text:
    Tavaris JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2339.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.

      Nancy A. Daniels, Public Defender; Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

On direct appeal from judgments of conviction and consequent sentences, Tavaris Jones argues that the trial court abused its discretion in denying his request, made prior to the imposition of sentence, that he be permitted to withdraw his previously entered no contest plea. We reverse.

Appellant was charged by information with possession of cannabis in violation of section 893.13(6)(a), Florida Statutes (2003) and resisting an officer without violence, in violation of section 843.02, Florida Statutes (2003). At the plea hearing on March 2, 2004, appellant pleaded no contest “without an agreement” to the charges. Aside from the trial court’s reciting appellant’s options — proceeding to trial, pleading to the negotiated sentence of a year and a day, or pleading straight up and receiving a sentence “anywhere from probation to six years in prison” — no additional information was provided to appellant before entry of his plea.

Here, as in Koenig v. State, 597 So.2d 256, 257-58 (Fla.1992), “the record does not show that his plea was an intelligent and voluntary waiver of his constitutional rights.” The state concedes in its brief that the absence of a rule 3.172(c) inquiry in the present case “compels the conclusion[ ] that remand ... is needed.” See Koenig, 597 So.2d at 258 (reversing and remanding because the “detailed [rule 3.172(c) ] inquiry necessary when accepting a plea is absent in this case” even though the trial court did ask appellant whether “he understood that he was waiving ‘certain rights’ ”).

On April 19, 2004, three days prior to the sentencing hearing, defense counsel filed a Motion to Withdraw Plea, which alleged as grounds for withdrawal that the plea had not been entered knowingly or intelligently, specifically that “[d]efendant appears to be intellectually limited.... Defendant mistakenly or inadvertently selected a plea option that was not of his true intention due to the profound degree of his mental limitations.” See Robinson v. State, 761 So.2d 269, 274 (Fla.1999) (quoting Yesnes v. State, 440 So.2d 628, 634 (Fla. 1st DCA 1983)) (“A defendant should be permitted to withdraw a plea ‘if he files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting his rights.’ (emphasis supplied). Baker v. State, 408 So.2d 686, 687 (Fla. 2d DCA 1982).”).

The motion was still pending at the time of the sentencing hearing, when defense counsel explained that a psychological evaluation conducted on March 9, 2004, revealed that appellant has an IQ of 75 and reads on a third-grade level, findings which place him in the “borderline mentally defective range.” The trial judge noted that the court system “deal[s] with a lot of people ... that are intellectually challenged, and ... that have mental disabilities,” but stated that he would review the psychological evaluation “prior to ruling on your motion to withdraw the plea.” The trial court then adjudicated appellant guilty and sentenced him to two years’ imprisonment on the possession charge, and to one year concurrent on the resisting without violence charge, with credit for time served. Six days later, the trial court denied appellant’s Motion to Withdraw Plea in an order stating that the trial court had “examin[ed] a psychological evaluation ... and considered] the arguments of counsel.”

“Due process requires a court accepting a guilty plea to carefully inquire into the defendant’s understanding of the plea, so that the record contains an affirmative showing that the plea was intelligent and voluntary.” Koenig v. State, 597 So.2d at 258 (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)); see also Fla. R.Crim. P. 3.170(k) (“No plea of guilty or nolo contendere shall be accepted by a court without the court first determining, in open court, with means of recording the proceedings steno-graphically or mechanically, that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness and that there is a factual basis for the plea of guilty.”); Fla. R.Crim. P. 3.172(a) (“Before accepting a plea of guilty or nolo contende-re, the trial judge shall be satisfied that the plea is voluntarily entered and that there is a factual basis for it.”).

Although the state admits that the instant “record fails affirmatively to reflect that appellant’s pleas were intelligent and voluntary,” Watson v. State, 667 So.2d 242, 245 (Fla. 1st DCA 1995), it requests that we direct the trial court to conduct a rule 3.172(c) inquiry on remand, but leave his convictions and sentence intact. The state has cited no authority for such a disposition and we are aware of no precedent that would support it. Moreover, the motion to withdraw was filed pursuant to Florida Rule of Criminal Procedure 3.170(f), not Florida Rule of Criminal Procedure 3.170(0. See Lee v. State, 875 So.2d 765, 767 (Fla. 2d DCA 2004) (“Rule 3.170(f) clearly contemplates that motions filed before sentencing will also be ruled upon before sentencing.”).

Accordingly, we reverse and remand because the record does not contain sufficient inquiry to “refute appellant's] claims[s] that [the] pleas were neither intelligently nor voluntarily made.” Grantham v. State, 665 So.2d 348, 351-52 (Fla. 1st DCA 1995) (reversing on grounds that trial court abused its discretion in denying appellant’s request, made prior to the imposition of sentence, to withdraw his previously entered no contest pleas where the “trial court failed to conduct any inquiry along the lines proposed in rule 3.172(c),” so that “the record d[id] not refute appellant’s claim that his pleas were neither intelligently nor voluntarily made”); see also Watson, 667 So.2d at 245 (reversing on grounds that trial court abused its discretion in denying appellant’s request, made prior to the imposition of sentence, to withdraw his previously entered no contest pleas where “[t]he record ... reflected] no effort to determine that appellant understood any of the matters listed in Rule 3.172(c),” so that the record did not reveal whether appellant’s pleas were intelligent and voluntary).

Even if appellant had been shown a form acknowledging the rights a plea of no contest waives, his reading level and mental capacity might well have precluded his understanding the contents of the form. Cf. Koenig v. State, 597 So.2d at 258. (“Before his plea hearing, Koenig signed a form which described in detail the rights he was waiving. In response to the judge’s inquiry, he said he had discussed this with his attorney. However, there is nothing in the record to demonstrate that he could understand the form he signed or what his attorney told him about it.”). In any event, as the state has also conceded, appellant did not sign such a form.

Reversed and remanded.

WOLF, C.J., and BENTON and VAN NORTWICK, JJ., CONCUR.

      . When determining whether a plea is voluntary, rule 3.172(c), Florida Rules of Criminal Procedure, provides that
      the trial judge should ... place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:
      (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law;
      (2) if the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding against him or her and, if necessary, one will be appointed to represent him or her;
      (3) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made and that the defendant has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to compel attendance of witnesses on his or her behalf, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself;
      (4) that if the defendant pleads guilty, or nolo contendere without express reservation of the right to appeal, he or she gives up the right to appeal all matters relating to the judgment, including the issue of guilt or innocence, but does not impair the right to review by appropriate collateral attack;
      (5) that if the defendant pleads guilty or is adjudged guilty after a plea of nolo con-tendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he or she waives the right to a trial;
      (6) that if the defendant pleads guilty or nolo contendere, the trial judge may ask the defendant questions about the offense to which he or she has pleaded, and if the defendant answers these questions under oath, on the record, and in the presence of counsel, the answers may later be used against him or her in a prosecution for perjury;
      (7) the complete terms of any plea agreement, including specifically all obligations the defendant will incur as a result; and
      (8) that if he or she pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases.

      . Appellant did not request below and does not argue on appeal that new counsel should have been appointed to file or argue the motion to withdraw plea. Cf. Newsome v. State, 877 So.2d 938, 940 (Fla. 2d DCA 2004) (“[Gjiven Newsome’s allegations that counsel was ineffective, that counsel misadvised him about the minimum and maximum penalties he faced, and that counsel had coerced him to sign the plea, we conclude that Newsome's counsel’s position had become adverse to Newsome’s, thus entitling Newsome to the appointment of conflict-free counsel” at the hearing on Newsome's motion to withdraw plea); Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003) ("Once a conflict becomes apparent between the defendant and defense counsel during a hearing on the defendant’s motion to withdraw plea, the defendant is without representation and is entitled to the appointment of conflict-free counsel.”).


source: Caselaw Access Project

author: WEBSTER, J.

license: Public Domain

text:
    DEPARTMENT OF STATE, DIVISION OF ELECTIONS, Appellant, v. Joseph MARTIN, et al., Appellees.
    No. 1D04-4517.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.

      Charlie Crist, Attorney General; Jonathan A. Glogau, Chief, Complex Litigation; Erik M. Figlio, Deputy Solicitor General, Tallahassee, for Appellant.
    Jennifer S. Blohm of Meyer and Brooks, P.A., Tallahassee, for Appellees.
    Elizabeth McArthur and Christopher B. Lunny of Radey Thomas Yon & Clark, P.A., Tallahassee; Richard E. Coates, Tallahassee, for Jim Smith and George Firestone, Amici Curiae.
   WEBSTER, J.

The Department of State, Division of Elections, seeks review of a final order entering a mandatory injunction directing the Division to (1) permit a Democratic candidate for Congress to withdraw; (2) immediately notify the appropriate Democratic Party officials of their right to designate a nominee to fill the vacancy thereby created; and (3) if the Democrats designate a nominee at least 21 days before the general election, comply with the requirements of section 101.253(3), Florida Statutes (2004), for placing the nominee on the ballot. We affirm.

