author: POLEN, C.J.

text:
    Patricia A. BECKER, Appellant, v. Hooshang HOOSHMAND, M.D., Appellee.
    No. 4D02-261.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.
    Rehearing Denied April 24, 2003.
    Kevin S. Doty of Hatch & Doty, P.A., Vero Beach, for appellant.
    Janet M. Carney and Louis B. Vocelle, Jr., of Clem, Polackwich, Vocelle & Berg, L.L.P., Vero Beach, for appellee.
   POLEN, C.J.

This appeal arises from a trial court’s denial of a defendant’s motion to dismiss based on alleged lack of personal jurisdiction. For the reasons explained below, we affirm the trial court’s decision.

Appellant, Patricia Becker, was named as the defendant in a multi-count civil action brought by Dr. Hooshmand. Becker is a resident of Chester County, Pennsylvania. Dr. Hooshmand is a licensed physician practicing in Indian River County, Florida.

In Dr. Hooshmand’s complaint, he alleged that Ms. Becker, through her activity on the internet, should be found liable for defamation, defamation per se, and tor-tious interference with a business relationship. Dr. Hooshmand further alleged that Ms. Becker is a moderator of an internet chat room and has posted numerous defamatory comments about him that were targeted to Florida residents, or people likely to seek medical card in the state of Florida, which resulted in injury to his reputation and business. Becker responded to the complaint with a motion to dismiss alleging that the court could not properly exercise jurisdiction over her. The trial court disagreed, and so do we.

The applicable standard of review is de novo. See Taylor v. City of Riviera Beach, 801 So.2d 259 (Fla. 4th DCA 2001).

The Florida Supreme Court has held that determining the propriety of the exercise of long arm jurisdiction in Florida is a two-step inquiry. Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). The first step is to determine if the plaintiff has established sufficient jurisdictional facts to subject the defendant to Florida’s long arm jurisdiction. Id. at 502. Once the first step has been satisfied, the second inquiry is whether the defendant possesses sufficient minimum contacts to satisfy the constitutional due process requirements. Id. at 500. The initial burden falls on the plaintiff to plead the basis for service under the long-arm statute. Id. at 502. The plaintiff may satisfy this initial burden either by alleging the language of the statute without pleading supporting facts, or by alleging specific facts that indicate that the defendant’s actions fit within one of the sections of Florida’s long arm statute, section 48.193. Id.

Additionally, “a defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position.” Id. at 502. If a defendant submits such an affidavit, then the burden shifts back to plaintiff to submit affidavits establishing the basis for jurisdiction. Id.

We conclude that the allegations of the complaint satisfy Dr. Hooshmand’s initial burden. Florida’s long arm statute provides in part:

“Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
... (b) Committing a tortious act within this state.
(f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either:
1. The defendant was engaged in solicitation or service activities within this state; ...

§ 48.193, Fla. Stat.

The initial threshold was satisfied in the complaint by alleging facts that indicate that the defendant’s actions fit within one of the sections of Florida’s long arm statute, section 48.193. Specifically, facts were alleged that indicate that the defendant committed a tortious act within the state.

Florida courts have long recognized that a cause of action in tort arises where the injury to the plaintiff first occurs. See, e.g., Williams v. Goldsmith, 619 So.2d 330 (Fla. 3d DCA 1993)(tortious interference with contract claim accrued where plaintiff suffered injury by loss of clients); see also Walt Disney World Co. v. Leff, 323 So.2d 602 (Fla. 4th DCA 1975)(personal injury action accrued where injury occurred); Tucker v. Fianson, 484 So.2d 1370 (Fla. 3d DCA 1986)(legal malpractice action accrued where asserted negligence impacted plaintiffs economic interest).

The Florida Supreme Court recently clarified this issue and noted that:

In order to commit a tortious act in Florida, a defendant’s physical presence is not required. Second, committing a tortious act in Florida under section 48.193(l)(b) can occur through the nonresident defendant’s telephonic, electronic, or written communications into Florida. However, the cause of action must arise from the communications.

Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002).

Furthermore, this court has previously held that committing a tortious act under Florida’s long arm statute does not require that a physical tort occur in this state. See, e.g, Carida v. Holy Cross Hosp., Inc., 424 So.2d 849 (Fla. 4th DCA 1982). (slanderous telephone conversations were sufficient.) Similarly, this court has concluded that mailing a letter into the State of Florida was sufficient to find that tortious conduct took place in the state. Silver v. Levinson, 648 So.2d 240 (Fla. 4th DCA 1994). Additionally, this court has held that making a defamatory statement over the telephone constitutes the commission of a tortious act for purposes of Florida’s long arm statute. Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716 (Fla. 4th DCA 1998). We find that the communications that form the basis of the allegations in this case are analogous to cases previously decided by this court and certainly fit within the recent Supreme Court’s discussion of electronic communications. As a result, we conclude that the initial burden required under Venetian Salami was satisfied.

