor spouse agreed on the record to secure an award with a life insurance policy. It appears in this case that Elizabeth may have a greater need for life insurance to secure her share of the equitable distribution of the insurance business, which she was not to receive for eighteen months.

In any event, should the trial court determine, on remand, that there are special circumstances in this case justifying the requirement of life insurance to secure the child support award, we point out that it is error to name the former wife as the irrevocable beneficiary of the life insurance securing child support.

III. Attorney Fees and Costs.

The trial judge awarded Elizabeth one-half of her attorney’s fees and costs, $6,570.00. Orally, the judge complimented both attorneys for the professional manner in which the litigation had been handled and it expressly determined that Elizabeth’s attorney’s fees were reasonable and well earned, as to rate and time expended. Randy argues that no attorney’s fees and costs should have been awarded based on his superior income earning abilities, and Elizabeth argues Randy should have been required to pay all of her fees and costs, based on the parties’ disparate incomes.

The trial judge stated orally that the attorney’s fee award was based on the former husband’s superior financial ability to pay, due to his relatively much greater income. As noted above, the court found his net monthly earned income was almost $6,000.00, and the former wife’s was $303.40. Including the alimony award, her post-judgment income was $653.00. This is a considerable disparity.

The trial judge also stated orally that after the equitable distribution of the parties’ marital assets, the two parties were not in equal financial positions. Although Elizabeth was allocated some assets after equitable distribution, they were not sufficient to provide her with an income sufficient to make her financial situation comparable to Randy’s. The court’s equitable distribution gave Randy the income-earning business and Elizabeth a promise of a payout in eighteen months. However, due to the fact that she received some liquid assets by way of equitable distribution, the court must have reasoned that she has some ability to pay her own fees.

Based on our review of the record and the trial court’s oral statements on the record, we conclude that the court abused its discretion in not awarding the former wife all of her attorney’s fees in this case. See Ondrejack v. Ondrejack, 839 So.2d 867 (Fla. 4th DCA 2003); Akers v. Akers, 518 So.2d 292 (Fla. 5th DCA 1987). In order to pay her attorney’s fees the former wife will be required to expend the principal of her assets obtained from equitable distribution. This result is inequitable because the marital assets allocated to her are not substantial and the former husband has a far greater income and ability to pay. See Hill v. Hooten, 776 So.2d 1004 (Fla. 5th DCA 2001); Flemming v. Flemming, 742 So.2d 843 (Fla. 1st DCA 1999).

Conclusion.

We affirm the lower court’s judgment in regards to the valuation of the marital assets and the determination of their marital status and equitable distribution. However, we remand this cause to the trial court for additional findings regarding the amount of rehabilitative alimony awarded, the denial of permanent alimony and the necessity vel non for life insurance to secure the alimony and child support award. We also direct that the former wife be awarded the full amount of her attorney’s fees and costs. To do justice to the parties, the court may also consider delaying and making periodic the payout to the former wife for her interest in the insurance business and securing it with life insurance. See Makowski v. Makowski, 613 So.2d 924 (Fla. 3d DCA 1993).

AFFIRMED, in part; REVERSED and REMANDED in part.

GRIFFIN and ORFINGER, JJ„ concur.

      . The parties were married March 17, 1989 and Elizabeth filed her petition for dissolution on October 15, 2001.

        . Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004); Killius v. Killius, 701 So.2d 1245 (Fla. 5th DCA 1997). See also Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001).

      . See Vick v. Vick, 675 So.2d 714 (Fla. 5th DCA 1996).

      . Florida law holds otherwise. See § 61.075, Fla. Stat.; Ruberg v. Ruberg, 858 So.2d 1147 (Fla. 2d DCA 2003); Jensen v. Jensen, 824 So.2d 315 (Fla. 1st DCA 2002); Vaccaro v. Vaccaro, 677 So.2d 918 (Fla. 5th DCA 1996).

      . See Makowski v. Makowski, 613 So.2d 924 (Fla. 3d DCA 1993).

      . See Bijlani v. Pioneer House Associates, 719 So.2d 377 (Fla. 3d DCA 1998); Ferry v. Abrams, 679 So.2d 80 (Fla. 5th DCA 1996).

      . See § 61.075(7), Fla. Stat.; Robertson v. Robertson, 593 So.2d 491 (Fla.1991); Dal Ponte v. Dal Ponte, 692 So.2d 283 (Fla. 1st DCA 1997); Livingston v. Livingston, 633 So.2d 1162 (Fla. 1st DCA 1994); Howes v. Howes, 613 So.2d 551 (Fla. 4th DCA 1993).