I.

James R. Stork qualified with the Division as the Democratic Party’s candidate for the Florida Congressional District 22 seat in the 2004 general election, which is to take place on November 2nd. On September 23rd, some 40 days before the date of the election, the Division received from Stork a sworn notice, stating that he wished to withdraw as a candidate. Six days later, the Division informed Stork that, “in the interest of avoiding disruption and confusion,” he would not be permitted to withdraw, citing section 101.253(2), Florida Statutes (2004), as its justification. Section 101.253(2) reads:

No candidate’s name, which candidate is required to qualify with the Department of State for any primary or general election, shall be printed on the ballot if such candidate has notified the Department of State in writing, under oath, on or before the 42nd day before the election that the candidate will not accept the nomination or office for which he or she filed qualification papers. The Department of State may in its discretion allow such a candidate .to withdraw after the h2nd day before an election upon receipt of a written notice, sworn to under oath, that the candidate will not accept the nomination or office for which he or she qualified.

(Emphasis added.) On October 5th, appel-lees (who are members of the Congressional District 22 Democratic Party Executive Committee) commenced this action, seeking (among other things) a mandatory injunction requiring the Division to declare that a vacancy was created by Stork’s withdrawal and to comply with section 100.111(4)(b), Florida Statutes (2004), so that the Democratic Party might designate a nominee to fill the vacancy. To the extent pertinent, section 100.111(4)(b) reads:

If the vacancy in nomination occurs later than September 15, ... no special primary election shall be held and the Department of State shall notify the chair of the appropriate state, district, or county political party executive committee of such party; and, within 7 days, the chair shall call a meeting of his or her executive committee to consider designation of a nominee to fill the vacancy. The name of any person so designated shall be submitted to the Department of State within 14 days of notice to the chair in order that the person designated may have his or her name printed or otherwise placed on the ballot of the ensuing general election, but in no event shall the supervisor of elections be required to place on a ballot a name submitted less than 21 days prior to the election. If the vacancy occurs less than 21 days prior to the election, the person designated by the political party will replace the former party nominee even though the former, party nominee’s name will be on the ballot. Any ballots cast for the former party nominee will be counted for the person designated by the political party to replace the former party nominee....

On the morning of October 8th, the trial court held a hearing' on the request for an injunction. The parties agreed that any order entered by the trial court would be the final order in the case. At the hearing, the Division presented undisputed evidence that it would be extremely difficult to change the ballots so close to the election, and that any request to do so would be disruptive because absentee ballots had already been sent out, it would take three weeks to produce new paper ballots, and parts of the district had recently begun using touch-screen voting machines, which could not be reprogrammed and tested in fewer than five weeks. At oral argument, counsel fqr the Division candidly conceded that the same problems would have existed had the Division received Stork’s notice two days earlier, but that the Division would have been required by the first sentence of section 101.253(2) to permit Stork to withdraw, and to initiate the replacement procedure set out in section 100.111(4)(b).

Following the hearing, the trial court entered its “Final Order Granting Temporary and Permanent Injunction.” In that order, the trial court acknowledged that the outcome of the. case turned on the interplay between sections 101.253(2) and 100.111(4)(b). It nbted that section 100.111(4)(a) and (b), together, provide that death, withdrawal, resignation or removal of a candidate results in a vacancy in the nomination, and that paragraph (4)(b) “then provides a detailed procedure that must be implemented when a vacancy occurs.” Moreover, the trial court con-eluded that it was clear from that paragraph that the legislature anticipated the possibility that such vacancies might occur all the way up to the day of the election. It rejected the Division’s argument that the second sentence of section 101.253(2) gave the Department the discretion to deny permission to withdraw because the request was made fewer than 42 days before the election, stating that the statute supplied no criteria for the exercise of the discretion delegated to the Department and that, without expressed criteria, there was nothing to prevent the Department from basing its decision on any reason, or no reason. It concluded its analysis with the following:

Here, the statutes can be harmonized. Section 100.111(4)(b) provides the procedures that must be followed when a candidate withdraws after September 15th. To read Section 101.253(2) as the Department urges would essentially render Section 100.111(4)(b) meaningless and a nullity. Further, the Court must read these statutes in a manner that preserves their constitutionality. Under Article II Section 3 of the Florida Constitution, the Legislature “... may not delegate the power to enact a law or the right to exercise unrestricted discretion in applying the law.” Sims v. State, 754 So.2d 657, 668 (Fla.2000). Statutes granting power to the executive branch of government “must clearly announce adequate standards to guide ... in the execution of the powers delegated. The statute must so clearly define the power delegated that the [executive] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion.” Bush v. Shiavo [sic], [885 So.2d 321,] 2004 WL 2109983 (Fla.S.Ct. Sept. 23, 2004); see also Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978).... [T]here are no such standards in Section 101.253(2). The Court must therefore find that the specific procedures set forth in Section 100.111(4)(b) govern the decision here.

Accordingly, the trial court entered a mandatory injunction directing the Division to (1) permit Stork to withdraw; (2) immediately notify the Congressional District 22 Democratic Party Executive Committee of their right to designate a nominee to fill the vacancy thereby created; and (3) if the Executive Committee designates a nominee at least 21 days before the general election, comply with the requirements of section 101.253(3), Florida Statutes (2004), for placing the nominee on the ballot. This appeal follows. Our standard of review is de novo. See, e.g., Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998) (“judicial interpretation of Florida statutes is a purely legal matter and therefore subject to de novo review”); City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002) (whether a statute is facially unconstitutional is a pure question of law, subject to de novo review).

II.

“[Legislative intent is the polestar that guides a court’s statutory construction analysis.” State v. J.M., 824 So.2d 105, 109 (Fla.2002) (citations omitted). Accordingly, we must begin our analysis by attempting to determine the intended interplay (if any) between section 101.253(2) and section 100.111(4)(b). In this effort, we are grateful for the assistance of amici curiae, Jim Smith and George Firestone, both of whom are former Secretaries of State. We agree with their position that the legislature intended that section 101.253 would govern when and how a candidate may seek to withdraw his or her name from nomination and be removed from the ballot. Section 100.111 was intended to address the next step. If a candidate timely submits a request to withdraw (or the Department, in its discretion, grants an untimely request), a vacancy arises. Section 100.111(4)(b) addresses the process to be used to fill that vacancy. (Section 100.111(4) also addresses the process to be used to fill vacancies caused by circumstances other than withdrawal, such as death or removal.) This determination does not, however, end our inquiry. We must next decide whether the second sentence of section 101.253(2) amounts to an unconstitutional delegation of legislative power to the Department.

III.

If at all possible, we must construe a statute in such a way as to uphold its constitutionality. E.g., St. Mary’s Hosp., Inc. v. Phillipe, 769 So.2d 961, 972 (Fla.2000). However, our duty to apply this presumption is dependent on our being able to arrive at a fair construction that is consistent with the federal and state constitutions, as well as legislative intent. E.g., State v. Elder, 382 So.2d 687, 690 (Fla.1980). If we are unable to arrive at a fair construction that will achieve such a result, we have a duty to declare the legislation “ ‘to be in conflict with the Constitution and, to the extent of such conflict, to be invalid.’ ” Lewis v. Bank of Pasco County, 346 So.2d 53, 55 (Fla.1977) (on motions for clarification and to appear as amicus cmiae and for rehearing).

Appellees maintain that, because it gives the Department unbridled discretion, the second sentence of section 101.253(2) amounts to an unconstitutional delegation of legislative power to the Department, in violation of article II, section 3 of the Florida Constitution, which prohibits any “person belonging to one branch [from] exercising] any powers appertaining to either of the other branches unless expressly provided” by the constitution. Florida courts have on many occasions addressed whether legislation violates the prohibition contained in article II, section 3. We find our supreme court’s opinion in Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1977) (on motions for clarification and to appear as amicus curiae and for rehearing), particularly enlightening.

In Lewis, a statute provided that, notwithstanding the Florida Public Records Act, bank documents maintained by the Division of Banking of the Department of Banking and Finance would “ ‘not be made public, unless with the consent of the department.’ ” Id. at 54. A number of banks filed a declaratory judgment action, asking for a determination of whether the Department could release lists of their stockholders. Id. The Department argued that the legislature had given it such authority. Id. at 54-55. The trial court acknowledged that the literal meaning of the words of the statute appeared to give the Department that power. Id. at 55. However, it concluded that, because the power given to the Department by the legislature violated article II, section 3, of our constitution, the statutory delegation was unconstitutional. Id. Affirming the trial court’s holding, our supreme court said:

The legal principal guiding the Circuit Judge in this case and which is disposi-tive of the issue under consideration is so well known as to be deemed “horn-book” law. This Court has held in a long and unvaried line of cases that statutes granting power to administrative agencies must clearly announce adequate standards to guide the agencies in the execution of the powers delegated. The statute must so clearly define the power delegated that the administrative agency is precluded from acting through whim, showing favoritism, or exercising unbridled discretion.