Next we turn to Becker’s attempt to contest jurisdiction. Becker did submit an affidavit that contested the factual allegations of the complaint concerning jurisdiction. However, her affidavit was submitted ten days after the trial court ruled on the motion to dismiss. The trial court specifically commented on the lack of supporting affidavits in denying the motion based on the four corners of the complaint.

Whether or not Becker’s untimely affidavit challenges the allegations relating to jurisdiction pursuant to Venetian Salami, the affidavit was not filed in a timely manner. The trial court 'could not properly have considered it and was correct in ruling on the motion based on the four corners of the complaint. As a result, we affirm the decision of the trial court in all respects.

AFFIRMED.

GUNTHER and MAY, JJ„ concur.


source: Caselaw Access Project

author: SHEVIN, Judge.

license: Public Domain

text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. HMY YACHT SALES, INC., and The Last Detail Inc. of Palm Beach, Appellees.
    Nos. 3D02-2386, 3D02-3394, 3D02-1873.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.

      McAlpin & Brais and Keith Brais and James J. Feeney, for appellant.
    Houck, Hamilton & Anderson and David Gambach and Andrew Anderson, Miami, for appellee, HMY Yacht Sales, Inc.
    Kiesel, Hughes & Johnston and Richard Johnston, Fort Myers, for appellee, The Last Detail Inc. of Palm Beach.
    Before SCHWARTZ, C.J., LEVY and SHEVIN, JJ.
   SHEVIN, Judge.

We reverse the summary judgments entered in favor of defendants HMY Yacht Sales, Inc., and The Last Detail Inc. of Palm Beach. There are genuine unresolved issues of fact as to defendants’ liability for the fire that resulted in the destruction of the vessel. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); Meeks v. Florida Power & Light Co., 816 So.2d 1125, 1129-30 (Fla. 5th DCA 2002), review granted, No. SC02-1033, 837 So.2d 408 (Fla. Feb. 12, 2003); Birwelco-Montenay, Inc. v. Infilco Degremont, Inc., 827 So.2d 255 (Fla. 3d DCA 2001); Bitz v. Ed Knox CLU & Assoc., 721 So.2d 823 (Fla. 3d DCA 1998); Marine Office-Appleton & Cox Corp. v. Aqua Dynamics, Inc., 295 So.2d 370 (Fla. 3d DCA 1974); Pegg v. Bertram, 176 So.2d 918 (Fla. 3d DCA 1965).

In addition, we reverse the attorney’s fees awarded under sections 57.041 and 768.79, Florida Statutes (2001), as the basis for the award has been reversed. See Key v. Angrand, 638 So.2d 628 (Fla. 3d DCA 1994). As to the section 57.105, Florida Statutes (2001), fees awarded to HMY, we reverse the award as the negligence count was not completely lacking in merit. Plaintiff Insurance Company of North America’s negligence count against HMY does allege more than mere negligent selection of the cleaning company. See Read v. Taylor, 832 So.2d 219 (Fla. 4th DCA 2002). On remand, INA shall be given leave to amend the complaint so that it clearly comports with its assertions as to defendants’ alleged negligence in failing to turn off the light before leaving the vessel.

Reversed and remanded.


author: NORTHCUTT, Judge.

text:
    Franz Edward MITCHELL, Appellant/Petitioner, v. Carol Lynn MITCHELL, Appellee/Respondent.
    Nos. 2D01-2499, 2D02-1600.
    District Court of Appeal of Florida, Second District.
    March 14, 2003.

      Franz Edward Mitchell, pro se.
    Clifton C. Curry of Law Offices of Curry & Associates, P.A., Brandon, for Appellee.
   NORTHCUTT, Judge.

Franz Edward Mitchell appealed the final judgment dissolving his marriage to Carol Lynn Mitchell. While that appeal was pending, the circuit court rendered an order that arguably corrected a scrivener’s error in the final judgment. However, Mr. Mitchell contends that the order substantively modified the final judgment while the circuit court’s jurisdiction to do so was divested by virtue of the appeal. He challenged the order by petition for writ of certiorari. We have determined that the certiorari proceeding is more properly an appeal, and we treat it as such. We have consolidated the appeals sua sponte, and we reverse in part.

When the Mitchells married in June 1993, Mr. Mitchell owned a home in Tampa’s Carrollwood neighborhood and 41 acres of unimproved land in North Carolina. These properties remained titled in his name alone throughout the parties’ marriage. During the marriage, the Mitchells lived in the Carrollwood home and made mortgage payments on both properties with marital funds. Ms. Mitchell had two children from an earlier marriage, and two children were born to the parties. He is an instructor at Hillsbor-ough Community College. She is a self-employed nurse legal consultant.

For purposes of our discussion, we have consolidated Mr. Mitchell’s eleven issues into several categories.

CARROLLWOOD RESIDENCE

Oddly, the final judgment made two different dispositions of the Carroll-wood home. On one hand, it awarded Ms. Mitchell exclusive use and possession of the home as long as she has primary residential custody of the parties’ children. At the same time, the court purported to award the home to Ms. Mitchell outright.