      . The court expressly found Elizabeth's contributions were undisputed as to the marriage through her efforts of working in Randy’s office for five years with little or no pay and, part time, until 1995 and thereafter devoting herself to caring for the parties' child, school and homemaking.

      .§ 61.075(1) and (8), Fla. Stat.

      . See Martinez v. Martinez, 761 So.2d 433 (Fla. 3d DCA 2000); Nelson v. Nelson, 721 So.2d 388 (Fla. 4th DCA 1998); Lynch v. Lynch, 695 So.2d 843 (Fla. 3d DCA 1997); Parker v. Parker, 655 So.2d 233 (Fla. 1st DCA 1995). See also Abrams, I Fla. Family Law, Ch. 31.05(2)(c).

      . See Calderon v. Calderon, 730 So.2d 400 (Fla. 5th DCA 1999); Ingle v. Ingle, 640 So.2d 223, 224 (Fla. 5th DCA 1994); Martin v. Martin, 582 So.2d 784 (Fla. 5th DCA 1991); Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980). See also Abrams, I Fla. Family Law, Ch. 31.04(1)(b).

      . See Vick v. Vick, 675 So.2d 714, 717 (Fla. 5th DCA 1996).

      . See Layeni v. Layeni, 843 So.2d 295 (Fla. 5th DCA 2003).

      . See McCarty v. McCarty, 710 So.2d 713 (Fla. 1st DCA 1998).

      . Two semesters per year, over four years at $700 per year, totals $5,600.00.

      . See Walker v. Walker, 818 So.2d 711 (Fla. 2d DCA 2002); Vitalis v. Vitalis, 799 So.2d 1127 (Fla. 5th DCA 2001); Vick v. Vick, 675 So.2d 714 (Fla. 5th DCA 1996).

      . See Frechter v. Frechter, 548 So.2d 712 (Fla. 3d DCA 1989); Rovenger v. Rovenger, 474 So.2d 286 (Fla. 3d DCA 1985).

      . See Makowski v. Makowski, 613 So.2d 924 (Fla. 3d DCA 1993).

      . See Short v. Short, 747 So.2d 411 (Fla. 5th DCA 1999); Florida Dissolution of Maniage, § 13.24 (6th ed.2002).

      . See Levy v. Levy, 862 So.2d 48 (Fla. 3d DCA 2003); Knoff v. Knoff, 751 So.2d 167 (Fla. 2d DCA 2000); Mesa v. Mesa, 652 So.2d 456 (Fla. 4th DCA 1995); Zeigler v. Zeigler, 635 So.2d 50 (Fla. 1st DCA 1994); Gregoire v. Gregoire, 615 So.2d 694 (Fla. 2d DCA 1992).

      . See Henin v. Henin, 767 So.2d 1284 (Fla. 5th DCA 2000).

        .See § 61.08(3), Fla.Stat.; Sobelman v: Sobelman, 541 So.2d 1153 (Fla.1989); Richardson v. Richardson, 722, So.2d 280 (Fla. 5th DCA 1998); McDaniel v. McDaniel, 653 So.2d 1076 (Fla. 5th DCA 1995).

      . See Layeni v. Layeni, 843 So.2d 295 (Fla. 5th DCA 2003); Pinion v. Pinion, 818 So.2d 557 (Fla. 2d DCA 2002); Guerin v. DiRoma, 819 So.2d 968 (Fla. 4th DCA 2002); McDaniel v. McDaniel, 653 So.2d 1076 (Fla. 5th DCA 1995); Frechter v. Frechter, 548 So.2d 712 (Fla. 3d DCA 1989).

      . Lapham v. Lapham, 778 So.2d 487 (Fla. 5th DCA 2001); Richardson v. Richardson, 722 So.2d 280 (Fla. 5th DCA 1998).

      . Moorehead v. Moorehead, 745 So.2d 549 (Fla. 4th DCA 1999).

      . Hill v. Hooten, 776 So.2d 1004 (Fla. 5th DCA 2001).

      . See Parker v. Parker, 655 So.2d 233 (Fla. 1st DCA 1995); Tassone v. Tassone, 492 So.2d 1086 (Fla. 2d DCA 1986).

      . The Rowe factors. See Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985), modified by, Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990).