Id. at 55-56 (citations omitted). Accord Dickinson v. State, 227 So.2d 36, 37-38 (Fla.1969); High Ridge Mgmt. Corp. v. State, 354 So.2d 377, 380 (Fla.1977); Fla. Home Builders Ass’n v. Div. of Labor, Bureau of Apprenticeship, 367 So.2d 219, 220 (Fla.1979); In re Advisory Opinion to the Governor, 509 So.2d 292, 311 (Fla.1987).

Our supreme court has recently reaffirmed Lewis. In Bush v. Schiavo, 885 So.2d 321 (Fla. Sept. 23, 2004), the court unanimously struck down a statute which it concluded delegated “unfettered discretion” to the governor. In doing so, the court said:

[U]nder article II, section 3 of the constitution the Legislature “may not delegate the power to enact a law or the right to exercise unrestricted discretion in applying the law.”... This prohibition, known as the nondelegation doctrine, requires that “fundamental and primary policy decisions ... be made by members of the legislature who are elected to perform those tasks, and [that the] administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program.” ... In other words, statutes granting power to the executive branch “must clearly announce adequate standards to guide ... in the execution of the powers delegated. The statute must so clearly define the power delegated that the [executive] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion.”...

Id. at S518.

The second sentence of section 101.253(2) reads: “The Department of State may in its discretion allow such a candidate to withdraw after the 42nd day before an election upon receipt of a written notice, sworn to under oath, that the candidate will not accept the nomination or office for which he or she qualified.” Clearly, the subsection includes no criteria which provide standards to guide the Department in the exercise of the power delegated. In this sense, it is indistinguishable from the statute stricken in Lewis. However, the Division argues that such standards may be found by reading the “Florida Election Code.” We find this argument disingenuous at best. It is true that, in appropriate circumstances, courts may read related statutes to determine whether sufficient standards have been pronounced by the legislature. E.g., Apalachee Reg’l Planning Council v. Brown, 546 So.2d 451, 453 (Fla. 1st DCA 1989), approved, 560 So.2d 782 (Fla.1990). However, section 97.011, Florida Statutes (2004), tells us that the term “Florida Election Code” refers to “[c]hapters 97-106 inclusive” of the Florida Statutes. While we have not personally accepted the Division’s invitation to read those ten chapters, comprising some 124 pages, in an attempt to mine from them the standards intended to limit the Department’s discretion, we doubt very much that prior decisions of our supreme court would require such a Herculean effort.

Because the second sentence of section 101.253(2) vests unbridled discretion in the Department, we hold that it violates article II, section 3 of our constitution and is, therefore, unconstitutional. Were we to sever that sentence from the first, we would create an irreconcilable conflict between the remaining sentence of subsection (2) and subsection (3), and possibly between subsection (2) and section 100.111(4)(b) as well. Accordingly, we hold that subsection (2) is unconstitutional in its entirety.

Having declared section 101.253(2) unconstitutional, there is no other provision which purports to limit a nominee’s right to withdraw from the election. That being the case, Stork’s withdrawal must be recognized, and resort must then be had to section 100.111(4)(b) for the applicable procedure to be employed for the selection of a replacement nominee. Because this is the result reached by the trial court, we affirm its “Final Order Granting Temporary and Permanent Injunction.”

AFFIRMED.

DAVIS and POLSTON, JJ., CONCUR.


author: RAMIREZ, J. (SHEPHERD, J.,

text:
    Thomas HALLOCK, Appellant, v. HOLIDAY ISLE RESORT & MARINA, INC., et al., Appellees.
    No. 3D03-589.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2004.

      Tom Woods, Jacksonville, for appellant.
    John A. Jabro, Tavernier; and Rogers, Morris & Ziegler, and Mark F. Booth, Fort Lauderdale, for appellees.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   RAMIREZ, J.

Thomas Halloek appeals the trial court’s Order granting the defendants’ Motion for Summary Judgment and the Summary Final Judgment entered for the defendants, the Order dismissing with prejudice Hal-lock’s tortious interference claim, and the Order denying Hallock’s motion to reconsider dismissing Hallock’s tortious interference claim. We affirm all three of the trial court’s orders, but because we find there was a genuine issue of material fact regarding the breach of fiduciary duty issue, we reverse the summary judgment entered in favor of Holiday Isle as to that count only. In addition, we dismiss without prejudice the appeal against defendant Rip Tosun.

I. FACTS AND PROCEDURE

In 1984, Holiday Isle Resort & Marina, Inc., one of the defendants in the trial court, entered into a “Joint Venture Agreement” with another defendant, Rip Tosun, to own and operate a restaurant called Rip’s — A Place For Ribs (Rip’s), located at Holiday Isle Resort & Marina, Windley Key, Islamorada, Florida. Under the 1984 joint venture agreement, Tosun was to operate the restaurant as a partnership, each party owning fifty percent interest. The agreement would expire in five years. The joint venture agreement provided that “Tosun may not assign or alienate his interest in the Venture, and in the event of death of Tosun, the Venture shall terminate.”

The joint venture was later extended and modified by an undated “Extension of Modification of Joint Venture Agreement,” which limited the extension periods to one-year, effective March 1, 1996. During the time period that Rip’s was in business, it was managed and operated by Tosun. During this time, Holiday Isle owned and operated at least four other restaurants and five other bars and various food kiosks, all located on the Holiday Isle Resort property.

In 1997, Tosun entered into a Contract for Sale and Purchase whereby Tosun sold fifty percent of his half interest in Rip’s to Thomas Hallock, the plaintiff in the trial court. That sale provided that in return for payments totaling $125,000, Hallock would receive fifty-percent of Tosun’s interest in Rip’s, as well as continue to receive his present salary. This purchase agreement granted Hallock the option to purchase Tosun’s remaining interest in Rip’s, subject to Holiday Isle’s consent. Hallock admits that while he asked for Holiday Isle’s consent to purchase Tosun’s remaining interest in Rip’s, Holiday Isle never responded to his request for Holiday Isle’s consent.

In March of 1999, Tosun informed Hal-lock that Tosun was going to open and manage the Olde Florida Steakhouse on the Howard Johnson’s property, which was adjacent to Rip’s. Tosun told Hallock that he and Holiday Isle were opening the Olde Florida Steakhouse to protect Rip’s because if the Howard Johnson’s property was leased to a chain restaurant business, it would be detrimental for Rip’s and the other restaurants in the resort.

Holiday Isle also ordered that the breakfast shift cease at Rip’s and a breakfast shift was started at the Steakhouse. In addition, the breakfast cook was moved from Rip’s and the head waitress was also moved. Other employees and equipment were also shifted to the Steakhouse.

Hallock objected to the partners about the cessation of the breakfast shift and Holiday Isle’s lack of response to his request for consent to his purchase. Hallock alleged that personnel and equipment were diverted from Rip’s to the Steakhouse to increase profits of the Steakhouse, to the detriment of Rip’s. Holiday Isle responded by threatening to terminate the agreement. On March 1, 2000, Holiday Isle terminated the joint venture agreement.

Hallock sued Holiday Isle, Tosun and Joe Roth, Jr., alleging claims for tortious interference, fraud, breach of contract, libel and slander. After several motions to dismiss, amended complaints and motions for summary judgment, the trial court disposed of all counts except Hallock’s breach of contract and breach of fiduciary duty against Tosun. Also pending is Tosun’s counterclaim against Hallock for breach of contract.

II. AS TO TOSUN

First, with respect to Tosun, we agree with his position that the appeal against him is premature. The rule in Florida is that an appeal may be taken only from orders and judgments that are final, except as otherwise provided by statute. See Howard v. Ziegler, 40 So.2d 776, 777 (Fla.1949). A judgment or order is final when it adjudicates the merits of the case, disposes of the pending action, and leaves nothing further to be done by the trial court. Id.; Southwinds Riding Academy v. Schneider, 507 So.2d 782, 783 (Fla. 3d DCA 1987).

Florida Rule of Appellate Procedure 9.110(k) provides that, “partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case.” However, Florida case law holds that this exception only applies to partial judgments which are unrelated to the remaining portions of the case. See Bay & Gulf Laundry Equip. Co., Inc. v. Chateau Tower, Inc., 484 So.2d 615, 616 (Fla. 2d DCA 1985). Thus, not all partial judgments are immediately appealable.

