author: ALTENBERND, Chief Judge. DAVIS, Judge,

text:
    Patrick Antonio CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1716.
    District Court of Appeal of Florida, Second District.
    April 28, 2004.

      James Marion Moorman, Public Defender, and Tonja R. Vickers, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Chief Judge.

Patrick Antonio Chambers appeals his judgment for aggravated assault with a firearm and tampering with evidence and his sentence of 26.7 years in prison. We affirm the tampering with evidence conviction. We also affirm Mr. Chambers’ conviction for aggravated assault with a firearm. Mr. Chambers was charged with attempted second-degree murder with a firearm and convicted of aggravated assault with a firearm as a lesser-included offense. If this court followed its decisions in Mateo v. State, 757 So.2d 1229 (Fla. 2d DCA 2000), and Wilburn v. State, 840 So.2d 384 (Fla. 2d DCA 2003), we would be obligated to reverse this conviction because aggravated assault is not a category one necessarily included lesser offense of attempted second-degree murder and the information did not contain allegations making this offense a proper category two permissive lesser-included offense. See, e.g., State v. Weller, 590 So.2d 923 (Fla.1991) (explaining distinction between necessary and permissive lessers). We conclude, however, that Mateo and Wilburn were issued without adequate consideration of the supreme court’s decision in Ray v. State, 403 So.2d 956 (Fla.1981). Under the rule announced in Ray, Mr. Chambers’ conviction must be affirmed. We recede from our decisions in Mateo and Wilburn to the extent that they conflict with Ray and this opinion.

The facts in this case are disputed, and we suspect that no version of the facts presented to the jury was entirely accurate. On March 21, 2002, Mr. Chambers knocked on the door of Marcia Radway’s apartment. Ms. Radway claimed that he forced his way in and told her that he had been hired to kill her. He pulled out a gun and threatened her with it. At the time of these events, Richard Blair was in the bathroom of the apartment. Mr. Chambers allegedly threatened him with the gun and told him not to come out of the bathroom. A struggle then occurred between Ms. Radway and Mr. Chambers in which the gun discharged and shot her in the leg. Mr. Chambers then fled from the apartment. At trial, Ms. Radway testified that she had not known Mr. Chambers prior to this burglary. Ms. Radway is Jamaican and when the police first arrived at the scene of this crime, she told them that another Jamaican named “Zeke” had shot her.

Mr. Chambers was arrested following a high-speed car chase during which he threw the gun involved in the shooting out the window of his car. Following his arrest, Mr. Chambers gave a recorded statement to the police in which he claimed that he and a man named “Dray” had gone to the apartment to purchase thirteen pounds of marijuana. Mr. Chambers stated that “Dray” was involved in the purchase of the marijuana in another room, while he merely waited in the living room. Mr. Chambers heard a scuffle in the other room and then a gunshot. Thereafter, the two men fled together. However, no one named “Dray” was ever located. The gunshot alerted neighbors to this event, and no neighbor saw anyone other than Mr. Chambers leave the apartment. It is interesting to note, however, that Mr. Blair left the apartment immediately after the shooting and did not return until the police had already begun their investigation.

The State charged Mr. Chambers with armed burglary of a dwelling, aggravated assault of Richard Blair, attempted second-degree murder of Ms. Radway, and tampering with physical evidence, i.e., the firearm. Mr. Chambers was found not guilty of the burglary and of the assault on Richard Blair. He was found guilty of tampering, but that conviction creates no issue for appeal.

Concerning the attempted second-degree murder of Ms. Radway, the jury was instructed on several lesser offenses. The trial court provided instructions on attempted manslaughter, aggravated battery, aggravated assault, felony battery, battery, and assault. As to both aggravated battery and aggravated assault, the jury was further permitted to determine on the verdict form (1) whether Mr. Chambers possessed a firearm, (2) whether Mr. Chambers discharged a firearm, and (3) whether the discharge of the firearm did or did not result in great bodily injury.

During the jury charge conference, the parties and the trial court discussed the lesser-included offenses. The trial court even had the lawyers revisit this issue near the end of the charge conference. Everyone agreed that the instructions and the verdict form were sufficient. No error concerning these instructions was preserved. Following the closing arguments in which the lesser-included instructions were not a significant factor, the jury returned its verdict finding Mr. Chambers guilty of an aggravated assault of Ms. Rad-way during which he possessed and discharged a firearm, causing her great bodily injury.

On appeal, Mr. Chambers argues that he could not be convicted of aggravated assault because aggravated assault is not a category one lesser-included offense of second-degree murder, and the information failed to allege the essential elements of aggravated assault. Without such allegations, aggravated assault could not be a category two lesser-included offense. He is correct that the State was not entitled to have the jury instructed on this lesser offense. The dispositive issue on appeal, however, is whether the inclusion of this unauthorized lesser offense in the instructions and on the verdict form was fundamental error. We conclude that it was not.

The development of this issue probably begins with Ray v. State, 403 So.2d 956 (Fla.1981). In Ray, the defendant was charged with sexual battery. The trial court instructed the jury on sexual' battery and a lewd and lascivious act, although a lewd and lascivious act was a not a proper lesser-included offense. Ray, 403 So.2d at 959. The jury convicted the defendant of a lewd and lascivious act, and the district court affirmed.

The supreme court accepted conflict, jurisdiction and framed the issue as follows: “[WJhether a defendant convicted of a crime for which he was not charged, but which was submitted to the jury as a lesser-included offense when in fact it was not, may challenge that conviction when he failed to object to the submission of that crime to the jury.” Ray, 403 So.2d at 958.

The supreme court held that it is not fundamental error to convict a defendant under an erroneous lesser included charge When he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other áffirmative action.

Ray, 403 So.2d at 961 (footnote omitted). In reversing Ray’s conviction, the supreme court determined that the lewd and lascivious offense in 1975 was not an offense that was of a lesser degree and penalty than sexual battery and that his counsel had neither requested nor relied upon the improper instruction. Thus, neither of the conditions had been met, and the court held it was fundamental error to convict Mr. Ray.

An extensive body of case law has developed from Ray. This court followed Ray in Thomas v. State, 820 So.2d 382 (Fla. 2d DCA 2002). In Thomas, we affirmed a conviction for driving under the influence (DUI) with serious bodily injury, even though this offense was not a lesser-included offense of DUI manslaughter as charged in the information. 820 So.2d at 384-85. The defendant had not objected to the instructions on the lesser offense, and the offense *was lesser in degree and penalty. Id.

As in Thomas, the information against Mr. Chambers did not allege all of the statutory elements of aggravated assault. However, he was afforded an opportunity to object and failed to do so. Continuing to apply the Ray analysis, we conclude that aggravated assault with a firearm, a second-degree felony, is lesser in degree and punishment than attempted second-degree murder with a firearm, a first-degree felony. Accordingly, under the holding in Ray, we affirm Mr. Chambers’ conviction.

On at least two prior occasions, this court has resolved cases that were controlled by Ray, without a proper analysis of that decision. See Mateo, 757 So.2d 1229; Wilburn, 840 So.2d 384. In Mateo, the defendant was charged with sexual battery using force likely to cause serious personal injury. 757 So.2d at 1230; see also § 794.011(3), Fla. Stat. (1997). He was convicted of aggravated battery. See § 784.045, Fla. Stat. (1997). Even though the defendant did not object to the instructions on this lesser offense and the offense was lesser in both degree and penalty, we reversed the conviction without any discussion of Ray. Mateo, 757 So.2d at 1230. Additionally, in Wilburn, we reversed an aggravated assault conviction because the information had not charged that the victim had been placed in fear by the defendant’s actions. Wilburn relies upon Mateo to reach this result. We now recede from those cases.

In Mateo, instead of citing to Ray, this court cited to three cases: State v. Von Deck, 607 So.2d 1388 (Fla.1992), State v. Gray, 435 So.2d 816 (Fla.1983), and Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA 1995).

Von Deck involved a conviction for an improper lesser-included offense; however, the error was a preserved error. The court was not required to perform a fundamental error analysis. 607 So.2d at 1389-90. Thus, Von Deck did not compel the result reached in Mateo.

Gray involved a conviction for an offense that the State intended to be the charged offense, not a lesser offense. In Gray, the defendant argued that the information was so defective that it completely failed to charge any crime. The supreme court ruled that it was a violation of due process and a fundamental error to convict a person upon an information or indictment that failed to charge any crime. Significantly, the court held that the information in Gray was sufficient to allege a crime. Gray was issued two years after Ray, and the supreme court made no effort to overrule or qualify Ray when it issued the later case. Gray, 435 So.2d at 818-20.

There can be little doubt that the district courts have extended the ruling in Gray to reach cases that can be compared to Ray. For example, in Velasquez, this court reviewed a conviction for a lesser-included offense in a case that had been tried without a jury. In Velasquez, the defendant was charged with attempted first-degree murder. At the end of the trial, the judge simply announced that the defendant was convicted of aggravated assault, which was not an available lesser-included offense. This court, relying upon Gray, reversed the conviction and remanded for a new trial in which the State apparently had the right to amend the information to allege the offense of aggravated assault.

Velasquez did not involve a case submitted to a jury with a verdict form including the improper lesser-included offense. Velasquez “did not present the opportunity to object to the trier of fact’s consideration of inappropriate lesser offenses in lieu of the main charge, an opportunity Ray finds to be significant.” Nesbitt, 819 So.2d at 994 n. 1. Thus, our opinion in Velasquez is distinguishable from Ray.