When making the latter award, the circuit court determined that the $13,900 difference between the home’s market value and the mortgage indebtedness at the time of the marriage was nonmarital. But it characterized the entire appreciated value of the home as marital property. The final judgment ordered Mr. Mitchell to quitclaim all of his interest to Ms. Mitchell, thus awarding her the entire equity of $36,751.

This was error. Because Mr. Mitchell acquired the home prior to the marriage and kept it titled in his name, it was his ñonmarital property. § 61.075(5)(b), Fla. Stat. (2000). Section 61.075(1) provides that “the court shall set apart to each spouse that spouses’s non-marital assets and liabilities.... ” Absent an agreement, a nonmarital asset may not be awarded to the non-owner spouse as equitable distribution. See Belmont v. Belmont, 761 So.2d 406, 408 (Fla. 2d DCA 2000).

On the other hand, the enhancement in value of a nonmarital asset resulting from either party’s nonpassive efforts or the expenditure of marital funds is a marital asset. § 61.075(5)(a)2.; Belmont, 761 So.2d at 408. Here, the circuit court found that the home’s value had been enhanced due to marital funds and efforts. But any such enhancement was surely negligible. The Mitchells performed what were, at bottom, primarily cosmetic or maintenance-related improvements, such as wallpapering and the like. By far, the most important factor in the increase in the value of the property was passive market appreciation, which both parties’ appraisers calculated to be five to six per cent annually. This factor, alone, produced a market value of $185,000, which was the value assigned to the home by the circuit court.

Relying on Sizemore v. Sizemore, 767 So.2d 545, 547 (Fla. 5th DCA 2000), the circuit court concluded that a marital contribution to an asset’s value subjects the entire appreciation of the asset to equitable distribution even if the increased value is primarily created by passive inflation. That is not the law in the Second District. Where, as here, the increase in market value is attributable to “inflation or fortuitous market forces,” the expenditure of marital funds on the nonmarital asset does not transform the appreciated asset into marital property. See Straley v. Frank, 612 So.2d 610, 612 (Fla. 2d DCA 1992). But an increase in equity due to the use of marital funds to pay down a mortgage balance is a marital asset subject to equitable distribution. Cornette v. Cornette, 704 So.2d 667, 668 (Fla. 2d DCA 1997). Therefore, Ms. Mitchell’s rightful interest in the Carrollwood home is limited to her one-half share of the amount by which the mortgage was reduced with marital payments.

On remand, the circuit court shall calculate the amount by which marital funds reduced the mortgage indebtedness in order to equitably distribute to Ms. Mitchell her share of the enhanced equity. It shall also enter any necessary orders to restore legal title to the home to Mr. Mitchell. We will address the question of exclusive use and possession of the home as an aspect of child support later in the opinion.

NORTH CAROLINA PROPERTY

Citing Stevens v. Stevens, 651 So.2d 1306 (Fla. 1st DCA 1995), and Sizemore, 767 So.2d 545, the circuit court characterized the entire appreciation in the value of the nonmarital North Carolina property as a marital asset subject to equitable distribution despite the fact that the appreciation was entirely attributable to passive inflation. As in the case of the Carroll-wood home, this was error. It is undisputed that the property is unimproved. It has no sewer, septic, electric, or water connections. The record shows that the parties used marital funds to pay mortgage payments, taxes, and a road assessment fee. Under Straley, 612 So.2d 610, the increase in Mr. Mitchell’s equity due to the use of marital funds to pay down the mortgage is a marital asset to be divided between the parties. Otherwise, the North Carolina property is Mr. Mitchell’s nonmarital asset.

FAILURE TO CHARACTERIZE AND DISTRIBUTE LIABILITIES

The circuit court failed to characterize as marital or nonmarital three revolving charge accounts. On remand, the court shall comply with section 61.075(1) by determining whether these liabilities are marital or nonmarital. If the former, it shall include these liabilities in its equitable distribution scheme. See Esposito v. Esposito, 651 So.2d 1248, 1248 (Fla. 2d DCA 1995).

VISITATION

The final judgment ordered the parties to share parental responsibility for their children, with Ms. Mitchell designated as the primary residential parent. The court approved the recommendation of the court-appointed psychologist that the parties undertake a “nine day/five day” visitation schedule. But when setting forth the particulars, the judgment provided that Mr. Mitchell was to have visitation “every Thursday overnight and every other weekend Friday through Tuesday morning.” (Emphasis supplied.) Then, in seeming contradiction of that schedule, the judgment provided “[t]he summertime visitation schedule will reverse so that the Husband would then have the minor children 9 consecutive overnights and the mother would have the same visitation as the father until school began.”