In the case before us, as it applies to Tosun, the January 28, 2003 Order Granting Defendants’ Motion for Summary Judgment and Summary Final Judgment is not a final order and is not appealable under Florida Rule of Appellate Procedure 9.110. This order, which is the only order for which Hallock seeks review as to To-sun, does not dispose of Hallocks’ claims against Tosun for.breach of contract and breach of fiduciary duty. Nor does the January 28, 2003 order dispose of Tosun’s counterclaim against Hallock for breach of contract. Thus, the order under review is a partial summary judgment as to Tosun. Hallock’s claims against Tosun and To-sun’s counterclaim against Hallock are based upon the parties’ conduct relating to the January 27, 1997 contract for sale and purchase whereby Hallock agreed to purchase Tosun’s interest in the Rip’s restaurant. Thus, the January 28, 2003 partial summary judgment in favor of Tosun against Hallock on Hallock’s claims of defamation and fraud in the inducement, which are interdependent with Hallock’s remaining claims of breach of contract and breach of fiduciary duty against Tosun, is not a final order and is not immediately appealable. Furthermore, this order is not one of the enumerated non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3) which this Court is authorized to review.

Consequently, we find that this Court is without jurisdiction to review Hallock’s appeal as it relates to Tosun. Accordingly, we dismiss without prejudice the appeal as to Tosun.

III. AS TO HOLIDAY ISLE

Next, turning to Hallock’s appeal as it relates to Holiday Isle, we find merit to Hallock’s breach of fiduciary duty issue. Hallock contends that as a matter of law, Holiday Isle owed him a fiduciary duty and that there is a genuine issue of material fact as to whether Holiday Isle breached its fiduciary duty to Hallock, thus precluding summary judgment. We agree with Hallock that as a matter of law, a joint adventurer such as Holiday Isle owes a fiduciary duty to the other partners not to open a competing restaurant and not to divert assets of the joint venture to that competing restaurant. In addition, the record before us reflects a genuine issue of material fact regarding whether Holiday Isle breached this duty.

As previously discussed, Hallock and Holiday Isle entered into a joint venture agreement. When Hallock purchased half of Tosun’s interest, he became a partner in the partnership. Although joint ventures and partnerships are separate legal entities, both are governed by the same rules of law. As such, the laws governing partnerships are applicable to joint ventures. See Kislak v. Kreedian, 95 So.2d 510, 514 (Fla.1957). They are both governed by the Florida’s Revised Uniform Partnership Act, chapter 620, Florida Statutes. Regarding the general duties and obligations of joint adventurers toward each other, they, like co-partners owe to one another, as long as the relationship continues, the duty of the finest and highest loyalty. See Donahue v. Davis, 68 So.2d 163, 171 (Fla.1953). According to section 620.8404(2), Florida Statutes (2000), a partner’s duty of loyalty to the partnership and the other parties includes, without limitation the following:

(a) To account for the partnership and hold as trustee for the partnership any property, profit, or benefit derived by the partner in the conduct ... or derived from a use by the partner of partnership property, including the appropriation of a partnership opportunity;
(b) To refrain from dealing with the partnership in the conduct ... of the partnership business as or on behalf of a party having an interest adverse to the partnership; and
(c) To refrain from competing with the partnership in the conduct of the partnership business before the dissolution of the partnership.

In light of this, we agree with Hallock that as a matter of law, Holiday Isle had a fiduciary duty to Hallock. Specifically, section 620.8404(2)(c) prevented the partners in this joint venture from competing against each other.

Next, turning to whether the summary judgment standard was met by Holiday Isle, we follow the long-standing principle that summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). As such, the standard of review here is de novo. Id.

A complete review of the record here reveals that there is a genuine issue of material fact as to whether Holiday Isle breached its fiduciary duty to Hallock in opening a competing restaurant next door to Rip’s, the Steakhouse, and in diverting assets and employees from the partnership to the Steakhouse.

Hallock stated in his affidavit submitted in opposition to the defendants’ motion for summary judgment that prior to his purchasing Rip’s, he was told by Joe Roth, one of the owners and acting director of Holiday Isle, that Holiday Isle was going to close Howard Johnson’s and turn that location into an executive office building. Hallock testified that the Steakhouse drew valuable employees from Rip’s depriving it of important staff. He was never consulted prior to the decision to move the breakfast shift from Rip’s to the Steakhouse. Other employees and equipment were moved from Rip’s to the Steakhouse. Hal-lock testified that prior to his entering the Purchase and Sale Agreement, Holiday Isle representatives indicated to him that they would continue the business beyond its current term and that Rip’s would continue as a viable enterprise. He further asserts in his affidavit that prior to his signing the Purchase and Sale Agreement, neither Tosun nor Holiday Isle told him that they would open a competing enterprise next door or else , he would not have entered into the Purchase and Sale Agreement. Thus, we find that, at the very least, there is a genuine issue of material fact as to what the scope of the duties under the joint venture agreement was and whether, in fact, Holiday Isle breached its fiduciary duty by moving employees and equipment.

In sum, we find that Holiday Isle owed a fiduciary duty to Hallock under section 620.8404(2), Florida Statutes (2000). We further find that there are genuine issues of material fact as to whether Holiday Isle breached that duty.

IV. CONCLUSION

Accordingly, we reverse the final summary judgment entered in favor of Holiday Isle as to the breach of fiduciary duty count. We affirm the final summary judgment order in all other respects, as well as affirm the order dismissing with prejudice Hallock’s tortious interference claim and the order denying Hallock’s motion to reconsider dismissing Hallock’s tortious interference claim. In addition, we dismiss without prejudice the appeal against defendant Rip Tosun.

Affirmed in part, reversed in part, dismissed in part.

FLETCHER, J., concurs.

(SHEPHERD, J.,

dissenting in part).

I agree with the majority that the three orders of the trial court should be affirmed. However, unlike the majority, I would affirm them in all respects. I disagree that the facts of this case create a jury question on the breach of fiduciary duty count.

A confidential and fiduciary relationship must be established by competent, substantial evidence, and the burden is upon the party asserting the existence of such relationship to affirmatively prove it. Kislak v. Kreedian, 95 So.2d 510, 514-15 (Fla.1957). Here, there is no disagreement that Hallock has proven that a joint venture relationship existed via the Joint Venture Agreement. The source of contention lies in the extent and nature of the fiduciary duty owed since the joint venture itself is a creature whose scope and often “shelf life” are limited.

In this case, the nomenclature of the agreements as between Hallock and To-sun, and Tosun and Holiday Isle, declare that the arrangement was to be a “joint venture.” From that, the majority makes a leap in logic, in which I cannot join, that because Hallock and Tosun agreed to split the profits with each owning fifty percent, ergo, a partnership was born. In effect, the majority is rewriting the underlying contract by treating the joint venture as a partnership, and indistinguishably blurring the lines between the two concepts, when they are not the same thing.

“The outstanding difference between a joint venture and a partnership is that the former relates to a single transaction, although it may comprehend a business to be continued over several years, while the latter relates to a general and continuing business of a particular kind, although there may be a partnership for a single transaction.” Id. In this case, because the agreements expressly state that they contemplate a “joint venture,” they implicitly limit themselves to a single common purpose — the continued operation and development of Rips restaurant, and that alone. “A joint venture is an association of persons or legal entities to carry out a single business enterprise for profit.” 8 Fla. Jur.2d Business Relationships § 744 (2002).

[A] joint venture must be distinguished from a partnership. Even though it has been said that a joint venture is a relationship in the nature of a limited partnership, joint venture and partnership are separate legal relationships. The relationship of a joint venture is generally more informal than the one that exists between partners, and some of the incidents of partnership do not, or may not, apply.... The chief distinction is that a joint venture is usually limited to a single transaction, whereas a partnership is ordinarily formed for the transaction of a general and continuing business. Considered from another viewpoint, the distinction between the two relationships exists in their respective scopes. Joint venture differs from partnership in that it has a limited and specific object in view; it is a partnership of limited scope ordinarily terminating when the objects of its creation have been accomplished.

Id. at § 746.

In that sense, all of the parties — Hal-lock, Tosun and Holiday Isle — leave themselves the right to maintain, or in the future to establish, any other restaurants, even competing restaurants, exclusive of each other. Whereas, if the relationship between the parties had been contractually arranged as a “partnership,” the right to pursue competing interests would have been curbed by virtue of a duty of loyalty or a fiduciary duty, and any new prospects could be viewed as property of the partnership. Id. at § 535.

A partner’s duty of loyalty to the partnership and the other partners includes ... the duty to refrain from competing with the partnership in the conduct of the partnership business before the dissolution of the partnership. While a partner may engage in a separate business during the period that the partner is a member of a firm, the partner cannot do so if it is of the same nature and in competition with that of the firm.

Id.

The majority in this case, by raising Hallock ipso facto to partnership status, imposes additional duties than those bargained for in the joint venture contract. See Jerry Dickerson Presents, Inc. v. Concert Southern Chastain Promotions, 260 Ga.App. 316, 579 S.E.2d 761 (2003) (trial court correct in granting summary judgment where “Joint Venture Affidavit” between parties was not sufficient to create a partnership relationship).