Even though we have no occasion to overrule Velasquez in this case, it should be noted that the information in Velasquez undoubtedly alleged a crime; it charged the primary offense of attempted first-degree murder. It simply did not charge the lesser-included offense. If the rule announced in Ray is intended to apply in nonjury cases, our ruling in Velasquez can be questioned. Similar criticism could be aimed at our opinions in C.R.C. v. State, 842 So.2d 235 (Fla. 2d DCA 2003), and Mauldin v. State, 696 So.2d 801 (Fla. 2d DCA 1997).

There is, of course, a significant distinction in trial tactics between a jury trial and a nonjury trial. It is often prudent for a defendant in a jury trial to give the jury as many options as possible to choose a lesser-included offense. Thus, offenses that technically are not category two lesser-included offenses may be presented to the jury without objection because the defendant can benefit from these lesser-included offenses. To allow a defendant to affirmatively rely on an improper lesser-included instruction and then request reversal on appeal allows that defendant to reduce the criminal justice system to a game that Judge Sharp has described as “heads I win, tails you lose.” Weber v. State, 602 So.2d 1316, 1319 (Fla. 5th DCA 1992).

In this case, for example, it seems highly unlikely that a jury would have selected the next lesser offense, felony battery, if aggravated assault had been omitted. Given the undisputed evidence that the victim sustained a bullet wound to her thigh, without this option it seems far more likely that the jury would have selected aggravated battery as the appropriate conviction. Thus, we hesitate to find fundamental error in these situations because it is likely that the defendant has not been harmed by the unpreserved error. See generally Reed v. State, 837 So.2d 366, 369-70 (Fla.2002) (fundamental error must be harmful).

Accordingly, we now recede from Mateo and Wilburn to the extent that they conflict with Ray and this opinion. By this opinion, we intend to align this district with the other district courts of appeal. See Nesbitt v. State, 819 So.2d 993, 994 (Fla. 5th DCA 2002), review granted, 837 So.2d 411 (Fla.2003); Herise v. State, 763 So.2d 393 (Fla. 3d DCA 2000); Tolbert v. State, 679 So.2d 816 (Fla. 4th DCA 1996) (en banc). Ironically, we must also recognize conflict with Levesque v. State, 778 So.2d 1049 (Fla. 4th DCA 2001), because that decision relied upon our decision in Mateo.

Affirmed.

FULMER, WHATLEY, CASANUEVA, SALCINES, STRINGER, SILBERMAN, COVINGTON, KELLY, CANADY, VILLANTI, and WALLACE, JJ., Concur.

DAVIS, J., Dissents with opinion in which NORTHCUTT, J., Concurs.

DAVIS, Judge,

Dissenting.

I respectfully dissent. I do not believe that the holding of Ray, 403 So.2d 956, should be applied to these facts or even that it is the law. Accordingly, I disagree with the majority’s conclusion that this court should recede from our opinions in Mateo, 757 So.2d 1229, and Wilburn, 840 So.2d 384.

One must start this analysis with the premise that to charge an individual with one offense and convict him of another, even though the offenses are closely related, is error. See Penny v. State, 140 Fla. 155, 191 So. 190 (1939). Additionally, “a conviction on a charge not made by the indictment or information is a denial of due process of law.” State v. Gray, 435 So.2d 816, 818 (Fla.1983) (citing Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)). The issue then is whether such an error is fundamental and thus can be raised for the first time on appeal or whether it can be waived by a defendant’s failure to object to a jury instruction and verdict form charging an offense not alleged in the charging document.

As indicated by the majority, Ray states that it is not fundamental error to convict a defendant of a permissible lesser-included offense that is less serious with regard to permitted punishment than the originally charged offense if the defendant fails to object to the jury instruction and verdict form for this lesser offense. Ray further states that the defendant’s failure to object during the trial will be deemed a waiver of any objection. However, those statements are dicta. Ray was charged with sexual battery, a second-degree felony. He was convicted of lewd assault, also a second-degree felony. Since the “lesser included” charge was of the same degree of felony, the supreme court held that the error was fundamental and that “silence alone is not sufficient to demonstrate a waiver.” Ray, 403 So.2d at 961. After reaching that conclusion, the court went on to determine that although the error in that case was fundamental,

it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.

Id. (footnote omitted). That determination was not essential to resolve the issue before the court in that case and thus was dicta.

Furthermore, the same court decided Gray, 435 So.2d 816, two years later. In Gray, the court determined that if the charging document fails to allege all the elements of the offense with which the defendant is charged, a subsequent conviction is subject to challenge at any time as such is fundamental error. In reaching this conclusion, the court relied on the principle of the denial of due process. “However, a conviction on a charge not made by the indictment or information is a denial of due process of law.” Id. at 818 (citing Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937)).

The majority would distinguish Gray from Ray by pointing out that Ray specifically addresses the case of the lesser-included offense, while Gray deals only with situations where the information is defective in charging the original offense. I disagree with such reasoning. In both situations, the error is a denial of due process. If, as Gray states, a conviction cannot rest upon an information that fails to allege all the elements of the offense charged because the conviction is fundamental error, how does the conviction of a lesser offense based on an information that does not allege the elements of that offense become less than fundamental? The denial of due process is the same for both situations.

Furthermore, such a distinction potentially leads to an untenable result. A defendant whose counsel fails, after months of discovery and pretrial preparation, to recognize that the information does not allege all the necessary elements of the charged offense, and who proceeds to trial and is convicted, may challenge the defective information for the first time on appeal because the error is deemed fundamental. See Gray, 435 So.2d 816. However, a defendant whose counsel skillfully marshals the facts and the law so as to convince the fact finder to convict the defendant of only a permissive lesser-included offense is not able to challenge the information for the first time on appeal because the error is not fundamental. The defective information in the first instance is deemed to be fundamental error because the defendant has not been apprised of the charge against which he must defend. This is true even though counsel had ample time to review the information, the evidence, and the law in preparation for trial. In the second instance, the error is not fundamental even though defense counsel may have been first made aware that the State was asking for an instruction on the permissible lesser-included offense during the charge conference. This distinction requires counsel to immediately recognize the deficiency of the charging instrument and make a proper objection or have his silence considered a waiver of his client’s due process objection. See Ray, 403 So.2d 956. This result is troublesome because an information that fails to allege an essential element of the offense creates fundamental error simply because the defendant had no notice of the offense with which he was being charged. The fundamental nature of this error is not alleviated by the attorney’s success at having the offense reduced to something less than the original charge.

Unless the Florida Supreme Court recedes from Gray, I would argue that the majority’s reliance on Ray is misplaced because the purported holding is dicta and was directly contradicted by the subsequent holding in Gray. Accordingly, I would not recede from our opinions in Mateo, 757 So.2d 1229, and Wilburn, 840 So.2d 384, but rather, I would grant Mr. Chambers the relief he has requested.

      . §§ 775.087(c), 784.021, Fla. Stat. (2002).

      . § 918.13, Fla. Stat. (2002).

      .There is also dicta in Guffey v. State, 837 So.2d 1068 (Fla. 2d DCA 2003), that might support a reversal.

      . We appreciate the dissent's argument that the rule announced in Ray is dicta. The supreme court itself, however, stated that it was announcing this rule as a holding of the case. See Ray, 403 So.2d at 961. We are not inclined to disregard that statement. See F.B. v. State, 852 So.2d 226 (Fla.2003); Puryear v. State, 810 So.2d 901 (Fla.2002).

      . It is useful to note that these tests are disjunctive. The judgment must be affirmed if either test is satisfied and must be reversed only if neither is satisfied.

      . See, e.g., James v. State, 845 So.2d 996 (Fla. 5th DCA 2003) (holding instruction on manslaughter not fundamental error because it is lesser in degree and punishment than second-degree murder); Nesbitt v. State, 819 So.2d 993 (Fla. 5th DCA 2002) (holding instruction on aggravated assault not fundamental error because defense counsel expressly agreed to instruction as lesser-included of attempted second-degree murder), review granted, 837 So.2d 411 (Fla.2003) (granting' jurisdiction based on conflict with Mateo and Levesque v. State, 778 So.2d 1049 (Fla. 4th DCA 2001)); Lewellen v. State, 682 So.2d 186 (Fla. 2d DCA 1996) (holding instruction on petit theft was not fundamental error because it was lesser in degree and punishment than grand theft of a motor vehicle); Pointec v. State, 614 So.2d 570 (Fla. 5th DCA 1993) (holding instruction on simple criminal trespass not fundamental error in prosecution for felony trespass because defense counsel relied on simple trespass during closing argument); Roberts v. State, 461 So.2d 212 (Fla. 1st DCA 1984) (holding instruction on criminal mischief not fundamental error because defense counsel requested it during prosecution for second-degree arson); Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983) (holding instruction on aggravated assault not fundamental error because it is lesser in degree and punishment than attempted robbery with a firearm); see also Lane v. State, 861 So.2d 451 (Fla. 4th DCA 2003) (holding instruction on aggravated battery fundamental error as lesser-included offense of attempted second-degree murder because both offenses are second-degree felonies and defense counsel did not request or rely on instruction).

      . Second-degree murder is a first-degree felony. See § 782.04(2), Fla. Stat. (2002). An attempt to commit that crime reduces it to a second-degree felony. See § 777.04(4)(c), Fla. Stat. (2002). The use of a firearm, however, reclassifies the offense as a first-degree felony. § 775.087, Fla. Stat. (2002). Moreover, aggravated assault is a third-degree felony. See § 784.021(2), Fla. Stat. (2002). The use of a firearm, however, reclassifies the offense as a second-degree felony. See § 775.087(c).

      . Velasquez was decided prior to the enactment of the Criminal Appeal Reform Act, see § 924.051(3), Fla. Stat. (2003), and the supreme court's decisions in Reed v. State, 837 So.2d 366 (Fla.2002), and F.B. v. State, 852 So.2d 226 (Fla.2003). Whether the holding in Velasquez has survived these changes is not an issue for today.