In an order entered while Mr. Mitchell’s first appeal was pending, the circuit court observed that the phrase “every Thursday” was a scrivener’s error, and should have read “every other Thursday” in order to accomplish the “nine day/five day” visitation schedule. Indeed, that is our view of the matter. However, as Mr. Mitchell points out in his second appeal, the circuit court lacked jurisdiction to alter the final judgment while it was being appealed. Because the scrivener’s error is clearly apparent from the record, we remand for the circuit court to correct the error by amended final judgment. See Nigrelli v. Nigrelli, 807 So.2d 756 (Fla. 3d DCA 2002). This moots Mr. Mitchell’s second appeal.

CHILD SUPPORT

Mr. Mitchell raises several issues regarding his child support obligation. First, he complains that when setting child support the circuit court failed to consider, the fact that the visitation arrangement places the children with him a substantial amount of time. When the circuit court entered'its judgment in May 2001, section 61.30(ll)(b), Florida Statutes (2000), provided: “Whenever a particular shared parenting arrangement provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support,” based on a list of specified considerations. The statute did not indicate what qualified as a “substantial amount of time.”

The parties disagree about the percentage of time the children spend with Mr. Mitchell under the “nine day/five day” shared parenting arrangement. By our calculations, his share of the annual overnights is just over 40 percent. We believe this is a “substantial amount of time” as that phrase is used in the 2000 statute. This view is buttressed by the fact that in July 2001 the statute was amended to clarify that the court has discretion to adjust the child support award when the children spend “a significant amount of time, but less than 40 percent of the overnights, with the noncustodial parent,” and that the court “shall” adjust the child support award when the children spend “a substantial amount of time with each parent.” § 61.30(ll)(a)(10), (ll)(b). “Substantial amount of time” is defined to mean that “the noncustodial parent exercises visitation at least 40 percent of the overnights of the year.” § 61.30(ll)(b)(10).

We note that, although the 2000 statute provides that the court “shall” adjust the guidelines child support amount under these circumstances, we believe the statutory criteria under which the adjustment is to be made give the court discretion to leave the guidelines award untouched if the decision to do so can be justified according to those criteria. In other words, the statute seems to mandate that whenever a parenting scheme places the children with the noncustodial parent a substantial amount of time, the court must examine the child support award in light of the factors listed in subsection 11(b), and adjust it or not, accordingly.

The final judgment does not suggest that the circuit court took this requirement into account when setting Mr. Mitchell’s child support obligation. On remand the court shall re-examine the child support award with this provision in mind. We emphasize that we do not vouch for the precision of our calculations, nor do we direct the court in its application of the criteria set forth in section 61.30(ll)(b). The court is free to do its own calculations and to proceed under that section accordingly.

Mr. Mitchell also contends the circuit court erred when determining the parties’ incomes for purposes of calculating child support. The court found that Mr. Mitchell had a gross annual income of $57,846.97, based on his 1999 earnings. This figure consisted of his basic salary of $42,290, plus overtime pay. At the final hearing he estimated that his 2000 income would decrease to $52,000 due to declining enrollment and HCC policy changes which reduced his ability to teach and earn overtime.

Mr. Mitchell complains that the circuit court failed to make specific findings to support the income attributed to him. The court does not need to make additional findings to justify its use of the 1999 gross income figure. However, we are concerned about the effect that HCC’s policy changes and enrollment may have had on Mr. Mitchell’s overtime opportunities. When the circuit court considers this matter on remand, it should have the benefit of the husband’s income since 1999, which will enable the court to make a more informed calculation. See Lauro v. Lauro, 757 So.2d 523, 526 (Fla. 4th DCA 2000). The court properly included Mr. Mitchell’s overtime pay in its calculation of his gross income, section 61.30(2)(a)2., but the court must evaluate whether his overtime is regular and continuous. Regular overtime is included unless the court specifically finds that the opportunity to earn overtime will not be available as an income source in the future. Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999).

Mr. Mitchell maintains that the court understated Ms. Mitchell’s income and erred in failing to impute income to her. The court found that Ms. Mitchell was physically and emotionally able to work full time. Since the youngest child was born, however, she had been working only part-time. While the divorce was pending, she returned to school to become a legal nurse consultant, a position that she is able to perform from her home. At the time of the divorce she was billing only about ten hours a week at $50 per hour. She also earned about $300 monthly in a nursing position she kept to maintain her skills. Her 1999 gross income was $21,607, but she reported monthly income in 2000 that would produce an annual income of $27,312, and testified that she was attempting to obtain additional contract work from other law firms. At the time of the dissolution the parties’ youngest child was not yet six years of age, but all of the children have now reached school age and presumably are enrolled in school.

Notwithstanding that Ms. Mitchell’s income was rising at the time of the final hearing in 2000, the circuit court used her outdated 1999 gross income figure. This was error. See Hanley v. Hanley, 734 So.2d 529 (Fla. 4th DCA 1999).