      . Compare Zahringer v. Zahringer, 813 So.2d 181 (Fla. 4th DCA 2002); Morris v. Morris, 743 So.2d 81 (Fla. 5th DCA 1999).


author: PER CURIAM.

text:
    Connie D. BORGARD, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D04-459.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2004.
    Connie D. Borgard, Satellite Beach, Pro Se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

This is an administrative appeal of a final order of the Unemployment Appeals Commission affirming a determination of an appeals referee that the appellant, Connie D. Borgard, was disqualified from receiving unemployment benefits because she voluntarily left her employment without good cause attributable to the employer. We affirm.

The appeals referee heard the conflicting testimony of the witnesses and made findings contrary to the position of Ms. Borgard. Credibility determinations are within the discretion of the hearing officer, as finder of fact. See Andrus v. Florida Dept. of Labor and Employment Sec., 379 So.2d 468 (Fla. 4th DCA 1980). As there was competent substantial evidence to support the findings of the referee, we will not reverse. See Studor Inc. v. Duren, 635 So.2d 141 (Fla. 2d DCA 1994).

AFFIRMED.

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


text:
    Ronnie E. CONNOLLY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2717.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2004.
    Ronnie E. Connolly, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, ’ Daytona Beach, for Appellee.
   THOMPSON, J.

Twelve years ago, defendant Ronnie E. Connolly entered a plea to the charge of lewd assault upon a child. He now appeals the summary denial of his latest Rule 3.800(a) motion to correct illegal sentence. We begin by noting that Connolly’s successive factual claims about his earlier Georgia sentences are not cognizable under Rule 3.800(a). See, e.g., Hawn v. State, 840 So.2d 352 (Fla. 5th DCA 2003) (claim that sentence was illegal based on allegedly erroneous assessment of certain score-sheet points was improperly brought under Rule 3.800(a) because error, if it exists, cannot be ascertained from face of the record). Connolly’s 15-year sentence is legal.

Since this was Connolly’s eighth appearance in this court for this case, we ordered him to show cause why he should not be precluded from filing further pro se motions. See State v. Spencer, 751 So.2d 47 (Fla.1999). We have carefully considered Connolly’s response and find that good cause has not been shown.

Therefore, in order to conserve limited judicial resources, Connolly is prohibited from filing any additional pro se appeals, pleadings, motions and petitions relating to his conviction and sentence in the underlying case. See, e.g., Gaffney v. State, 878 So.2d 470 (Fla. 5th DCA 2004); Proctor v. State, 869 So.2d 752 (Fla. 5th DCA 2004); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995); see also Baker v. State, 878 So.2d 1236 (Fla.2004) (limit on successive claims is necessary to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice). Any pleadings or papers filed in this Court regarding said conviction and sentence must be reviewed and signed by an attorney licensed to practice in this state. The Clerk of the Fifth District Court of Appeal is directed not to accept any further pro se pleadings or filings from Ronnie E. Connolly in Osceola County, Ninth Judicial Circuit Court Case No. 92-265.

AFFIRMED; FUTURE PRO SE FILINGS PROHIBITED.

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


text:
    Ricky SIMMONS a/k/a Robert Abrams, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2952.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2004.
    Ricky Simmons, Okeechobee, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Simmons appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He seeks to have his 1998 conviction for felony petit theft set aside based on facts he claims were unknown to him and which could not have been ascertained through the exercise of due diligence. The trial court ruled that Simmons essentially raises a scrivener’s error, so despite the fact that the motion was untimely, the court granted relief by amending the judgment to reflect that Simmons was adjudicated guilty of felony petit theft and not robbery.

It thus appears that Simmons received the relief he sought. However, it also appears that the 84 month sentence which he received in this case exceeds the statutory maximum sentence for felony petit theft, a third degree felony. See § 812.014(3)(c), Fla. Stat.

Accordingly, we affirm this cause without prejudice to Simmons to file a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), challenging the legality of his sentence.

AFFIRMED.

SAWAYA, C.J., and PALMER, J., concur.


author: HAZOURI, J.

text:
    Miles J. GOPMAN, as attorney of record for: Theresa Bertram and Beresford Bertram, her husband; Missionwood Miramar Condominium Association, Inc.; Lilouti Mansaram; Unknown Parties in Possession # 1; Unknown Parties in Possession # 2; if Living, and all Unknown Parties Claiming by, Through, Under and Against the above Named Defendant(S) who are not known to be Dead or Alive, Whether Said Unknown Parties May Claim an Interest as Spouses, Heirs, Devisees, Grantees, or other Claimants, Appellant, v. WASHINGTON MUTUAL BANK, F.A. Successor in Interest to Homeside Lending, Inc., f/k/a Bancboston Mortgage Corporation, f/k/a Stockton, Whatley, Davin and Company, Appellee.
    No. 4D03-3726.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.