      . On at least one occasion we have suggested that Ray did not apply in a nonjury case. See C.W. v. State, 861 So.2d 1243, 1244 (Fla. 2d DCA 2003).

      . In a nonjury trial, there may be less notice and no strategy involved when a trial court simply announces at the end of the trial that it is convicting the defendant of an uncharged crime that defense counsel has not suggested in closing arguments. See C.W., 861 So.2d 1243 (concluding motion for rehearing sufficient to preserve issue following bench trial). If a defense attorney objects at the first opportunity, i.e., when the trial court makes its oral ruling convicting the defendant of an uncharged crime, there is a risk that the trial judge will immediately correct the error by convicting the defendant of a greater crime. Thus, the nonjury trial has a dynamic that may well support our ruling in Velasquez.

      . We note that although the Fourth District characterized Levesque as a "rogue case” in Lane v. State, 861 So.2d 451 (Fla. 4th DCA 2003), Lam was not heard en banc, and the Fourth District has not receded from Levesque. Levesque is one of the cases the supreme court has relied upon to accept review of Nesbitt.

      . I would agree that should a defendant request the instruction and verdict form or should counsel argue the questioned lesser offense to the defendant’s favor, the error should be considered invited error and relief should be denied.


source: Caselaw Access Project

author: FULMER, Judge.

license: Public Domain

text:
    Trent Marcia TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1222.
    District Court of Appeal of Florida, Second District.
    April 28, 2004.
    James Marion Moorman, Public Defender, and Andrea S. Manthorne, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Trent Marcia Taylor appeals his convictions for two counts of aggravated child abuse and one count of child abuse. Taylor initially raised two issues on appeal, neither of which have merit. We directed supplemental briefing on the question of whether Taylor’s conviction on count three violates double jeopardy notwithstanding the fact that the trial court did not impose a sentence on this count. Both count two, which alleged a violation of section 827.03(2)(b), Florida Statutes (2002), and count three, which alleged a violation of section 827.03(l)(a), address the same act committed against the same child. The State concedes error. As this court held in Kurtz v. State, 564 So.2d 519, 521 (Fla. 2d DCA 1990), disapproved of on other grounds, Novaton v. State, 634 So.2d 607 (Fla.1994), “trial courts are not permitted to enter an adjudication of guilt for an offense when a sentence could not legally be imposed under section 775.021(4), Florida Statutes (Supp.1988), for that same offense.”

Accordingly, we affirm the convictions and sentences on counts one and two and reverse the conviction on count three with directions that the judgment on count three be vacated.

Affirmed in part, reversed in part, and remanded with directions.

NORTHCUTT and CASANUEVA, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    In the Interest of K.A., K.A., and K.A., Minor children. K.A., father, Appellant, v. Department of Children and Family Services, Appellee. S.A., mother, Appellant, v. Department of Children and Family Services, Appellee.
    Nos. 2D03-866, 2D03-876.
    District Court of Appeal of Florida, Second District.
    April 28, 2004.

      Jean Marie Henne, Winter Haven, for Appellant K.A.
    Michael S. Farrell of Dodds & Farrell, P.A., Lakeland, for Appellant S.A.
    Douglas Sherman, Department of Children and Family Services, Bartow, for Ap-pellee.
   ALTENBERND, Chief Judge.

K.A. and S.A. appeal a judgment terminating their parental rights to three children. We affirm that portion of the judgment that terminates the parents’ rights to the youngest child, an infant who suffered abuse as a result of egregious conduct when he was in the custody of one or both of the parents. See § 39.806(1)(f), Fla. Stat. (2002). We reverse the order terminating the parents’ rights to the two older children because the Department of Children and Family Services failed to present clear and convincing evidence that termination was in the manifest best interests of these two children and that termination was the least restrictive means to protect them.

K.A. and S.A. are the unmarried parents of three minor children. On May 19, 2001, when the children were ages four years, two years, and two months, the mother brought the infant to the emergency room. When an examination of the baby revealed severe injuries, the Department was notified and began an abuse investigation. The Department immediately placed all three children with a maternal aunt. On August 15, 2001, the Department filed a “petition alleging dependency and for termination of parental rights” against both parents, seeking termination of the parents’ rights to all three children based upon the abuse of the infant. The Department did not offer the parents a case plan.

At the termination trial in November 2002, the Department sought to terminate the parents’ rights to all three children pursuant to section 39.806(l)(f), which permits termination when a parent engages in egregious conduct or has the opportunity and capability to prevent and knowingly fails to prevent egregious conduct that threatens the life, safety, or physical, mental or emotional health of the child or the child’s siblings. The evidence presented by the Department focused primarily on the infant: the extent of the infant’s injuries, who may have inflicted the injuries, and how the injuries may have occurred. There was little evidence presented that related to the other two children.

According to the evidence at trial, on May 19, 2001, the mother brought her two-month-old infant to the emergency room because his leg was swollen. She told emergency room personnel that she thought the baby might be having a reaction to ant bites. According to the emergency room physician, the baby did not initially appear uncomfortable and the leg was only mildly to moderately swollen; however, the child would cry in pain when his leg was moved. A series of diagnostic tests revealed the infant had a spiral fracture of his femur, a skull fracture, and three rib fractures. These injuries were in various stages of healing, leading the medical experts to opine that they occurred on at least three separate occasions. The pediatrician concluded the injuries were consistent with shaken baby syndrome.

It is not clear how the baby suffered these injuries or who specifically inflicted them. However, the testimony was undisputed that the infant was always in the care of the mother or father, with the exception of one time when the baby was left with the mother’s sister while the mother watched a movie, and a second time when the baby was left with a family friend for twenty minutes while the mother went to the grocery store. Both of the babysitters denied inflicting any abuse on the child, and there was no evidence to suggest they were responsible for any of the child’s injuries.

The parents also denied intentionally inflicting the abuse. They presented various hypotheses as to how the injuries might have occurred, but these theories were rejected by the medical experts based upon the types of injuries the child had sustained. The parents also denied knowing about the baby’s injuries until the date the child was brought to the emergency room. However, a medical expert who reviewed the baby’s medical records opined that anyone changing the child’s diaper should have been aware of the femur fracture.

As to the two older children, there was no evidence that these children had been abandoned, abused, or neglected. When these two children were initially sheltered, a full medical examination of them revealed no injuries with the exception of some minor scarring of unknown origin on the middle child’s buttocks.

The eldest child was in a Head Start program for two years in 2000 and 2001. The manager of the program testified on behalf of the mother. According to the manager, she saw the mother and the children five days a week when the mother dropped off the eldest child at the Head Start program and also saw them during home visits. The eldest child rarely, if ever, missed a day of preschool. The mother often talked to the manager to see how the eldest child was progressing in the program. The mother consistently brought the other two children into the Head Start facility. All three children were neatly and appropriately dressed, with the eldest child in clothes that were often ironed and starched. The children’s hair was groomed. The manager described the mother as a good parent who was concerned about her children.

While these proceedings were pending, the parents were permitted supervised visitation with the children at the home of the maternal aunt who was caring for them. The mother visited with the children daily during the year and a half before trial and provided significant assistance in the children’s care, in the hopes that she could provide stability for them and minimize the disruption in their lives. The father also visited regularly, as often as three times per week.

The child protective services caseworker visited the children’s home on a monthly basis and often saw the mother there. The caseworker testified the maternal aunt’s home was well kept and the children were “very well taken care of.” She was aware that the mother visited the children daily. She described the mother’s interaction with the children as “very positive” and related how the mother would play with the children, eat with them, and braid their hair. She knew the mother sometimes brought over clothing for the children or other things they might need.

The guardian ad litem, who had investigated the case for over a year and who had significant experience working with handicapped children and “at-risk moms,” opposed the termination of the parents’ rights to the three children. Rather, the guardian recommended readjudicating the children dependent, retaining their placement with the maternal aunt, and permitting the parents to enter into a case plan with the Department with a goal of reunification. The guardian noted that the parents adequately provided for the children’s housing, clothing, health, and nutritional needs. The guardian was mainly concerned that the parents receive education and support regarding child development, i.e., help in determining what level of supervision and interaction was appropriate for children in different developmental stages. The guardian described the family as “close knit” and indicated that the children were very bonded with their parents. The guardian opined that “with assistance, the parents would be very capable parents.”

At the conclusion of the trial, the trial court entered an order terminating the parental rights of the mother and father to all three children. In determining that termination was appropriate, the trial judge focused primarily on the abuse of the infant. The trial judge expressed concern that the parents had suggested their eldest child may be to blame for the injuries to the infant. As to the middle child, the trial judge made no specific findings of fact.

There is no question that the abuse of the infant in this case constituted egregious conduct that threatened the life and health of this child. See N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 1001 (Fla. 1st DCA 2003) (holding egregious conduct occurred when infant was shaken forcefully enough to break bones); M.C. v. Dep’t of Children & Family Servs., 814 So.2d 449 (Fla. 4th DCA 2001) (holding egregious conduct occurred with one-year-old child who had broken arm, skull fracture, bruising, healing rib fracture, and other indications of neglect). In the context of egregious conduct, this court has held that “where there is evidence that a child suffered abuse by one or both of the parents present,” there is clear and convincing evidence to support the termination of parental rights of both parents. See M.W. v. State, Dep’t of Children & Families (In re B.J.), 737 So.2d 1227, 1228 (Fla. 2d DCA 1999) (involving child who was seriously abused at time when both parents were at home with child). Although it is not clear whether the mother, the father, or both inflicted the injuries on this infant, the parents were the only persons to have the opportunity to inflict the totality of these injuries. Moreover a parent who was not present during, or who did not participate in, physical abuse may still have their parental rights terminated if they knowingly failed to protect the child from egregious abuse. See C.S. v. State, Dep’t of Health & Rehabilitative Servs. (In re B.S.), 697 So.2d 914 (Fla. 2d DCA 1997). There was expert testimony that any caretaker changing the infant’s diaper should have been aware of the femur fracture, which appeared to be more than two weeks old. Thus the circuit court could reasonably conclude that one parent perpetrated the abuse and the other parent permitted the abuse or failed to timely seek appropriate medical treatment for the child.