Further, section 61.30(2)(b) requires the court to impute income to a voluntarily underemployed parent, although it may refuse to impute income to a primary residential parent if it finds that it is necessary for the parent to stay home with the children. Now that the children are school-age, Ms. Mitchell’s perceived ability to bill merely ten hours weekly is no longer justified. If she were to bill just twenty hours a week, her gross income would exceed $50,000. “[Pjublic policy favors imposing on parents an obligation to contribute to the child’s support.” Williams v. Beagle ex rel. Beagle, 777 So.2d 1213, 1214 (Fla. 5th DCA 2001). Accordingly, Ms. Mitchell must exercise her best efforts to work and bill additional hours while maintaining the flexibility that she needs as the primary residential parent. On remand, the court shall carefully examine Ms. Mitchell’s situation to determine whether she continues to be voluntarily underemployed. If so, and if her underemployment is not justified under section 61.30(2)(b), the court shall comply with the statute by imputing income to her.

The circuit court also erred in ordering Mr. Mitchell to pay for all of the children’s medical and dental insurance coverage without any sharing provision except as to deductibles and noncovered expenses. On remand the court must apportion the cost of such coverage by adding it to the basic obligation determined pursuant to section 61.30(6). § 61.13(l)(b); .30(8). See Hoffman v. Hoffman, 793 So.2d 128 (Fla. 4th DCA 2001).

In its final judgment, the court directed Mr. Mitchell to maintain a $100,000 policy of life insurance as security for his child support obligation. He cites Phillips v. Phillips, 796 So.2d 1289, 1290 (Fla. 5th DCA 2001), for the proposition that the cost of this insurance should have been apportioned between the parties in the same way that child support is apportioned generally. We agree, with two provisos: The cost of such insurance should be included in the parties’ basic child support obligation only to the extent that Mr. Mitchell must pay for it. Further, although Mr. Mitchell is free to purchase a life insurance policy that accrues cash value, the circuit court may apportion only an amount sufficient to purchase a term policy.

EXCLUSIVE USE AND POSSESSION OF MARITAL HOME

Our determination that the Car-rollwood home must remain Mr. Mitchell’s separate property also compels us to reverse the award to Ms. Mitchell of the home’s exclusive use and possession. A court may award exclusive possession of a jointly owned marital home to the custodial parent as an incident of the other party’s child support obligation. McDonald v. McDonald, 368 So.2d 1283, 1284 (Fla.1979). This authority does not extend to nonmarital real property absent a finding pursuant to section 61.30(13) that the noncustodial parent’s recurring income is insufficient to meet his child support obligation. Dyer v. Dyer, 658 So.2d 148, 149 (Fla. 4th DCA 1995). There was no such finding in this case. Therefore, we reverse this award.

When revisiting the child support on remand, the circuit court may again award Ms. Mitchell exclusive use and possession of the Carrollwood home during the children’s minority only if it makes findings, supported by competent, substantial evidence, demonstrating that such is necessary pursuant to section 61.30(13). Moreover, if the court makes such an award, it must determine the fair market rental value of the home and include that figure in Ms. Mitchell’s gross income for purposes of calculating child support under the statutory guidelines. See Bryan v. Bryan, 765 So.2d 829 (Fla. 1st DCA 2000); Cooper v. Cooper, 760 So.2d 1048, 1049 (Fla. 2d DCA 2000); Thomas v. Thomas, 712 So.2d 822 (Fla. 2d DCA 1998).

CONCLUSION

In summary:

1. We reverse the inclusion of the Car-rollwood and North Carolina properties in the equitable distribution scheme, and remand with directions to treat them as Mr. Mitchell’s nonmarital assets. On remand the court shall restore Mr. Mitchell’s title to the Carrollwood home. It shall revisit the equitable distribution in order to award Ms. Mitchell her share of the amount by which marital funds reduced the mortgages on these properties and to otherwise fashion an equitable distribution that does not include the Carrollwood and North Carolina properties.

2. On remand the circuit court shall determine whether the three revolving accounts mentioned above are marital or nonmarital liabilities. If the former, the court shall value the liabilities and include them in its equitable distribution scheme.

3. The court shall amend the final judgment to correct the scrivener’s error discussed above in order to achieve the “nine day/five day” visitation schedule otherwise contemplated in the judgment.

4. The child support award is reversed and remanded for reconsideration. On remand the court shall recalculate the child support amount based on current evidence of the parties’ incomes. Specifically, without limitation, the court shall consider Mr. Mitchell’s overtime experience since the final hearing, and it shall determine whether Ms. Mitchell is voluntarily underemployed for purposes of imputing income to her pursuant to section 61.30(2)(b). When refashioning the child support award, the court shall also comply with sections 61.13(l)(b) and 61.30(8) by including the children’s health insurance and health. care costs in the basic obligation established pursuant to section 61.30(6) and apportion those costs accordingly. Further, the court shall apportion the cost of life insurance Mr. Mitchell was ordered to obtain, as discussed above.

5. When revisiting the child support award, the court may grant Ms. Mitchell exclusive use and possession of the Car-rollwood home if the court makes findings based on competent, substantial evidence that Mr. Mitchell’s recurring income is not sufficient to permit him to satisfy his child support obligation. In that event, the fair market rental value of the home must be added to Ms. Mitchell’s gross income for purposes of calculating child support.