Florida law certainly recognizes that there is a distinction between a joint venture and a partnership. Nautica Int’l, Inc. v. Intermarine USA, L.P., 5 F.Supp.2d. 1333 (S.D.Fla.1998). It is not that a party to a joint venture would not owe a fiduciary duty to the other party. Deal Farms, Inc. v. Farm & Ranch Supply, Inc., 382 So.2d 888, 890 (Fla. 1st DCA 1980) (“relationships of joint venture and partnership are similar and governed by the same rules of law, although distinguishable in certain respects”). Under Florida law, a party to a joint venture owes fiduciary duties to the other party. The critical difference is that with joint ventures, the scope of the business relationship is limited to a single purpose or object. 8 Fla.Jur.2d at § 746 (“Joint venture differs from partnership in that it has a limited and specific object in view, [and] ordinarily terminatfes] when the objects of its creation have been accomplished”). Hence, naturally, the scope of the fiduciary duty is limited to the subject matter of the agreement and does not go beyond the contract. Id. (“some of the incidents of partnership do not, or may not, apply [to joint ventures]”).

In this case, before Hallock ever entered the picture, the subject resort property already contained numerous restaurants, all competing against each other. Holiday Isle is a resort that has a longstanding practice of hosting a variety of competing restaurants to accommodate a broad range of clientele wishing to have a selection in dining fare at differing times and ambiances as may be importuned by the composition of the resort’s customer base. Thus, the fact that another competing restaurant was established after Hallock’s introduction into Rip’s is hardly a surprise, much less a breach of any fiduciary or confidential relationship. In fact, Hallock admits that he entered into the joint venture agreement knowing that Rip’s would be expected to operate in conformity with and for the betterment of the entire property. As a businessman, Hallock stepped into a situation fraught with the potential for conflict, and now he comes to this court looking for sympathy on a risk he contracted to assume. Cf. Williams v. Bear Stearns & Co., 725 So.2d 397 (Fla. 5th DCA 1998) (economic loss rule bars recovery for breach of fiduciary duty between contracting parties who, assume risk of certain investments); Bruce v. Heiman, 392 So.2d 1026 (Fla. 5th DCA 1981) (racer who signed release of liability form in order to gain admission to restricted area is barred from recovery for knowingly assuming risk).

Because the parties expressly structured their relationships in writing as a joint venture, Holiday Isle never needed the consent, approval or blessing of either To-sun or Hallock if it chose to sponsor another restaurant to the exclusion of either Tosun or Hallock, or the inclusion of one and not the other. Similarly, neither To-sun or Hallock needed the blessing of the other if one chose to pursue another restaurant venture, whether at the Holiday Isle’s location or elsewhere. Thus, the only question before this court is whether the actions of Holiday Isle or Tosun breached the joint venture agreement with Hallock as to Rips alone. The joint venture agreement concerns Rip’s alone. On this point of breach of fiduciary duty, the “misconduct” or “diversion of assets” allegations center around the cancellation of the breakfast service at Rip’s, the reassignment of some employees and the relocating of a few tables, chairs and cooking utensils from Rip’s to another restaurant at the resort. With regard to the above allegations, there is no factual dispute here needing the resolve of a jury. The parties agree that the above events happened. Thus, the only question is whether they are tantamount to a breach of fiduciary duty. I do not believe the conduct here is sufficient.

Here, the evidence bears out that the employees were employees of Holiday Isle, and it was the common practice of Holiday Isle to shift staff among the different restaurants due to turnover and other legitimate business reasons. Hallock himself acknowledged that the staff was legally employed by Holiday Isle, and that Holiday Isle could direct the employees among the several eateries as it deemed appropriate. It appears that the employee transfer about which Hallock complains, occurred in conjunction with the decision to cancel the breakfast shift at Rip’s. Hallock has failed to show that the stop order on breakfast at Rip’s was anything other than a standard executive decision to manage the different aspects of the resort as a whole. He shows no malice on the part of the defendants designed to harm him. Similarly, Hallock also testified that Holiday Isle’s redirecting a few pots and pans, a slicer and tables did not leave Rip’s wounded or incapable of serving its guests and did not have any effect on the closing of Rip’s. Relocating of these minor operational functions appears de minimus at best.

A breach of fiduciary duty does not effervesce from such facts, and Hallock has failed in his burden to both articulate and substantiate his claim. This is not the stuff from which a claim for breach of fiduciary duty can be created or go to a jury. As such, I respectfully dissent.

      . This admission is supported by the tight rein that Holiday Isle kept on the premises. The joint Venture Agreement between Holiday Isle and Tosun was renewable annually by Holiday Isle at its sole option. Holiday Isle could non-renew without cause or justification.

      . Moreover, the evidence shows that from 1984 when Rip's opened, to 1996, just a few months before Hallock purchased an interest in Rip's via the joint venture agreement, Rip's did not serve breakfast. Because breakfast was skipped for twelve years, it hardly seems that the inclusion of breakfast service was an integral part of the joint venture agreement. The joint venture agreement certainly does not speak to breakfast being a requirement.


author: STEVENSON, J.

text:
    Willie JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2107.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Appellant, Willie Jones, was tried by jury and convicted of sexual battery with a deadly weapon, burglary with a battery or while armed, simple battery and resisting arrest without violence. On appeal, Jones claims that the evidence was insufficient to establish that the “stun gun” used to support the sexual battery with a deadly weapon and armed burglary charges was, in fact, a dangerous or deadly weapon. In addition, Jones argues that the trial court committed error in giving a jury instruction on burglary which contained the “remaining in” language. We agree with Jones’s argument concerning the weapon, but we find no fundamental error in the jury charge.

The incident occurred on April 25, 2002, in Hollywood, Florida. Jones went to the apartment of the victim and asked if he could see her roommate. The victim informed Jones that the roommate was at work. At that point, Jones exhibited a “stun gun” and told the victim to “get back in the house.” Jones pulled the trigger on the device and it emitted a blue light and a buzzing sound. The victim testified that Jones told her to be quiet or he would kill her. Jones then pushed his way into the home, where he later assaulted the victim in her bedroom.

Jones was convicted of sexual battery while using, or threatening to use, a “deadly” weapon and burglary with battery or while armed with a “dangerous” weapon. See §§ 794.011(3), 810.02(l)-(2), Fla. Stat. (2002). Courts have found the two terms, “deadly weapon” and “dangerous weapon,” to be interchangeable. See King v. State, 779 So.2d 466 (Fla. 2d DCA 2000). “ ‘A ‘deadly weapon’ has generally been defined to be one likely to produce death or great bodily injury.’ ” Dale v. State, 703 So.2d 1045, 1047 (Fla.1997)(quoting Goswick v. State, 143 So.2d 817, 820 (Fla.1962), receded from on other grounds, State v. Smith, 240 So.2d 807 (Fla.1970)).

In the instant case, the State had the burden of proving that the stun gun was a deadly weapon. See Wilson v. State, 823 So.2d 855 (Fla. 1st DCA 2002). The State failed to meet its burden since there was no evidence in the record to support a finding that the stun gun was a deadly weapon by its ordinary use or in the manner in which it was used on the victim. See Nguyen v. State, 858 So.2d 1259, 1260 (Fla. 1st DCA 2003)(noting that no case in Florida has determined that a stun gun qualifies as a “deadly weapon” as a matter of law). Thus, we agree that the evidence was legally insufficient to find Jones guilty of sexual battery while using, or threatening to use, a deadly weapon.

As for the burglary charge, the jury found Jones guilty of “burglary with a battery or while armed, as charged in the information.” Although Jones could not be convicted of burglary while armed, there was evidence that Jones committed a battery during the course of the burglary. Indeed, the jury found Jones guilty of two separate counts of simple battery, which were committed during the course of the burglary. Accordingly, Jones’s conviction for “burglary with a battery or while armed,” as charged in the information, must be permitted to stand.

We have considered Jones’s argument that the “remaining in” language should not have been included in the burglary instruction, but since the issue was first raised on appeal, we find no fundamental error. The only evidence at trial concerning Jones’s entry into the victim’s apartment was that he barged in while threatening her with a weapon. Jones can make no plausible argument that, without the instruction, the jury might have acquitted him, believing that he did not form any intent to commit an offense until after he entered the victim’s residence. See Roberson v. State, 841 So.2d 490 (Fla. 4th DCA)(holding that the inclusion of the “remaining in” language cannot be fundamental error where there is no dispute that the entry was not consensual), review denied, 848 So.2d 1155 (Fla.2003); Alexandre v. State, 834 So.2d 344, 347 (Fla. 4th DCA 2003)(noting that the error is harmless where there was no plausible way that the jury could have concluded that the defendant formed the intent to assault the victim while he was “remaining in” the dwelling).

In conclusion, we reverse the conviction for sexual battery with a deadly weapon and remand so that the trial judge may enter judgment for the lesser offense of sexual battery pursuant to section 794.011(5). See § 924.34, Fla. Stat. (2004). Additionally, appellant must be re-sentenced accordingly. In all other respects, the judgment is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

GROSS and HAZOURI, JJ., concur.