Further, the abuse of this infant on numerous occasions in the first two months of his life supports the trial court’s finding that termination of the parents’ rights is in this child’s manifest best interest and is the least restrictive means available to protect him from continued abuse. See In re T.M., 641 So.2d 410, 413 (Fla.1994) (holding that in cases involving severe or continuing abuse or neglect, “the termination of parental rights without the use of plans or agreements is the least restrictive means”); see also § 39.806(2), Fla. Stat. (2002) (providing, “[r]easonable efforts to preserve and reunify families shall not be required if a court of competent jurisdiction has determined that any of the events described in paragraphs (l)(e)-(i) have occurred”). We thus affirm the trial court’s termination of the parents’ rights to this child.

We reverse, however, the portion of the judgment that terminates the parental rights of the mother and father to the two older children. We recognize that section 39.806(l)(f), Florida Statutes (2002), permits a court to terminate parental rights not only to a child who has suffered abuse by egregious conduct, but also to any siblings of such a child. As such, the Department established a valid statutory ground for terminating these parents’ rights to all three of their children. Further, the supreme court has held that a court can constitutionally terminate the parental rights of parents to a child who has not yet been abused based upon the parents’ past abuse of another child. See Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991).

The existence of a ground for termination, however, does not end the inquiry. Before parental rights to a child can be permanently and involuntarily severed, there must be clear and convincing evidence that termination is the least restrictive means to protect the child; in other words, that reunification with the parent poses a substantial risk of significant harm to the child. Padgett, 577 So.2d at 571. Here, there was no competent, substantial evidence that the parents posed a substantial risk of significant harm to the two older children. In fact, there was substantial evidence to the contrary. There was no nexus or predictive relationship between the past abuse of the infant and any prospective abuse of the older children. See A.D. v. Dep’t of Children & Family Servs. (In re G.D.), 870 So.2d 235, 238, 2004 WL 574022, *2 (Fla. 2d DCA 2004). The two older children have not been abandoned, abused, or neglected. By all accounts, they have been well cared for and are closely bonded to their parents. The parents do not suffer from any physical or mental illness or condition that would inhibit their proper care of these children in the future. Further, there is no indication these children were aware of the abuse or present when it occurred or that it had any psychological impact upon them. Under these circumstances, the trial court’s conclusion that the termination of the parents’ rights to the two older children was the least restrictive means of protecting them was not supported by clear and convincing evidence and was clearly erroneous.

Finally, the Department failed to establish by clear and convincing evidence that termination of the parents’ rights to the two older children is in the manifest best interest of these children. See § 39.810, Fla. Stat. (2002). Again, the evidence at trial focused primarily upon the infant. By all accounts, the two older children were not abused. A cursory look at the factors involved in determining a child’s manifest best interests under section 89.810 suggests that were the court to apply these factors to the two older children, individually, the evidence would establish that the best interests of these children would not be served by termination.

It is worth emphasizing that in cases where the Department seeks to terminate parental rights to numerous children, the trial court cannot treat the children as an amorphous group in which the best interests of one will meet the interests of all. Rather, the trial court must individually determine whether the termination of parental rights to each child is permitted by the statute, is the least restrictive means to protect that child, and is in that child’s manifest best interests.

We affirm the judgment to the extent it terminates the parental rights of the parents to the youngest of the three children. We reverse that portion of the judgment that terminates the parents’ rights to the two older children. On remand, if the children are readjudicated dependent, the Department should develop and the trial court should adopt a case plan for these parents with a goal of reunification of the parents and their two older children.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and COVINGTON, JJ., Concur.

      . We recognize that there is a conflict among the district courts of appeal regarding the proper analysis to be applied in cases involving a child who has not been abused but may become a victim of prospective abuse. The Fifth District has held that statutory changes in the laws regarding termination now establish a presumption that the past egregious abuse of one child is predictive of future abuse, thus altering Padgett’s approach in prospective abuse cases. See Dep’t of Children & Families v. B.B., 824 So.2d 1000, 1007 (Fla. 5th DCA 2002); A.B. v. Dep’t of Children & Families, 816 So.2d 684 (Fla. 5th DCA 2002). The Fifth District considers this presumption constitutionally permissible, as long as the parent is provided an opportunity to rebut the presumption. See also C.D. v. Dep’t of Children & Family Servs. (In re T.S.), 855 So.2d 679 (Fla. 2d DCA 2003) (reversing termination but noting that court agrees with conclusion in A.B. that section 39.806(1)(i) is facially constitutional). The Fourth District, however, has concluded that such a presumption is unconstitutional because it relieves the state of its burden to demonstrate that the reunification of parent and child poses a substantial risk of harm to that child. See F.L. v. Dep’t of Children & Families, 849 So.2d 1114 (Fla. 4th DCA 2003). We need not address the facial constitutionality of section 39.806(l)(f) because we conclude that, irrespective of who bore the burden of proof, the trial court's determination that the parents posed a substantial risk of significant harm to the two older children was clearly erroneous.

      . We note that Judge Sawaya has suggested that the "manifest best interests” considerations set forth in section 39.810, Florida Statutes (2002), effectively supplant the least restrictive means test discussed in Padgett. See T.P. v. Dep’t of Children & Families, 860 So.2d 1084, 1092-95 (Fla. 5th DCA 2003) (Sawaya, C J., concurring). Certainly the two concepts are interrelated.


author: THOMPSON, J.

text:
    Gregory HOOVER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-582.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.
    Rehearing Denied Aug. 20, 2004.

      Gregory Hoover, Punta Gorda, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Gregory Hoover appeals his conviction for possession of cocaine. Because we conclude that the cocaine was found after an illegal, continued detention of Hoover, we reverse.

At the suppression hearing, police officer Marcus Bullock testified that he had been randomly checking license tags for suspended licenses or warrants. A records check revealed that the owner of the vehicle Hoover was driving had a suspended driver’s license. Upon stopping Hoover, Bullock asked Hoover if he was the registered owner, and Hoover indicated that he was not. Bullock explained to Hoover that the registered owner of the vehicle had a suspended license, and Hoover replied that he knew he looked “suspicious.” Bullock testified that Hoover looked nervous: his hands were fidgeting, he was sweating, and his speech was stumbling. Bullock checked Hoover’s name and birth date, and verified that Hoover had a valid driver’s license. Bullock explained that he asked Hoover to exit the vehicle because Bullock was concerned for his safety due to Hoover’s behavior and felt that Hoover would attempt to flee in the vehicle. Upon Hoover’s exiting the vehicle, a small piece of white, chalky substance sitting on Hoover’s leg fell to the ground. The substance field-tested positive for cocaine.

In its order denying Hoover’s motion to suppress evidence, the trial court concluded:

Based upon the totality of the circumstances, including the Defendant’s presence in a high-drug area, his mannerisms, his unlikely story for being in an area, the short time of the encounter, and officer safety, this Court finds that the deputy had a reasonable suspicion that the Defendant was committing a criminal act and was merely starting his investigation when the drugs were found. See Eldridge v. State, 817 So.2d 884 (Fla. 5th DCA 2002).

Hoover concedes that the initial stop by the police officer was valid, but argues that the validity of the initial stop does not justify the police officer’s continued detention of Hoover. We agree that Bullock’s initial stop of Hoover was valid. See Smith v. State, 574 So.2d 300, 301 (Fla. 5th DCA 1991). However, absent a well-founded suspicion of criminal activity, once a police officer accomplishes the purpose of a traffic stop, a continued detention is illegal. Cresswell v. State, 564 So.2d 480 (Fla.1990).

In the instant case, Bullock satisfied the purpose of his stop once he verified that Hoover had a valid driver’s license. After a review of the record, we disagree with the trial court’s finding that Bullock had grounds to continue Hoover’s detention. See Sims v. State, 622 So.2d 180 (Fla. 1st DCA 1993) (concluding that defendant’s aimless driving in a high drug area and nervous behavior after the stop .did not justify detention beyond issuance of open container citation). Additionally, the trial court cited Eldridge v. State, 817 So.2d 884 (Fla. 5th DCA 2002), to support its rulings, but we held in Eldridge that the defendant’s nervousness upon being stopped, his failure to provide a specific street address, and his possession of a large roll of $100 bills did not establish a basis for the officer to detain the defendant past the time necessary to issue a citation. Id. at 888-889.

Accordingly, we reverse the order denying the motion to suppress and remand with directions to discharge Hoover.

REVERSED with directions.

GRIFFIN and MONACO, JJ., concur.


author: CANADY, Judge.

text:
    James A. BARBER, Appellant, v. Maureen G. GOODWIN f/k/a Maureen G. Barber, Appellee.
    No. 2D03-689.
    District Court of Appeal of Florida, Second District.
    May 5, 2004.

      William S. Chambers, IV, of McKinley & Chambers, P.A., Bartow, for Appellant.
    Debra J. Sutton of the Law Office of Debra J. Sutton, P.A., Bartow, for Appel-lee.
   CANADY, Judge.