We reject Mr. Mitchell’s argument that the circuit court abused its discretion in its temporary financial orders and in awarding Ms. Mitchell exclusive use and possession of the marital home prior to the final judgment. We affirm without comment as to all other issues not discussed in this opinion.

Case No. 2D01-2499 is reversed in part, affirmed in part, and remanded for further proceedings.

Case No. 2D02-1600 is dismissed as moot.

ALTENBERND, C.J., and THREADGILL, EDWARD F„ Senior Judge, concur.

      . Assuming a nine or ten week summer recess from school, during which the nine day/five day schedule is reversed, and considering that the final judgment equally divides or alter-tiates holidays, vacations, and birthdays, Mr. Mitchell has the children roughly 40.5 or 41 percent of the overnights.


author: RAMIREZ, J.

text:
    Ian HENDRY, as trustee, etc., Appellants, v. Marcos ZELAYA, Appellee.
    No. 3D02-1074.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.

      Adorno & Yoss, and Jack R. Reiter, and William S. Berk, and Nicole E. Mestre, Miami, for appellants.
    Friedman & Friedman; and Lauri Waldman Ross, Miami, for appellee.
    Before JORGENSON, GERSTEN, and RAMIREZ, JJ.
   RAMIREZ, J.

Defendant Ian Hendry, trustee for U.S. Euro Micro Ventures, Inc., appeals from a final judgment pursuant to a jury verdict in favor of plaintiff Marcos Zelaya. We affirm.

US Euro Micro Ventures is a dissolved corporation which formerly owned the Cle-velander Hotel on Miami Beach. Marcos Zelaya is a police officer with the City of Miami Beach police department. On May 21, 1998, the Thursday evening before the Memorial Day weekend, Officer Zelaya and his girlfriend went to the Clevelander in order to celebrate his successful completion of SWAT team training. Approximately one hundred other off-duty officers, all dressed in civilian clothes, were also in attendance at the private party in a segregated area.

Knowing well in advance that the Memorial Day weekend patrons tended to become extremely rowdy, Hendry requested that the Miami Beach police department provide at least three off-duty uniformed officers to bolster Hendry’s security personnel. A few days prior, the City informed Hendry that it could only send one officer on May 21. That officer arrived at the Clevelander, observed the size of the crowd and the rowdiness of the patrons at the pool bar, and called the dispatcher to request more officers. He was told that none were available.

Additionally, the Clevelander uses in-house security personnel for crowd control. Ordinarily, the Clevelander uses five or six security personnel on a Thursday night, but some ten to twelve are required on a Memorial Day weekend. On May 21, however, only four in-house security personnel were working. The day before the incident, the security manager and the restaurant manager realized that the bar was going to be seriously understaffed during the weekend and advised Hendry of the problem. Against their advice, Hendry decided to proceed with only the scheduled four in-house personnel and one uniformed, armed police officer.

Detective Ricardo Arias was the one off-duty police officer working at the Clevelan-der on May 21. He noticed a large, somewhat rowdy gathering congregated at the yogurt bar and would ordinarily have approached them to request they settle down or leave, but as he was the only uniformed officer there, he decided against it.

As Officer Zelaya made his way through the crowd past the yogurt bar, someone seated at the pool bar reached out and grabbed Officer Zelaya’s girlfriend. Officer Zelaya pushed the man away, then someone else struck Officer Zelaya on the head with a beer bottle. Officer Zelaya suffered a severe skull fracture and required surgery to remove bone fragments from his brain. He now has permanent brain damage resulting in diminished cognitive functions such as memory loss and the inability to process information. He also has a constant tingling sensation in the area of the injury. The jury awarded him $4.5 million for past and future pain and suffering.

Hendry argues that the trial court erred by denying his motion for a directed verdict because the injury to Officer Zelaya was unforeseeable and the Cle-velander was maintained in a safe condition. We disagree. For a tavern owner to be hable for injuries inflicted on a patron by a third party, the risk of harm must be reasonably foreseeable. Stevens v. Jefferson, 436 So.2d 33, 34 (Fla.1983). The question of foreseeability is for the trier of fact. Id. at 35.

In Hall v. Billy Jack’s, Inc., 458 So.2d 760 (Fla.1984), where the plaintiff was hit over the head with a pool cue, the Florida Supreme Court stated that, if a bar owner knew or should have known of a general risk to patrons and failed to take reasonable steps to guard against that risk, the bar owner may be held liable for the resulting injuries. Id. at 761. The proprietor of a bar is bound to use every reasonable effort to maintain order among the patrons. Holiday Inns, Inc. v. Shelburne, 576 So.2d 322, 325 (Fla. 4th DCA 1991); Sabatelli v. Omni Internat’l Hotels, Inc., 379 So.2d 444, 445 (Fla. 3d DCA 1980).