      . In finding the defendant guilty of sexual battery with a deadly weapon under section 794.011(3), the jury necessarily found that defendant was guilty of the unaggravated form of sexual battery enumerated in section 794.011(5), which does not involve physical force or the use of violence. Thus, section 924.34 can be applied in this case without creating any Sixth Amendment concerns under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See Sigler v. State, 881 So.2d 14, 20 (Fla. 4th DCA 2004)(finding section 924.34 unconstitutional in circumstances where “the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element” of the lesser included offense).


author: WARNER, J.

text:
    Sera MARTELL, Petitioner, v. Ronald N. DUBNER, Respondent.
    No. 4D04-1467.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.

      Karen Coolman Amlong of Amlong & Amlong, P.A., Fort Lauderdale, for petitioner.
    Daniel M. Lands of Lands & Malinger, P.A., Boca Raton, for respondent.
   WARNER, J.

Petitioner, Sera Martell, seeks a writ of certiorari to quash an order dissolving a lis pendens. In her complaint, Martell is seeking a constructive trust on investment property titled in the name of her ex-boyfriend, respondent Ron Dubner, but in which she invested money. Martell alleged that she invested in the property based on Dubner’s promise that she was a partner in the property. Because the complaint and the evidentiary hearing show a “fair nexus” between the property and her cause of action, the court departed from the essential requirements of law in dissolving the lis pendens.

Martell filed suit for a constructive trust and for money damages when Dubner obtained a contract to sell the property. The complaint alleged that she contributed $25,000 to the purchase of the property that was acquired by Dubner and his law partner. She alleged that Dubner promised that she would be a co-owner of his half interest. The complaint alleges further contributions to the property, including obtaining a mortgage to buy out the law partner and the payment of various expenses on the property. Together with the complaint, Martell filed a notice of lis pendens.

Dubner moved to dissolve the lis pen-dens, and the trial court held a hearing. At the hearing, Martell clarified that she did not pay the $25,000 directly to purchase the investment property. Instead, she loaned Dubner the money to buy his ex-wife’s interest in their home. When Dubner was contemplating purchasing the investment property, he told her that he would make her a half partner on the property instead of paying her back the $25,000. Martell introduced a ledger of her trust account showing that between 1991 and 2001, she made some payments on the mortgages on the property and for some repairs and maintenance. She continued to put money into the property, relying on his agreement that she was a co-owner. However, there was nothing in writing showing that she had ownership.

Martell also presented the testimony of a real estate agent she contacted about swapping the investment property with property listed by the agent. When her name did not appear on the property title, the real estate agent called Dubner who told him that Martell and he were partners on the property.

Dubner testified that he did not remember speaking to the real estate agent and denied ever saying that Martell owned an interest in the property. He said Martell never gave him any money towards the purchase price or for maintenance. He also said that he paid Martell back the $25,000 he borrowed to pay off his ex-wife’s interest in their home. After the presentation of evidence, the trial court ruled that Martell did not meet her burden of proof and dissolved the lis pendens.

To support a lis pendens, the plaintiff is not required to show a substantial likelihood of success on the merits, only that there is a “fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.” Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla.1993) (footnote omitted). “The relevant question is whether alienation of the property or the imposition of intervening liens, if either actually occurred, conceivably could disserve the purposes for which lis pendens exists. Where the answer is yes, fair nexus must be found.” Id. (footnote omitted).

To establish a fair nexus requires a showing of a “good faith, viable claim.” Acapulco Constr., Inc. v. Redavo Estates, Inc., 645 So.2d 182, 183 (Fla. 3d DCA 1994). A proponent is not required to actually prove its constructive trust claim at the motion to dissolve the lis pendens. See Von Mitschke-Collande v. Kramer, 869 So.2d 1246, 1251 (Fla. 3d DCA 2004).

Here, Martell not only alleged matters sufficient to establish a constructive trust in the property, see Dietrich v. Winters, 798 So.2d 864 (Fla. 4th DCA 2001), but she also offered proof. Whether she will prevail at trial on the merits is not the issue. If Dubner were to sell the property prior to the hearing on the merits of the case, then the purpose for which the lis pendens exists would be thwarted. Therefore, the requirements of Chiusolo have been met.

We grant the petition, quash the order, and remand for reinstatement of the lis pendens. On remand, the trial court may consider whether a bond is required. See Med. Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 675 So.2d 915 (Fla.1996).

FARMER, C.J., and GUNTHER J„ concur.


author: PER CURIAM.

text:
    Deshone STACY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3520.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.

      Deshone Stacy, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse and remand the summary denial of Stacy’s motion for postconviction relief for the attachment of portions of the record that conclusively refute his claims of involuntary plea and ineffective assistance of counsel, or for an evidentiary hearing.

Just as in Robinson v. State, 792 So.2d 632 (Fla. 4th DCA 2001), the portions of the record supporting the summary denial reflect an ambiguity in connection with what was represented to be Stacy’s maximum sentence, in that the plea form which he signed was an outdated form which did not detail sentencing under the Criminal Punishment Code, but referred instead to the sentencing guidelines which were not applicable to his offense. In one paragraph, the form indicated that the judge could sentence him to up to the maximum prison months computed under the sentencing guidelines; in another, it stated that his maximum possible penalty was fifteen years (the statutory maximum for his offense). Although Stacy represented at the plea colloquy that he read and understood the form, there was no clarification of how his maximum possible sentence had been calculated, and thus his claim that counsel misadvised him that he could be sentenced to no more than sixteen months (under the guidelines) has not been conclusively refuted.

We note that the trial court denied the same motion in two different orders, as to two cases which were consolidated for plea and sentencing. The order summarily denying the motion as to L.T. case no. 99-1 has already been affirmed in this court’s case no. 4D02-1357. See Stacy v. State, 829 So.2d 231 (Fla. 4th DCA 2002) (Table). We hereby vacate that affirmance and likewise reverse and remand the summary denial in that case, on the same basis as we do in this case.

GUNTHER, GROSS and TAYLOR, JJ., concur.


author: PETERSON, J.

text:
    Evelyn CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2210.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2004.

      Evelyn Chapman, Riverview, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PETERSON, J.

Evelyn Chapman appeals the denial of her motion for sentence reduction pursuant to Florida Rule of Criminal Procedure 3.800(a), alleging that the sentencing court erred by assessing 120 points on her score-sheet for victim injury.

Chapman was indicted for armed robbery and first-degree murder. The homicide occurred when two of Chapman’s accomplices, Dufrane Amelia Khaleel and Fernando Rivas, were killed in an automobile accident while fleeing from the scene of the robbery. Khaleel was the driver of the automobile and Rivas was a passenger.

Chapman entered a negotiated plea of no contest to the robbery and the State nolle prossed the murder charge. The negotiated plea included a “bottom of the guidelines” sentence and Chapman received 138 months in the Department of Corrections. This was the lowest permissible sentence according to Chapman’s scoresheet which included in the total score 120 points for victim injury for the death of Rivas.

Florida Rule of Criminal Procedure 3.704(d)(9) provides that a “victim injury must not be scored for an offense for which the offender has not been convicted.” Section 921.0021(7)(a), Florida Statutes (1999), defines victim injury as a “physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.” (Emphasis added.) Because Chapman was not convicted of first-degree murder, the only charge in which the death occurred, an imposition of points for victim injury was incorrect. See, e.g., Geary v. State, 675 So.2d 625 (Fla. 2d DCA), review denied, 680 So.2d 422 (Fla.1996).

An erroneous inclusion of victim injury points is cognizable under rule 3.800(a) as long as the error is ascertainable from the face of the record. See, e.g., Long v. State, 853 So.2d 511 (Fla. 4th DCA 2003); Reynolds v. State, 827 So.2d 356 (Fla. 1st DCA 2002); Dickson v. State, 826 So.2d 412 (Fla. 2d DCA 2002). Resolution of Chapman’s complaint should not entail more than the examination of the indictment, judgment, sentence, stipulation for settlement and scoresheet. We do not believe that an evidentiary determination is necessary to resolve the claim. Of course, the plea agreement could include Chapman’s acceptance of the sentence received in exchange for the nolle prosse of the murder charge and that is also easily determined by review of the agreement.

We vacate the order denying relief and remand for further proceedings to determine whether a denial or grant of relief is appropriate after further review of the pleadings.

ORDER VACATED; REMANDED.

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


author: THOMPSON, J.

text:
    Robert L. FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2243.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2004.
    Robert L. Freeman, Lake City, pro se.
    No Appearance for Appellee.
   THOMPSON, J.