James A. Barber appeals a final order modifying child support and awarding attorney’s fees to Maureen G. Goodwin, his former wife. Barber raises two issues. First, he argues that the order does not contain sufficient findings to support the trial court’s determination concerning the modification of child support. On this issue, we conclude that Barber’s argument is without merit and therefore affirm the trial court’s determination. Second, Barber argues that the order does not contain sufficient findings to support the award of attorney’s fees to Goodwin. On this issue, we conclude that reversal of the order is required.

The portion of the court’s order awarding attorney’s fees simply states that Barber “shall contribute to Goodwin’s attorney’s fees and costs by paying $750 to counsel for Goodwin.” The order contains no findings establishing the basis for the award of fees. The trial court’s failure to set forth such findings in its order was error.

“[A] trial court cannot decide the issue of attorney’s fees without findings as to one spouse’s ability to pay fees and the other spouse’s need to have fees paid.” Perrin v. Perrin, 795 So.2d 1023, 1024 (Fla. 2d DCA 2001) (citing Schlafke v. Schlafke, 755 So.2d 706 (Fla. 4th DCA 1999)); see also § 61.16(1), Fla. Stat. (2002) (“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.”). As the supreme court has explained in Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997), a trial court’s determination regarding entitlement to fees under section 61.16(1) may also be based on findings concerning “any factor necessary to provide justice and ensure equity between the parties.” Once the trial court has determined that there is an entitlement to fees, the court must set forth findings regarding the factors that justify the specific amount awarded. See Shields v. Shields, 502 So.2d 1349 (Fla. 2d DCA 1987); see also Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985).

Here, the trial court’s order has no findings establishing the basis for the entitlement to fees and no findings establishing the basis for the specific amount awarded for fees. Accordingly, we reverse the award of fees and remand for further proceedings. On remand, the trial court shall enter an order setting forth the necessary findings with respect to the entitlement to fees, as well as the necessary findings regarding the determination of the amount awarded.

Affirmed in part, reversed in part, and remanded.

FULMER and COVINGTON, JJ., concur.


author: DAVIS, Judge.

text:
    Robert F. SUMMERALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3777.
    District Court of Appeal of Florida, Second District.
    May 5, 2004.
    Robert F. Summerall, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Robert F. Summerall challenges his designation as a sexual predator under the Florida Sexual Predators Act (“the Act”), section 775.21, Florida Statutes (2003). He argues that the Act is unconstitutional as a violation of procedural due process. We affirm. See Milks v. State, 848 So.2d 1167 (Fla. 2d DCA), review granted, 859 So.2d 514 (Fla.2003). In so doing, we certify conflict with the Third District’s opinion in Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

Affirmed; conflict certified.

NORTHCUTT and VILLANTI, JJ., concur.


author: VILLANTI, Judge.

text:
    Dorothy MANUEL, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 2D03-4546.
    District Court of Appeal of Florida, Second District.
    May 7, 2004.
    Rehearing Denied June 10, 2004.

      Jeffrey D. Grabel of Bay Area Legal Services, Inc., Dade City, for Appellant.
    Josefina Tomayo, District Legal Counsel, Tallahassee, and Keith J. Ganobsik, Assistant District Legal Counsel, Largo, for Appellee.
   VILLANTI, Judge.

Dorothy Manuel challenges a Department of Children and Family Services (DCFS) hearing officer’s determination that she is not eligible to receive temporary cash assistance benefits for the dependent children who were placed in her care under the supervision of DCFS. Because the hearing officer ignored the plain language of the statute setting forth the eligibility requirements for receiving temporary cash assistance, we reverse.

Ms. Manuel has had physical and legal custody of her stepsister’s three minor children since 1995 when the children were declared dependent and placed with Ms. Manuel as a nonrelative placement by DCFS. On May 14, 2003, Ms. Manuel applied for temporary cash assistance on behalf of the children. DCFS denied the request for temporary cash assistance because, it determined, the dependent children were not within a “specified degree of blood relationship” to Ms. Manuel as required by section 414.095(2)(a)(4), Florida Statutes (2003), and as that term is defined by DCFS’s interpretive manual. The interpretive manual sets forth what degree of blood relationship is required for family members who are living together to be eligible for cash assistance. According to this interpretive manual, because the minor children are related to Ms. Manuel only through Ms. Manuel’s stepsister, the children do not meet the blood relationship requirements to receive temporary cash assistance.

Ms. Manuel appealed the decision, and a hearing was held on July 18, 2003. At the hearing, DCFS’s senior public assistance specialist conceded that the children were living in a setting approved by DCFS. Nevertheless, she testified, DCFS would never consider whether the children were residing in a setting approved by DCFS as a condition of eligibility. Rather, DCFS would base its determination on the criteria set forth in its interpretive manual, and specifically on whether the children were within a certain degree of blood relationship to Ms. Manuel. Consequently, although the hearing officer found that the children were residing in a setting approved by DCFS, it still determined that the interpretive manual provided no other basis for the children to receive temporary cash assistance than their “liv[ing] in the home of a specified relative.” Because the children did not live in the home of a specified relative according to the dictates of the interpretive manual, the hearing officer determined the children were ineligible for temporary cash assistance.

Section 414.095(2)(a) provides the eligibility requirements for those seeking temporary cash assistance. Along with other requirements not relevant to our analysis, the statute requires a minor child to reside “with a custodial parent or parents or with a relative caretaker who is within the specified degree of blood relationship as defined under this chapter, or in a setting approved by the department.” § 414.095(2)(a)(4) (emphasis added).

DCFS does not dispute the children’s eligibility under any of the criteria set forth in this section other than their being “within the specified degree of blood relationship.” Ms. Manuel counters that the children’s failure to fall within the specified degree of blood relationship does not preclude their eligibility to receive temporary cash assistance because the children reside “in a setting approved by the department.” Thus, the proper interpretation of section 414.095(2)(a)(4) controls the outcome of this appeal.

An agency’s interpretation of the statute it is charged with enforcing is normally entitled to great deference. Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002). However, if the agency’s interpretation conflicts with the plain and ordinary meaning of the statute, such deference is not required. Id.; Fla. Hosp. v. Agency for Health Care Admin., 828 So.2d 844, 847 (Fla. 1st DCA 2002). Moreover, when the language of the statute under interpretation is unambiguous and has a plain and ordinary meaning, the plain meaning should be given effect. Fla. Hosp., 823 So.2d at 848.

The language of section 414.095(2)(a)(4) is unambiguous. Its plain and ordinary language deems a child eligible for temporary cash assistance if she or he resides with a custodial parent or parents or other relative caretaker within the specified degree of blood relationship or if she or he resides in a setting approved by the department. “[W]ithin the specified degree of blood relationship” modifies other “relative caretaker”; thus, a child residing with a relative caretaker within a certain degree of blood relationship to the child is eligible for temporary cash assistance. In addition, a child living “in a setting approved by the department” is eligible for assistance. The disjunctive “or” in the statute mandates that both scenarios can provide a basis for eligibility. Living “in a setting approved by the department” is a means of eligibility that has nothing to do with being within the specified degree of blood relationship. By stating that DCFS would never consider this means of temporary cash assistance eligibility, DCFS indicated that it customarily ignores an unambiguous statute.

This court may set aside an agency decision when the agency has “erroneously interpreted a provision of law and a correct interpretation compels a particular action.” § 120.68(7)(d), Fla. Stat. (2003); see also § 120.68(7)(e)(4) (allowing appellate review of an agency’s exercise of discretion that was “[ojtherwise in violation of a constitutional or statutory provision”). Because the DCFS hearing officer’s erroneous interpretation of section 414.095(2)(a)(4) provided the sole basis for his determination that the children were not eligible for temporary cash assistance benefits, we reverse and remand with instructions that the children be awarded benefits.

Reversed and remanded with instructions.

NORTHCUTT and DAVIS, JJ., Concur.

      . Under section 414.0252(3), "Department” as it is used in section 414.095 means the "Department of Children and Family Services.” DCFS does not dispute that the children were residing in a setting it had approved. Indeed, the children reside with Ms. Manuel under DCFS's protective supervision. Moreover, the hearing officer determined that the children are in fact residing in a setting approved by DCFS, although the hearing officer rejected the contention that the children were residing in a setting approved by DCFS "pursuant to [section] 414.095(2)(a)(4)" as conclusory.

      . This court has previously chastised DCFS for its mishandling of certain cases and particularly for its failure to follow its legislatively mandated objectives. See Dep’t of Children & Family Servs. v. D.N. (In re D.N.), 858 So.2d 1087, 1094 (Fla. 2d DCA 2003). We can see no logical justification for DCFS to place children in a supervised setting and then deny them their means of subsistence. Further, that an unambiguous statute trumps an agency’s interpretive manual is so obvious to us that we find any other position untenable.


author: SILBERMAN, Judge.

text:
    Paula D. GEER, Appellant, v. David Neal JACOBSEN, Brian James Almengual, and Almengual & Warner, P.A., Appellees.
    No. 2D03-3963.
    District Court of Appeal of Florida, Second District.
    May 7, 2004.

      Brett Alan Geer of the Geer Law Firm, L.C., Tampa, for Appellant.
    No appearance for Appellees.
   SILBERMAN, Judge.

Paula Geer appeals the trial court’s non-final order setting aside a default and default judgment. Because the order is one granting relief under Florida Rule of Civil Procedure 1.540, we have jurisdiction. See Fla. R.App. P. 9.130(a)(5). We reverse because the appellees, Brian James Al-mengual and Almengual & Warner, P.A. (together referred to as Almengual), failed to establish excusable neglect and a meritorious defense sufficient to permit the trial court to vacate the default and default judgment.

In March 2003 after Geer filed a lawsuit for damages, Almengual served a notice of appearance and a motion for extension of time in which to respond to the complaint. Almengual did not request a specific amount of time for the extension, did not set the motion for extension of time for hearing, and did not otherwise respond to the complaint.