There was evidence to support the jury’s verdict that due to the inadequate security, it was foreseeable that rowdy patrons would injure other patrons. Hendry testified that the Memorial Day weekend created severe crowd control problems at the Clevelander and that a larger than usual police presence was required, as well as additional in-house security personnel. However, the Clevelander was understaffed on the day in question and there was only one off-duty police officer rather than the minimum three needed to maintain the premises in a safe condition. Hendry made no attempt to request officers from other police departments or to add extra employees. Hendry’s motion for a directed verdict was thus properly denied.

Hendry also seeks reversal because the trial court disallowed his request to add the City of Miami Beach as a Fabre defendant. The trial court found the request made on the eve of trial to be untimely. We agree. Assuming arguendo that the City even had a duty to provide off-duty officers, Hendry knew well before the fateful incident that the City could not provide as many officers as he had requested. Therefore, if he was going to assert negligence on the part of the City, he knew sufficient facts at the time he filed his answer to plead that Miami Beach was a Fabre defendant.

Hendry argues that it was only upon taking the deposition of Detective Arias, the off-duty officer, that he became aware of the City’s policy regarding requests for off-duty personnel. However, the officer’s deposition was taken one month before trial and Hendry should have sought leave to amend immediately thereafter instead of waiting until the Friday before the scheduled trial, in effect the last possible moment. See Bogosian v. State Farm Mut. Auto. Ins. Co., 817 So.2d 968 (Fla. 3d DCA 2002).

We also affirm the trial court’s exclusion of the videotapes from various security cameras at the Clevelander. A trial court has broad discretion concerning the admissibility of evidence and its rulings will not be disturbed absent an abuse of discretion. Heath v. State, 648 So.2d 660, 664 (Fla.1995). Evidence that is confusing to the jury can be excluded pursuant to section 90.403, Florida Statutes (2002). The trial court in this case reviewed several versions of the tapes and determined that the images were confusing and lacked probative value for the jury. Instead, the trial court admitted a series of still-framed photographs taken from the tapes. We conclude the trial court did not abuse its discretion by excluding the security camera videotapes.

Nor did the trial court abuse its discretion by denying Hendry’s request for remittitur. A remittitur is entered when the amount awarded is excessive or contrary to the evidence. Fla. Stat. § 768.74(1)(2002). Section 768.74(4) provides that, “[i]f the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.” Implicit in this procedure is a remittitur amount that the adverse party can accept in lieu of a new trial. See Rowlands v. Signal Constr. Co., 549 So.2d 1380, 1382 (Fla.1989) (remittitur is meant to give the plaintiff an alternative to a new trial on damages). In this case, Hendry never suggested an amount for the trial court to grant as a remittitur. Even at oral argument, counsel for Hendry could not give the court a figure which his client would consider as not excessive. In Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla.1999), the Florida Supreme Court stated that the “procedure under section 768.74, Florida Statutes (1997), for remittitur and additur apply only upon the proper motion of a party.” (emphasis added). We do not consider a motion for remittitur or additur which never suggests a figure to be a proper motion under the statute. What Hendry really wants is not a remittitur, but a new trial. Thus, we will review his motion as one seeking a new trial.

A jury is accorded wide latitude in determining the amount of non-economic damages. See Rety v. Green, 546 So.2d 410 (Fla. 3d DCA 1989). In Bould v. Touchette, 349 So.2d 1181 (Fla.1977), the Florida Supreme Court stated that the trial court:

should never declare a verdict excessive merely because it is above the amount which the court itself considers the jury should have allowed. The verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.

Id. at 1184-85.

More recently, the Florida Supreme Court, in Brown, concluded that “[a] new trial may be ordered on the grounds that the verdict is excessive or inadequate when (1) the verdict shocks the judicial conscience or (2) the jury has been unduly influenced by passion or prejudice.” 749 So.2d at 498. There has been no suggestion of improper influence and the verdict, although generous, is not shocking. The award was based on the evidence presented and Zelaya’s life expectancy. See Mario v. K-Mart Corp., 756 So.2d 213 (Fla. 3d DCA 2000); Klefeker v. Ellington, 304 So.2d 545 (Fla. 3d DCA 1974). There was evidence that Officer Zelaya suffered permanent brain damage resulting in memory loss, that his marriage has been affected by his injuries, and that he continues to suffer from migraines and depression. Employing the reasonableness test set forth in Brown to determine whether the trial court abused its discretion, we find no such abuse. See Brown, 749 So.2d at 498.

Affirmed.


author: KLEIN, J.

text:
    Jorge FIGAROLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1039.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.
    Jorge Figarola, Arcadia, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appel-lee.
   KLEIN, J.

Appellant seeks review of the denial of his rule 3.800 motion to correct illegal sentence, which argued that the assessment of scoresheet points for sexual penetration, resulting in a sentence beyond the statutory maximum, violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The issue he raises is whether Apprendi applies retroactively on postconviction relief. In Hughes v. State, 826 So.2d 1070 (Fla. 1st DCA 2002), the court held that Apprendi did not apply retroactively to a similar claim being raised under rule 3.800.