In this 12-year-old case, Robert L. Freeman was convicted of sexual battery. He was sentenced in September 1992 as a habitual violent felony offender to 30 years incarceration, with a 15-year minimum mandatory term. His conviction was affirmed on direct appeal. Freeman v. State, 630 So.2d 195 (Fla. 5th DCA 1993). He then began his post-conviction assaults. At one point, this court recounted Freeman’s post-judgment challenges to date, stated that his current proceeding was successive, and added: ‘We further warn Freeman that future such motions will be stricken as an abuse of process and he may be barred from filing any further pro se appeals regarding his conviction and sentence.” Freeman v. State, 683 So.2d 1156, 1156 (Fla. 5th DCA 1996).

Freeman continued his post conviction attacks. This court issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999) (court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond), directing defendant to respond. He did not. We hold that his successive challenges constitute an abuse of the judicial system. See, e.g., Gaffney v. State, 878 So.2d 470 (Fla. 5th DCA 2004); Proctor v. State, 869 So.2d 752 (Fla. 5th DCA 2004); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995); see also Baker v. State, 878 So.2d 1236 (Fla.2004) (limit on successive claims is necessary to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice).

Therefore, in accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve judicial resources, we prohibit Freeman from filing any additional pro se appeals, pleadings, motions and petitions relating to his conviction and sentence in the underlying case. Any further pleadings filed in this court relating to his conviction and sentence must be reviewed and signed by an attorney who is licensed to practice law in this state. The clerk of the court of the Fifth District Court of Appeal is directed not to accept any further pro se filings or pleadings from Robert L. Freeman regarding Orange County, Ninth Judicial Circuit Court Case No.l992-CF-266.

AFFIRMED; FUTURE PRO SE FILINGS PROHIBITED.

PETERSON and TORPY, JJ., concur.


author: SHARP, W., J.

text:
    Matthew J. PLUCINIK, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-2772.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2004.

      Matthew J. Plucinik, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
   SHARP, W., J.

Plucinik seeks certiorari review of the trial court’s order, which denied his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(c), for modification of his sentence. We deny the petition without prejudice to file a renewed Rule 3.800(c) motion after Plucinik seeks and obtains recall of the mandate issued in 5D03-2514.

The circumstances of this case are somewhat complex. The trial court denied Plu-cinik’s motion, not on the merits, but because it was untimely and the court lacked jurisdiction to act on the motion. At the time of making its decision, the trial court was correct, because Plucinik had failed to file his motion for purposes of the mailbox rule until July 9, 2004, more than 60 days after this court issued its mandate.

However, Plucinik argues that this court was premature in issuing its mandate, since he had filed a motion for rehearing which was pending at the time the mandate issued. Pursuant to Rule 9.330(a), a motion for rehearing may be filed within 15 days after the appellate court has issued its decision. Plucinik filed his motion for rehearing, for purposes of the mailbox rule, on April 26, 2004, as indicated by the Sumter Correctional Institution filing stamp. This court issued its mandate on April 30, 2004, and denied the motion for rehearing as untimely two weeks later. Thus it appears this court’s mandate was prematurely issued.

Next, the question of whether this court can recall its mandate arises because this court’s per curiam affirmance in 5D03-2514 and mandate were issued during the January 2004 term and the court is presently in its July 2004 term of court. The general rule is that a motion to withdraw a mandate may be granted only during the term in which it is issued.

However, this court has recognized a narrow exception for circumstances like those in this case. In Zielke v. State, 839 So.2d 911 (Fla. 5th DCA 2003), the mandate was improvidently issued on the erroneous conclusion that no timely motion for rehearing had been filed. Even though the term of court had already expired, this court granted a motion to recall the mandate, after it determined the motion for rehearing had, in fact, been timely. The court explained:

We conclude that our jurisdiction had not expired because a motion for rehearing subsequently determined by us to be timely was filed and pending when the prior term of court ended. This being so, the mandate was improvidently issued and should be withdrawn.

839 So.2d at 913.

Thus, we conclude that Plucinik is entitled to seek recall of the mandate issued in his case. Because the trial court was correct in concluding Plucinik’s motion was untimely based on the status of the present record in his case, we deny his petition. However, our denial is without prejudice to Plucinik to seek recall of the mandate issued in 5D03-2514, in this court, and to request consideration on the merits of his timely motion for rehearing. Depending on the disposition of the motion for rehearing, Plucinik is also without prejudice to file a renewed motion, pursuant to Rule 3.800(c), in the trial court and to obtain a ruling on the merits, provided that renewed motion is timely with regard to any mandate subsequently issued by this court.

DENIED without prejudice.

PLEUS and ORFINGER, JJ., concur.

      . See Dominguez v. State, 556 So.2d 499 (Fla. 1st DCA 1990).

      . This court issued a per curiam affirmance in 5D03-2514 on April 13, 2004 and the mandate issued on April 30, 2004.

      . See Fla. R.App. P. 9.420(a); Thompson v. State, 761 So.2d 324 (Fla.2000).

      . See State Farm Mutual Auto. Ins. Co. v. Judges of the Dist. Ct. of App., 5th Dist., 405 So.2d 980 (Fla.1981); Jackson v. State, 521 So.2d 293 (Fla. 1st DCA 1988).


text:
    Sylvester HERRERA, Jr., Appellant, v. Jennifer SANCHEZ, Appellee.
    No. 5D04-376.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2004.
    Sylvester Herrera, Jr., Royal Palm Beach, pro se.
    Maureen Monaghan Matheson, Reinman Matheson Vaughan & Durham, P.A., Melbourne, Lead Counsel for Appellee.

      Pamela Huddleston, Huddleston & Pa-lumbo, P.A., Melbourne, Co-Counsel for Appellee.
   PETERSON, J.

The former husband, Sylvester Herrera, Jr., appearing pro se, appeals an order finding him in civil contempt of court for failing to pay court-ordered child support to the former wife, Jennifer Sanchez. Because the record is unclear as to whether the former husband has the ability to pay the court-ordered child support, we reverse.

The judgment dissolving the parties’ five-year marriage, which produced one child, required the former husband to pay $180 in child support every two weeks. The former husband paid child support as ordered for several years, but in 2001 he alleged that he began having problems with employment and began falling behind in child support payments. In October, 2002, he sought a downward modification of child support. The record does not indicate that a hearing was held on his petition. In July, 2003, the former wife filed her first motion for contempt for failure to pay child support. Once again, in September, 2003, the former husband filed another petition for the downward modification of child support and the trial court found him to be insolvent and waived the filing fee. The record does not indicate that a hearing was held on the second petition. A hearing, however, was held in December, 2003, on the former wife’s amended motion for contempt for failure to pay court-ordered child support. Following this hearing, the trial court entered an order finding, inter alia, that because the former husband had previously earned approximately $32,000 per year, and because he is capable of making at least minimum wage, he has the ability to pay child support. Accordingly, the former husband was held in contempt of court and ordered to pay $500 immediately or face ten days incarceration. After finding the former husband in contempt, the trial court again found the former husband insolvent, this time for purposes of appeal.

In family civil contempt proceedings, the movant must establish that the respondent has been ordered to pay support and that the respondent has failed to make those payments. E.g., Lawrence v. State, Dept. of Revenue ex rel. Walker, 755 So.2d 139 (Fla. 2d DCA 1999), citing Bowen v. Bowen, 471 So.2d 1274 (Fla.1985). The burden then shifts to the respondent to prove that he does not have the ability to pay the support, Bowen, 471 So.2d at 1278-79. If the court finds that the respondent has willfully violated the court ordered support, it may order incarceration contingent upon a purge payment if it makes a finding that the respondent has the ability to pay the purge amount. Id.

The former husband’s ability to pay the purge amount is not at issue because he paid the $500 after the court found him in contempt. What remains at issue, however, is the former husband’s ability to pay the court-ordered child support. See, e.g., Wendel v. Wendel, 875 So.2d 820 (Fla. 2d DCA 2004) (holding that a one-time payment of a purge amount to satisfy a civil contempt order does not establish the ability to pay court-ordered child support on an ongoing basis so as to warrant affir-mance of contempt order). Because the trial court’s finding that the former husband has the ability to pay the court-ordered child support is inconsistent with its finding that the former husband was indigent for the purposes of the proceedings below as well as appeal purposes, and because it does not appear that a hearing was ever held on the former husband’s petitions for downward modification of child support, we must conclude that the order of contempt was not warranted. When the trial court found that the former husband was capable of at least making a minimum wage, the appropriate action was to order him to seek proper employment through Florida State Employment Services and to report weekly until employment is secured. Bowen, 471 So.2d at 1279; Lawrence, 755 So.2d at 140 (holding that court’s recourse in civil contempt proceeding in family support matter, where child’s father was self-employed and appeared to choose work in a manner that prohibited him from having resources to pay ordered child support, was not to hold him in contempt of court, but to order him to seek work). We remand and direct the trial court to conduct a hearing on the former husband’s petitions for downward modification of child support.

Finally, we reverse the trial court’s award of attorney’s fees to the former wife for the court’s reconsideration of this matter. On remand, the trial court shall first determine the respective parties’ need and ability to pay before awarding attorney’s fee, if any.