On April 8, 2003, Geer served an amended complaint. After Almengual failed to respond to the amended complaint, Geer served a motion for the trial court to enter a default. Almengual did not respond or take any action to prevent the entry of a default, and on May 19, 2003, the trial court entered a default. Geer then served a motion for a default judgment. On June 3, 2003, the trial court entered judgment in Geer’s favor.

On the same day that the judgment was entered, Almengual served an unsworn motion to set aside or vacate default. Two days later, Almengual served an unsworn motion to set aside or vacate default judgment. Although the motion to set aside or vacate default asserted that Almengual had “a meritorious defense to the above captioned matter,” neither that motion nor the motion to set aside or vacate default judgment stated the basis of any defense to Geer’s claim.

On June 26, 2003, the trial court conducted a hearing on Almengual’s motions. Although Almengual’s attorney asserted that there had been no service of process, the trial court noted that returns of service had been filed reflecting that service had been accomplished. Almengual’s attorney then stated that jurisdiction and service would not be contested. When the trial court observed that no affidavits had been filed by Almengual in support of the motions, Almengual’s attorney stated that he had an affidavit with him asserting that a meritorious defense existed based on lack of jurisdiction and insufficient service. After the trial court pointed out that Almen-gual had waived any challenge to jurisdiction and service, the attorney requested permission to present testimony to demonstrate the existence of a meritorious defense. Over Geer’s objection the trial court granted the request, and Almengual’s attorney testified.

The trial judge asked the first question, which was whether the contents of the motion to set aside or vacate the default were true. The attorney stated that they were. The judge then directed Geer’s attorney to proceed with cross-examination, during which Almengual’s attorney testified that the meritorious defense was “[t]hat there is no basis for any fees and that 57.105 applies in this case. That was the matter I was researching to find.” He added that Geer’s claim was frivolous. The testimony added little else of significance concerning any meritorious defense. The record reflects that Brian Almengual was present at the hearing, but he did not testify.

The judge stated that even though Al-mengual’s attorney “didn’t quite dot his I’s and cross his T’s,” he was satisfied that Almengual had established the necessary elements to set aside the default judgment. The judge then entered the order setting aside the default and judgment.

Geer argues that the trial judge erred by granting relief because Almengual failed to establish excusable neglect and a meritorious defense which would support setting aside the default and judgment. We agree.

As an initial matter, the default and default judgment were properly entered. After Geer served the initial complaint, Almengual served a notice of appearance and a motion for extension of time. Because these documents were not responsive pleadings within the meaning of rule 1.190(a), Geer was entitled to serve an amended complaint once as a matter of course before Almengual served a responsive pleading. See Fla. R. Civ. P. 1.190(a); Picchi v. Barnett Bank of S. Fla., N.A., 521 So.2d 1090 (Fla.1988); Vanderberg v. Rios, 798 So.2d 806 (Fla. 4th DCA 2001); Ziff v. Stuber, 596 So.2d 754 (Fla. 4th DCA 1992).

Once Geer served her amended complaint, Almengual had ten days in which to respond. Fla. R. Civ. P. 1.190(a). Almen-gual’s previously filed notice and motion did not carry over as a response to the amended complaint, and Almengual did not otherwise respond to the amended complaint. See Fla. R. Civ. P. 1.190 committee notes, 1980 amend, (noting that a response is required to an amended pleading); Abrams v. Paul, 453 So.2d 826 (Fla. 1st DCA 1984) (stating that an answer to the original complaint did not carry over as a response to the amended complaint).

Because Almengual failed to respond to the amended complaint, Geer served Al-mengual with notice of her application for entry of a default by the trial court, and the trial court properly entered a default pursuant to Florida Rule of Civil Procedure 1.500(b). See Picchi, 521 So.2d at 1091. Thereafter, Geer sought entry of a final judgment. The trial court properly entered a final default judgment as authorized under rule 1.500(e).

Once the default and default judgment were entered, it became Almen-gual’s burden to demonstrate excusable neglect, a meritorious defense, and due diligence in order for the trial court to vacate the default and the judgment. Coquina Beach Club Condo. Ass’n, Inc. v. Wagner, 813 So.2d 1061, 1063 (Fla. 2d DCA 2002); Merrill Lynch Mtg. Capital, Inc. v. Hallmark Indus., Inc., 627 So.2d 12, 13 (Fla. 2d DCA 1993). Our review of the order vacating the default and default judgment is for a gross abuse of the trial court’s discretion. See Merrill Lynch, 627 So.2d at 13; Garcia Ins. Agency, Inc. v. Diaz, 351 So.2d 1137, 1138 (Fla. 2d DCA 1977). Because the trial court granted relief, a higher standard is applied to overturn the decision than if the trial court had denied the motions. Lindell Motors, Inc. v. Morgan, 727 So.2d 1112, 1113 (Fla. 2d DCA 1999); Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206, 208 (Fla. 2d DCA 1990).

We recognize, as did the trial judge, that there is a strong preference for lawsuits to be determined on the merits and that courts should liberally set aside defaults under appropriate circumstances. See Marshall Davis, 558 So.2d at 207. However, the circumstances here did not support setting aside the default and the default judgment because Almengual failed to establish excusable neglect or a meritorious defense.

“Excusable neglect must be proven by sworn statements or affidavits. Unsworn assertions of excusable neglect are insufficient.” DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998) (citations omitted); see also Collins v. Collins, 519 So.2d 729, 730 (Fla. 2d DCA 1988). Almengual’s unsworn motion to set aside or vacate default stated that Almengual intended to defend the lawsuit, and “[n]o neglect was meant by failing to file an answer; rather, the Motion for Enlargement of Time was filed in order to properly research and file” a motion to dismiss. The unsworn motion to set aside or vacate default judgment provided no significant additional information demonstrating excusable neglect.

Although Almengual’s attorney gave sworn testimony at the hearing, his testimony also fell woefully short of establishing excusable neglect. At best, he was under the wrong impression that he was not required to respond to the amended complaint because he had served a motion for extension of time and a notice of appearance directed to the original complaint. As previously discussed, those documents were insufficient to constitute a response to the amended complaint. The attorney’s errors, even if constituting mistakes of law, tactical errors, or judgmental mistakes, do not constitute excusable neglect. See Fla. High Sch., Activities, Inc. v. Latimer, 750 So.2d 762, 763 (Fla. 3d DCA 2000); State Farm Mut. Auto. Ins. Co. v. Isom, 681 So.2d 1170, 1172 (Fla. 5th DCA 1996). Similarly, an attorney’s inadvertence or ignorance of the rules does not constitute excusable neglect. Spencer v. Barrow, 752 So.2d 135, 138 (Fla. 2d DCA 2000); Carter v. Lake County, 840 So.2d 1153, 1158 n. 6 (Fla. 5th DCA 2003).

Concerning a meritorious defense, it must be asserted either by a pleading or in an affidavit, and a general denial is insufficient to demonstrate the existence of a meritorious defense. Schauer v. Coleman, 639 So.2d 637, 639 (Fla. 2d DCA 1994); see also Collins, 519 So.2d at 730. If a defendant is relying on a factual defense to obtain relief from a default judgment, the ultimate facts establishing the defense must be set forth in a verified answer, sworn motion, or affidavit, or by other competent evidence. Westinghouse Elevator Co., A Div. of Westinghouse Elec. Corp. v. DFS Constr. Co., 438 So.2d 125, 126-27 (Fla. 2d DCA 1983). While an unverified pleading may be sufficient to establish a legal defense to support relief from a default judgment, the movant must “show legal grounds constituting said meritorious defense.” Westinghouse, 438 So.2d at 126. For example, in American Network Transportation Management, Inc. v. A Super-Limo Co., 857 So.2d 313, 315 (Fla. 2d DCA 2003), this court found that the defendant sufficiently demonstrated the existence of a legal defense by alleging that the plaintiff failed to state a cause of action and that both the statute of limitations and laches applied. On the other hand, a conclusory assertion that a meritorious defense exists is insufficient. Hill v. Murphy, 872 So.2d 919, 921 (Fla. 2d DCA 2003).

Here, Almengual did not file a pleading or an affidavit setting forth a meritorious defense. Instead, the motions simply contained the conclusory statement that a meritorious defense existed and that a motion to dismiss would be filed. The testimony by Almengual’s attorney added little as he simply asserted, without detail or explanation, that Geer was not entitled to recover attorney’s fees, that Geer’s claim was frivolous and subject to sanctions, and that he intended to file a motion to dismiss. These conclusory assertions were insufficient because they did not set forth a material issue of fact or establish legal grounds constituting a meritorious defense.

Because Almengual did not carry the burden to demonstrate excusable neglect and the existence of a meritorious defense, we reverse and remand for the trial court to reinstate the default judgment.

Reversed and remanded.

STRINGER and CANADY, JJ., Concur.

      . This court directed the appellees to file an answer brief or the appeal would proceed without it. The appellees did not file an answer brief.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Karen S. JOHNSON and Charles Johnson, Appellees.
    No. 2D02-1846.
    District Court of Appeal of Florida, Second District.
    May 12, 2004.
    Rehearing Denied July 15, 2004.

      Tracy Raffles Gunn of Fowler White Boggs Banker P.A., Tampa, for Appellant.
    Michael S. Finch, St. Petersburg, for Appellees.
   FULMER, Judge.

State Farm Mutual Automobile Insurance Company appeals from a final judgment entered after a jury verdict in favor of Karen Johnson, plaintiff below, on her uninsured motorist claim. State Farm argues that the trial court erred in admitting expert testimony that trauma from an automobile accident was the legal cause of Mrs. Johnson’s fibromyalgia. We conclude that the expert testimony was properly admitted and therefore affirm.