      Miles J. Gopman, Miami, pro se.
    Susan C. Minor of Shapiro & Fishman, L.L.P., Aventura, for appellee.
   HAZOURI, J.

In this foreclosure action instituted by appellee, Washington Mutual Bank, the Bertrams filed motions to dismiss the foreclosure action for alleged violations of stays in effect under the Fair Debt Collection Practices Act and the Bankruptcy Act. Appellee responded to the motions and also filed a motion for sanctions for the failure of the Bertrams’ attorney, Miles J. Gopman, appellant herein, to give appellee notice of the bankruptcy. In its motion, appellee asserted that it should be awarded attorney’s fees as a sanction.

At the hearing on the motion for sanctions, the trial court found appellant in contempt. It entered an order granting appellee’s motion for sanctions and ordering appellant to be incarcerated for five days due to in-court misconduct.

We have examined the transcript of the hearing and found nothing in the record to support the trial court’s finding of any misconduct on the part of appellant. Furthermore, incarceration as a sanction on such a motion is not authorized.

The incarceration in the instant case could only be imposed based upon a finding of direct criminal contempt. There is no evidence in the record to support such a finding. Furthermore, the trial court deprived appellant of due process in that it did not follow the procedures outlined in Florida Rule of Criminal Procedure 3.880. The trial court did not inform appellant of the accusation against him, ask whether he had any cause to show why he should not be held in contempt or permit him to present evidence excusing or mitigating the circumstances. We hereby reverse the trial court’s order granting sanctions and finding appellant in contempt.

REVERSED.

STEVENSON and GROSS, JJ., concur.


author: WARNER, J.

text:
    Randall EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1617.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant appeals a sentence of fifteen years for escape, claiming that it is grossly disproportionate to the crime. A constitutional claim that a punishment is cruel and unusual requires a proportionality analysis, which appellant has not argued. See Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Hale v. State, 630 So.2d 521, 525-26 (Fla.1993). He simply points to the specific facts, which show that his “escape” constituted only the attempt to bolt out of the courtroom after he received a stiffer sentence than he expected for another crime. However, a proportionality analysis focuses on the crime charged and the legislatively imposed punishment for the crime, not the specific facts of a particular case. See Solem, 463 U.S. at 290-92, 103 S.Ct. 3001. We cannot say that a sentence of fifteen years for the crime of escape violates the cruel and unusual punishment clause, and appellant has given us no argument to suggest otherwise.

SHAHOOD and MAY, JJ., concur.


text:
    Peter CAPAZZI, Appellant, v. Sadith Mendoza GOLDBERG, f/k/a/ Sadith Mendoza, Appellee.
    No. 3D04-573.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2004.

      Sheldon Zipkin, North Miami Beach, for appellant.
    Robert D. Slewett, North Miami Beach, and Steven K. Schwartz, Boca Raton, for appellee.
    Before LEVY, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

Because one or more issues of material fact exist, summary judgment was improper. See Holl v. Talcott, 191 So.2d 40 (Fla.1966). In particular, paragraph 7 of the trial court’s order and its use of equivocal language indicates issues of fact to be determined. Accordingly, we reverse the order granting summary judgment and remand for further proceedings. See Moore v. Morris, 475 So.2d 666 (Fla.1985).

Reversed and remanded.


text:
    SANDMARK INVESTMENTS, INC., Appellant, v. In re the ESTATE OF Rose HEIMOWITZ, Appellee.
    No. 3D04-900.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2004.
    Larson and Jones and Steven L. Jones, Miami Shores, for appellant.
    Ruden, McClosky, Smith, Schuster & Russell, P.A., and John H. Pelzer and Brigid F. Cech (FtLauderdale), for appellee.
    Before COPE and GODERICH, JJ., and NESBITT, JOSEPH, Senior Judge.
   PER CURIAM.

Affirmed. See Spohr v. Berryman, 589 So.2d 225 (Fla.1991).


text:
    Barnaby Jean NEPTUNE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1899.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2004.
    Barnaby Jean Neptune, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed as being legally insufficient.