REVERSED AND REMANDED.

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


text:
    Stanley READ, Appellant, v. CTL DISTRIBUTORS and Crawford & Company, Appellees.
    No. 1D03-3675.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.
    E. Taylor Davidson and Merette Oweis of DiCesare, Davidson & Barker, P.A., Lakeland, for Appellant.
    Ricki L. Whipple and Rusten C. Hurd of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellees.
   PER CURIAM.

Claimant, Stanley Read, challenges two rulings of the Judge of Compensation Claims (JCC), alleging error, in (1) the JCC’s finding that claimant was not permanently and totally disabled (PTD) until November 20, 2002, because he had not achieved overall maximum medical improvement (MMI) from both his physical and psychiatric injuries until that date, and (2) the JCC’s denial of the claim for impairment benefits. As to the former issue, we affirm, and agree that competent, substantial evidence supports the JCC’s finding of MMI. As to the second issue, we reverse and remand. In this regard, we note the E/C concedes that if the court affirms the JCC’s finding that claimant attained PTD status as of November 20, 2002, the cause should be remanded with directions to determine the appropriate amount of permanent impairment benefits. Consequently, we direct the JCC to determine an appropriate award of impairment benefits for the period from April 1, 2001, the date TTD benefits terminated by operation of statute. Because the E/C paid claimant TTD benefits for a period of time from the date of the accident, April 1, 1999, until January 14, 2002, it shall be allowed a credit for TTD benefits it paid claimant subsequent to April 1, 2001.

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, ALLEN and HAWKES, JJ., concur.


text:
    SOFA SOLUTIONS, INC., d/b/a Norwalk The Furniture Idea, Appellant, v. DESIGN BUILD SYSTEMS, INC., Appellee.
    No. 1D3-4142.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.
    Joseph M. Scheyd, Jr. Destín, for Appellant.
    John T. Brown, John T. Brown, P.A., Ft. Walton Beach, for Appellee.
   PER CURIAM.

This is an appeal from an amended final judgement entered in a non-jury case in which appellant was the plaintiff below. We find that the trial court committed no error in considering and granting appel-lee’s motion for rehearing. See Cape Royal Realty, Inc. v. Kroll, 804 So.2d 605, 606 (Fla. 5th DCA 2002) (“[Tjrial court has the power and authority to completely alter or change its final judgment or order... Langer v. Aerovias, S.A., 584 So.2d 175, 176 (Fla. 3d DCA 1991) (noting that trial court, upon reconsideration, may alter its previous judgment as necessary to arrive at the correct result).

AFFIRMED.

KAHN, WEBSTER, and POLSTON, JJ., concur.


text:
    Jeffrey Scott WHITTINGTON, Appellant, v. Heather Nicole SHIMP and Gary Shimp, Appellees.
    No. 1D04-0638.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.
    Keith A. Mclver, of Chase, Quinnell, Mclver & Jackson, P.A., Pensacola, for Appellant.
    Michael L. Guttmann, Pensacola, for Ap-pellees.
   PER CURIAM.

AFFIRMED. Bellomo v. Gagliano, 815 So.2d 721 (Fla. 5th DCA 2002).

WOLF, C.J., BARFIELD, and WEBSTER, JJ., concur.


text:
    FLORIDA DEPARTMENT OF CORRECTIONS and Florida Parole Commission, Appellants, v. Neil KRAUSE, Appellee.
    No. 1D04-2661.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.
    Barbara Debelius, Assistant General Counsel, Department of Corrections, Tallahassee, and Terri León-Benner, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Appellants.
    Appellee Neil Krause, pro se, Lake Butler.
   PER CURIAM.

REVERSED and REMANDED for further proceedings. See Davidson v. Crosby, 883 So.2d 866 (Fla. 1st DCA 2004); Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004).

KAHN, WEBSTER, and POLSTON, JJ., concur.


text:
    James WASHINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-4111.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.
    James Washington, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is denied. See Walker v. State, 863 So.2d 355 (Fla. 1st DCA 2003).

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    David L. RHOTEN, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, FLORIDA DIVISION OF REAL ESTATE, Appellee.
    No. 1D04-2277.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.

      Lisa Shearer Nelson of Holtzman, Equ-els, Tallahassee, for appellant.
    Nancy Campiglia, General Counsel, and Gail Scott Hill, Assistant General Counsel, Department of Business and Professional Regulation, Tallahassee, for appellee.
   PER CURIAM.

Based on appellee’s confession of error, the final order is reversed and remanded with directions that appellant be afforded a formal hearing before the Division of Administrative Hearings.

REVERSED and REMANDED.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Annette CARROLL, Petitioner, v. FLORIDA STATE HOSPITAL and Division of Risk Management, Respondents.
    No. 1D04-2931.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.
    A. Dean Johnson of the France Law Firm, P.A., Tallahassee, for petitioner.
    Walter J. Havers, Staff Counsel, Office of the Judge of Compensation Claims, Division of Administrative Hearings, Tallahassee, for respondents.
   PER CURIAM.

Because we determine that the Judge of Compensation Claims should have granted the claimant’s motion to disqualify, the petition for writ of prohibition is granted. We are confident that the Judge of Compensation Claims will promptly comply with the ruling of this court, therefore, we withhold formal issuance of the writ. Golden v. Florida Dept. of Corrections, 739 So.2d 1273 (Fla. 1st DCA 1999).

Petitioner’s request for a blanket disqualification is denied. Livingston v. State, 441 So.2d 1083 (Fla.1983).

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


text:
    Eddie L. WHITE, Appellant, v. McCRORY BUILDING COMPANY and St. Paul Insurance Company, Appellees.
    No. 1D04-3405.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.
    Eddie White, pro se, appellant.
    No appearance for appellee.
   PER CURIAM.

Because claims for benefits remain ripe and pending below, this appeal is hereby dismissed for lack of jurisdiction. Appellant is advised that he may seek review after the Judge of Compensation Claims issues a final order on the merits of his claims.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Victor H. MONTESINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1924.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2004.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Mitchell v. State, 717 So.2d 609 (Fla. 4th DCA 1998).


text:
    Gary McKEEHAN, Appellant, v. ATLANTIC III AT THE POINT CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D03-2261.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2004.
    Wasson Associates; Annabel Majewski and Steven N. Klitzner, for appellant.
    Roberts Reynolds Bedard Tuzzio; Benjamin L. Bedard and Laura E. Schwartz (West Palm Beach), for appellee.
    Before GERSTEN, GREEN and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See § 718.301(5), Fla. Stat. (2000).


text:
    SOCFIN US, INC., Appellant, v. CORPORATION COMPANY OF MIAMI, Appellee.
    No. 3D04-1640.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2004.
    FeldmanGale, P.A., and Steven E. Ei-senberg, and Lawrence Gordon, Miami, for appellant.
    Murai, Wald, Biondo, Moreno Brochin, P.A., and Lynette Ebeoglu McGuinness, and Gerald B. Wald, Miami, for appellee.
    Before GREEN, FLETCHER, and WELLS, JJ.
   PER CURIAM.

Affirmed. See § 48.198(g), Fla. Stat. (1995).


text:
    Fernando F. MATUS, Appellant, v. GRMI, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D04-551.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2004.
    Alfonso Oviedo-Reyes, for appellant.
    John D. Maher, and Louis A. Gutierrez (Tallahassee), for appellee Unemployment Appeals Commission.
    Before COPE, RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

Fernando F. Matus (“claimant”) appeals an order denying unemployment compensation benefits. We affirm.

According to the findings of the Appeals Referee:

Findings of Fact: The claimant became employed on February 15, 2001, as a line cook and expeditor in the kitchen of the employer, a restaurant. He worked Friday through Tuesday, from 4:00 p.m. to closing, and earned $10.75 per hour. The claimant arrived to work early on July 12, 2003, and took a meal in the restaurant at approximately 3:30 p.m. The general manager observed the claimant and believed that. she noted signs of intoxication. She approached the claimant and told him that she did not want him working that day because of the condition that she observed and told him to go home and return the next day. The claimant cursed and protested that he was able to work. The general manager told the claimant again to “sleep it off and come back tomorrow.” The claimant threw his plate against the wall, turned the table upside down, and went home. The employer discharged the claimant the next day, July 13, 2003, for insubordination.

During the incident there were restaurant patrons at three or four tables in the dining room.

We conclude that this amounted to disqualifying misconduct for purposes of the unemployment compensation statute. See Stahl v. Florida Unemployment Appeals Comm’n., 502 So.2d 78 (Fla. 3d DCA 1987). The fact that the claimant had not yet clocked in on the employee time clock makes no difference to the analysis. See Miller v. Unemployment Appeals Comm’n., 690 So.2d 752 (Fla. 5th DCA 1997) (discharge for misconduct occurring within store while claimant was off duty).

Affirmed.