In October 1996, Mrs. Johnson was rear-ended by an uninsured driver. After the accident, Mrs. Johnson developed progressively debilitating symptoms. She was ultimately diagnosed as having fibromyalgia, a fact that is not disputed by State Farm. However, State Farm does dispute Mrs. Johnson’s contention that the accident was the legal cause of her condition.

Prior to trial, State Farm sought, under Frye v. United States, 293 F. 1013 (D.C.Cir.1923), to exclude the expert testimony that linked Mrs. Johnson’s fibro-myalgia to the accident. In its motion, State Farm asserted that the experts “should be stricken under the Frye test as none of these experts’ scientific opinions are generally accepted in the scientific community.” At the hearing on the motion, the parties did not argue whether Frye was applicable. Instead, their arguments concerned whether the scientific community’s failure to reach a generally accepted understanding of the physical mechanism that causes fibromyalgia requires the exclusion of expert opinion testimony that, within a reasonable degree of medical certainty, Mrs. Johnson’s fibro-myalgia resulted from the auto accident.

The parties agree that the cause (etiology) and the disease process (pathogenesis) of fibromyalgia are unknown to medical science. The parties also agree that while the etiology and pathogenesis are unknown, there is an established association between trauma and fibromyalgia. State Farm argues that because the medical cause is unknown, expert opinion testimony cannot be offered to prove that in this ease the accident trauma was the legal cause of Mrs. Johnson’s fibromyalgia. Mrs. Johnson argues on appeal that the doctors offered pure opinion testimony that is not subject to Frye. Therefore, the trial court’s decision to admit the expert testimony was right, but for the wrong reason. Based on our de novo review of the Frye issue in this case, see Castillo v. E.I. du Pont de Nemours & Co., Inc., 854 So.2d 1264, 1268 (Fla.2003), we agree.

“By definition, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques. Therefore, in the vast majority of cases, no Frye inquiry will be required — because no innovative scientific theories will be at issue.” U.S. Sugar Corp. v. Henson, 823 So.2d 104, 109 (Fla.2002) (citations omitted). In Henson, the supreme court reaffirmed that a Frye inquiry “must focus only on the general acceptance of the scientific principles and methodologies upon which an expert relies in rendering his or her opinion.” 823 So.2d at 110. Here, the medical experts rendered their opinions based on their clinical experience, Mrs. Johnson’s history, and the recognized relationship or association between trauma and the onset of fibromyalgia. State Farm did not challenge the doctors’ examination methods, their clinical practices, or Mrs. Johnson’s history. Nor would it have been successful. “[Djifferential diagnosis is the standard scientific technique of identifying the cause of a medical problem by eliminating likely causes until the most probable one is isolated. This technique has been found to have widespread acceptance in the medical community, to have been subjected to peer review, and to not frequently lead to incorrect results.” U.S. Sugar Corp. v. Henson, 787 So.2d 3, 19 (Fla. 1st DCA 2000), affirmed, 823 So.2d 104 (Fla.2002).

Mrs. Johnson’s experts did not base their opinions on a new or novel scientific test or procedure, and State Farm did not challenge the principles and methodologies that they did rely upon. Instead, State Farm challenged the opinions reached by the experts. But “Frye does not apply to ‘pure opinion testimony’ based solely on the expert’s personal experience and training.” Henson, 787 So.2d at 14 n. 10. As the supreme court explained, “the opinion of the testifying expert need not be generally accepted as well. Otherwise, the utility of expert testimony would be entirely erased, and ‘opinion’ testimony would not be opinion at all — it would simply be the recitation of recognized scientific principles to the fact finder.” Henson, 823 So.2d at 110.

We conclude that the testimony of Mrs. Johnson’s experts was properly admitted and therefore affirm.

COVINGTON and WALLACE, JJ., concur.


author: PLEUS, J. PLEUS, J.

text:
    ESTATE OF Ernesto VAZQUEZ, et al., Appellants, v. AVANTE GROUPS, INC., Appellees.
    No. 5D03-427.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    Opinion Denying Rehearing Aug. 20, 2004.

      Susan B. Morrison, Brian L. Thompson and Kimberly M. Kohn of Wilkes & McHugh, P.A., Tampa, for Appellants.
    Scott A. Mager and Elaine J. LaFlamme of Mager Law Group P.A., Fort Lauder-dale, for Appellees.
   PLEUS, J.

This is a nursing home case in which the Estate of Ernesto Vazquez appeals from a final judgment in favor of the defendants, Avante Groups, Inc. (“Avante”) and Avante at Leesburg, Inc., (“Leesburg”).

At the conclusion of the jury trial, Avante moved for a directed verdict which motion was granted. The court also granted Leesburg’s motion for a directed verdict on the issue of punitive damages. The jury returned a verdict in favor of Leesburg on the counts for negligence, wrongful death and a statutory claim under Chapter 400, Florida Statutes.

Of the various claims of error, only one merits discussion. The jury was instructed on the Chapter 400 claim that the alleged violations of Ernesto Vazquez’s rights must have resulted in his death.

In Beverly Enterprises-Florida, Inc. v. Knowles, 766 So.2d 335 (Fla. 4th DCA 2000), rev. granted, 789 So.2d 346 (Fla. 2001), the Fourth District Court of Appeal, in a unanimous en banc decision, held that a personal representative of a deceased nursing home resident may bring an action against a nursing home for violation of the Patient’s Bill of Rights only when the deprivation or infringement caused the resident’s death. Knowles is presently pending in the Florida Supreme Court.

This Court recently, in Estate of Youngblood v. Halifax Convalescent Center, Ltd., 874 So.2d 596 (Fla. 5th DCA 2004), reversed a judgment in favor of the nursing home on the basis, among others, that a personal representative can sue under Chapter 400, even though the deprivation does not cause the resident’s death. Youngblood certified conflict with Knowles.

The verdict on the negligence count is sustainable and accordingly is affirmed. We conclude that regardless of whether we apply Knowles or Youngblood, the allegations in the estate’s complaint as to Chapter 400 are virtually identical to those contained in the negligence count, and hence, any error in the jury instruction was harmless error.

The judgment of the court below is affirmed.

AFFIRMED.

PALMER and TORPY, JJ., concur.

ON MOTION FOR REHEARING

PLEUS, J.

The estate of Ernesto Vazquez seeks rehearing asserting, inter alia, that the panel opinion deviates from this court’s recent decision in Estate of Youngblood v. Halifax Convalescent Center, Ltd., 874 So.2d 596 (Fla. 5th DCA 2004), and overlooks numerous purported harmful errors committed during trial of its nursing home claims. We believe that further amplification of our decision is warranted.

The estate points out that in Young-blood, referenced in the panel opinion, this Court reversed and ordered a new trial on the compensatory and punitive damages claims, including the common law negligence count, even though the jury, as here, returned a defense verdict on the negligence count. What the estate overlooks, however, is that reversal of the negligence count in that case was predicated entirely on the existence of racially discriminatory use of peremptory challenges by the defense. That issue is not presented here, nor have we detected reversible error in connection with the common law negligence count. The estate urges that the verdict on common law negligence is against the manifest weight of the evidence, thus entitling it to a new trial, but we conclude, after thorough examination of the trial testimony, that the trial court did not abuse its broad discretion in denying the motion for new trial. See Brown v. Estate of Stuckey, 749 So.2d 490 (Fla. 2000); Cloud v. Fallis, 110 So.2d 669 (Fla. 1959); Dewitt v. Maruhachi Ceramics of America, Inc., 770 So.2d 709 (Fla. 5th DCA 2000).

The jury’s finding of no liability for compensatory damages on the negligence count precludes recovery of punitive dam-ages, see W.R. Grace v. Waters, 638 So.2d 502 (Fla.1994); Liggett Group Inc. v. Engle, 853 So.2d 434 (Fla. 3d DCA 2003), rev. granted, 873 So.2d 1222 (Fla.2004), so that the estate’s claim that the trial court re versibly erred in directing a verdict in favor of the defendants on punitive damages is rendered moot. -

The estate additionally pled a cause of action for violation’of Chapter 400, Florida Statutes (1999) which allows, in a proper case, for recovery of punitive damages. § 400.023(1), Fla. Stat. The question is whether the estate has established reversible error in connection with the adverse jury verdict rendered on that statutory cause of action.

As noted in the panel opinion, in Young-blood, this Court disagreed with Beverly Enterprises-Florida, Inc. v. Knowles, 766 So.2d 335 (Fla. 4th DCA 2000), rev. granted, 789 So.2d 346 (Fla.2001), and held that a personal representative can sue under Chapter 400, even though the deprivation or infringement did not cause the resident’s death. The trial court here instructed on the estate’s Chapter 400 claim that the alleged violations of Ernesto Vazquez’s rights must have resulted in his death.

This was error in light of Youngblood but we conclude it was not harmful error given the jury’s verdict on the negligence count. Close examination of the estate’s complaint reveals that the allegations asserting a violation of Chapter 400 virtually track those contained in the unsuccessful negligence count. The estate argues that the causes of action are entirely separate and distinct but we disagree, at least given the pleadings in this case. Further buttressing our conclusion is the fact that shortly after the estate filed this lawsuit, the Legislature clarified its intent in enacting section 400.022 when it amended section 400.023(2) to provide that a violation of section 400.022, Florida Statutes, is not considered negligence per se:

Nothing in this part shall be interpreted to create strict liability. A violation of the rights set forth in section 400.022 or in any other standard or guidelines specified in this part or in any applicable administrative standard or guidelines of this state or a federal regulatory agency shall be evidence of negligence but shall not be considered negligence per se.

See Chapter 2001-45, § 4, Laws of Florida.

See Palma Del Mar Condominium Ass’n No. 5 of St. Petersburg, Inc. v. Commercial Laundries of West Florida, Inc., 586 So.2d 315, 317 (Fla.1991) (legislature’s subsequent amendment of a statute may properly be used to ascertain the legislative intent behind an earlier version of the statute). See also Gamble v. State, 723 So.2d 905, 907 (Fla. 5th DCA 1999) (courts should consider subsequent legislation in arriving at a correct interpretation of a prior statute).

A negligence standard governs the Chapter 400 claim and based on nearly identical allegations the jury found no negligence on the part of the defendants. The trial court’s error in instructing the jury that it had to find that the deprivation or infringement must have resulted in Vazquez’s death, given the verdict on the negligence count, was harmless error.

Finally, after thorough consideration we conclude that the trial court did not abuse its discretion in the evidentiary rulings challenged by the estate on appeal. See Stewart & Stevenson Serv., Inc. v. Westchester Fire Ins. Co., 804 So.2d 584 (Fla. 5th DCA 2002). In particular, the estate’s proffered admission against interest made by the unidentified person at the nursing home facility was simply too vague to support a determination that the person was, in fact, an employee of the facility.

REHEARING DENIED.

PALMER and TORPY, JJ., concur.

      . Patient’s Bill of Rights.


text:
    Charles BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-131.
    District Court of Appeal of Florida, Second District.
    May 21, 2004.
    Rehearing Denied June 30, 2004.
   ALTENBERND, Chief Judge.

Charles Boyd appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

On June 8, 1994, a jury convicted Mr. Boyd of attempted second-degree murder with a deadly weapon. The trial court sentenced Mr. Boyd to seventeen years in prison. Mr. Boyd appealed, and this court affirmed his judgment and sentence in 1995. See Boyd v. State, 662 So.2d 936 (Fla. 2d DCA 1995) (table). On November 12, 1997, Mr. Boyd filed a motion for post-conviction relief pursuant to rule 3.850. The trial court denied the motion, and this court affirmed the denial. See Boyd v. State, 722 So.2d 197 (Fla. 2d DCA 1998) (table).

On November 4, 2003, Mr. Boyd filed this rule 3.800(a) motion, claiming that his sentence is illegal because it was vindictively imposed. He claims that the trial court judge told him at his sentencing hearing in 1994 that he should have taken the seven-year sentence that was offered to him prior to trial. He maintains that the trial court punished him for going to trial by imposing a seventeen-year term of imprisonment. The trial court denied the claim because Mr. Boyd’s sentence does not constitute an illegal sentence under Carter v. State, 786 So.2d 1173 (Fla.2001). We agree.

Mr. Boyd’s claim of vindictive sentence is not cognizable in a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). A sentence is illegal for purposes of rule 3.800(a) if it imposes punishment that no judge could possibly impose for the charged crime under the entire body of sentencing statutes without regard to the underlying factual circumstances. See Carter, 786 So.2d at 1181. In 1994, attempted second-degree murder with a deadly weapon was a first-degree felony that allowed a trial judge to impose a sentence well in excess of seventeen years’ imprisonment. See §§ 777.04(4)(d), 782.04(2), 775.087(1)(b), 775.082(3)(b), Fla. Stat. (1993). Thus, Mr. Boyd’s sentence is not illegal for purposes of rule 3.800(a) even if the trial court’s actions were vindictive.

In Wilson v. State, 845 So.2d 142 (Fla.2003), the Florida Supreme Court recently clarified the test to consider when determining on direct appeal whether a sentence may be vindictive because the trial court judge participated in pretrial plea negotiations. Certain conduct by the trial judge creates a presumption of vindictiveness. When a defendant establishes the existence of this presumption, the burden then shifts to the State to rebut the presumption with “affirmative evidence on the record.” Id. at 156. This type of analysis is not applicable in a rule 3.800(a) proceeding and should have been addressed at an earlier stage.

Therefore, we hold that an allegedly vindictive sentence that is not otherwise illegal under the rule announced in Carter is not a sentence that may be re-examined by way of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a).

Affirmed.

DAVIS and WALLACE; JJ., concur.

      . We note that it is not clear from Mr. Boyd’s motion that the trial judge in this case participated in negotiations or whether the judge was merely aware of negotiations that had occurred between counsel.

      . We are uncertain whether our decision conflicts with the Third District's recent decision in Smith v. State, 842 So.2d 1047 (Fla. 3d DCA 2003). That decision involves a recent sentencing hearing, and the motion may have been filed pursuant to rule 3.800(b).


text:
    SUNCOAST AUTO CENTER, INC., Appellant, v. CONSOLIDATED PROPERTY AND CASUALTY INSURANCE CO., Appellee.
    No. 2D03-2084.
    District Court of Appeal of Florida, Second District.
    May 26, 2004.
    Rehearing Denied July 15, 2004.
    James J. Dowling of Law Offices of Berger & Dowling, Palm Harbor, for Appellant.
    Joseph T. Metzger of Koleos, Rosenberg & Metzger, P.A., Tampa, for Appellee.
   CANADY, Judge.

Suncoast Auto Center, Inc., appeals an order of the trial court granting summary judgment in favor of its insurer, Consolidated Property and Casualty Insurance Company, in a lawsuit filed by Suncoast alleging that certain theft losses were covered by an insurance policy issued by Consolidated. Summary judgment was granted based upon an alleged misrepresentation by Suncoast in its application for insurance. Because we conclude that there is a disputed issue of material fact concerning whether any misrepresentation was made, we reverse the summary judgment.

Consolidated’s denial of coverage was based on its allegation that Suncoast had represented that its business premises were equipped with a “central station burglar alarm” when in fact no such alarm was present. It was undisputed that Sun-coast’s business premises were not protected by a central station burglar alarm at the time of the theft. However, Sun-coast denied that it ever represented that such an alarm was in place. To support its motion for summary judgment based upon the alleged misrepresentation, Consolidated relied on several affidavits and documents.

One of the affidavits relied upon by Sun-coast was that of Deborah Watson, an insurance agent with Huckleberry, Sibley & Harvey Insurance & Bonds, Inc., Sun-coast’s insurance agency. Watson stated in her affidavit that Suncoast’s insurance application was prepared using information, including the burglar alarm misrepresentation, provided over the phone to “Huckleberry personnel” by Glenn Ram-das, Suncoast’s owner. Watson further stated that a copy of this application, which included the misrepresentation, was sent to Ramdas, signed by him, and returned to the agency. Finally, Watson stated that an application containing the same information was subsequently sent to Suncoast for the purpose of renewing the policy and that a complete copy of the policy was sent to Suncoast following her agency’s receipt of Suncoast’s signed renewal application. The loss occurred after the policy was renewed.

Consolidated attached the renewal application to its motion for summary judgment; the initial application was not included. Page one of the renewal application is titled “applicant information section,” and the second page appears to be a continuation of that section. Page three is titled “property section.” In the record on appeal, the document consists of three pages, but it appears likely that the second page was printed on the back of the first page in the original because the bottom of page one states “please complete reverse side.” In any event, only page one is signed and the alleged misrepresentation is on page three. Further there is no notation on page one that would necessarily disclose the existence of page three.

Consolidated also attached to its motion a “protective safeguards” endorsement that was presumably appended to the complete policy. It states, among other things, that insurance coverage will be “immediately suspended” if the insured fails to notify Consolidated of any known suspension or impairment of the “protective safeguards.” The listed “protective safeguard” is a central station burglar alarm system.

Consolidated also relied upon an affidavit of Jerry Gagliardo, an inspector hired by the insurance company to inspect Sun-coast’s business premises. Gagliardo stated in his affidavit that he was told by a Suncoast employee named Tony that Sun-coast’s business premises were protected by a central station burglar alarm. He also stated that he observed door and window contacts consistent with such a system at the premises.

To support its opposition to the motion for summary judgment, Suncoast relied upon the filed deposition of its owner, Glenn Ramdas. Mr. Ramdas, when questioned by Consolidated’s attorneys, stated that he had provided information for the insurance application to a Huckleberry, Sibley & Harvey employee over the phone. He denied representing to anyone at Huckleberry, Sibley & Harvey that he had a central station burglar alarm. Instead, Mr. Ramdas contended that he truthfully stated that Suncoast’s business premises were protected by two security cameras with a continuous, forty-hour tape. Mr. Ramdas testified that, following his application for the insurance policy, he received a copy of the policy but did not read it. Mr. Ramdas was not questioned by Consolidated’s attorneys about the insurance application — allegedly bearing his signature — now included in the record.

Mr. Ramdas also testified regarding the individual named Tony. Mr. Ramdas described Tony as an “independent car broker.” Mr. Ramdas further stated that Tony was not a Suncoast employee and had no authority to speak for Suncoast.

A motion for summary judgment should only be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Our review of a summary judgment is de novo. Maynard v. Household Fin. Corp. III, 861 So.2d 1204, 1206 (Fla. 2d DCA 2003). In conducting our review, we are required to “indulge all proper inferences in favor of the party against whom summary judgment was sought.” Hodges v. Citrus World, Inc., 850 So.2d 648, 649-50 (Fla. 2d DCA 2003) (citation omitted).

We conclude that a disputed issue of material fact arises from the conflict between the affidavits and other documents relied upon by Consolidated and Mr. Ram-das’s deposition testimony that he had not misrepresented the nature of his security system when applying for the insurance policy. Because of the material conflict in the evidence submitted by the parties, the trial court erred in granting summary judgment to Consolidated. We therefore reverse the order granting summary judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WHATLEY and SALCINES, JJ., concur.