The Hughes court analyzed for retroac-tivity based on the principles adopted by the Florida Supreme Court in Witt v. State, 387 So.2d 922 (Fla.1980). We agree with the Hughes court’s analysis that, under Witt, Apprendi is not retroactive.

Witt was based on the federal retroac-tivity decisions, Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The United States Supreme Court no longer uses the Linkletter-Stovall test. It narrowed the type of its decisions which would be retroactive in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The Teague court held that decisions would not be applied retroactively on collateral review unless: (1) the decision placed conduct beyond the power of the government to proscribe; or (2) the decision announced a “watershed” rule of constitutional criminal procedure such as the right to counsel. Id. at 311, 109 S.Ct. 1060.

State courts, however, are not required to follow federal law when deciding the retroactivity of their own decisions. Great No. Ry. Co. v. Sunburst Oil & Ref., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). Florida continues to follow Witt. State v. Callaway, 658 So.2d 983 (Fla.1995).

All federal circuit courts of appeal deciding the issue have also concluded that Apprendi does not apply retroactively on collateral review. In all probability the United States Supreme Court will agree with those decisions because of the narrow standard of retroactivity of Supreme Court decisions announced in Teague.

We conclude that Apprendi would not be retroactive under Witt or Teague. We therefore affirm but certify as a question of great public importance the same issue certified by the Hughes court: DOES THE RULING ANNOUNCED IN APPRENDI v. NEW JERSEY, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), APPLY RETROACTIVELY?

HAZOURI and MAY, JJ„ concur.

      . Some states have adopted Teague without discussing the fact that Teague is not binding on state courts when they are determining if their own decisions are retroactive. Mary C. Hutton, Retroactivity in the States: The Impact of Teague v. Lane on State Postconviction Remedies, ALA L. REV. 421, 457 (Winter 1993). The Supreme Court’s opinion in Teag-ue reflected that court's narrowing view of the rule of federal habeas corpus. The policy considerations behind Teague are not necessarily the same as those for state court post-conviction relief. Id.

        . See Sustache-Rivera v. United States, 221 F.3d 8 (1st Cir.2000); Forbes v. United States, 262 F.3d 143 (2d Cir.2001); In re Turner, 267 F.3d 225 (3d Cir.2001); United States v. Sanders, 247 F.3d 139 (4th Cir.2001); Talbott v. Indiana, 226 F.3d 866 (7th Cir.2000); United States v. Moss, 252 F.3d 993 (8th Cir.2001); Jones v. Smith, 231 F.3d 1227 (9th Cir.2000); Browning v. United States, 241 F.3d 1262 (10th Cir.2001); McCoy v. United States, 266 F.3d 1245 (11th Cir.2001).

        .Apprendi was characterized as a procedural rule by the Supreme Court. 530 U.S. at 475 and 497. Since announcing Teague, the Supreme Court has not given retroactive effect to any decisions announcing new constitutional rules of criminal procedure. United States v. Mandanici, 205 F.3d 519 (2d Cir.2000).


author: PER CURIAM.

text:
    Daniel Lee KNOD, Sr., a/k/a Kenneth McCain, Appellant, v. James CROSBY, Secretary Department of Corrections, et al., Appellees.
    No. 4D02-1175.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.
    Daniel Lee Knod, Sr., South Bay, pro se.

      Sheron Wells, Assistant General Counsel, Tallahassee, for appellee Department of Corrections.
   PER CURIAM.

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

STONE, FARMER and TAYLOR, JJ., concur.


text:
    Damion WHITTEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3607.
    District Court of Appeal of Florida, Second District.
    March 26, 2003.
   NORTHCUTT, Judge.

Damion Whitten challenges the circuit court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Whitten raised four possible grounds for relief based on ineffective assistance of counsel. We affirm the denial as to grounds two and three without discussion. We reverse and remand for further proceedings on grounds one and four.

In ground one, Whitten alleged that his trial counsel failed to convey a plea offer. This can constitute ineffective assistance of counsel. See Cottle v. State, 733 So.2d 963 (Fla.1999); Eristma v. State, 766 So.2d 1095 (Fla. 2d DCA 2000); Shingleton v. State, 759 So.2d 713 (Fla. 2d DCA 2000); White v. State, 731 So.2d 74 (Fla. 2d DCA 1999). In order to state a prima facie case of ineffective assistance of counsel based on failing to convey a plea offer, the defendant must allege: (1) that counsel failed to communicate a plea offer; (2) that the defendant would have accepted the plea offer but for the inadequate communication; and (3) that acceptance of the plea offer would have resulted in a lesser sentence. See Cottle, 733 So.2d at 967; Eristma, 766 So.2d at 1096; Lewis v. State, 751 So.2d 715, 717 (Fla. 5th DCA 2000); Garcia v. State, 736 So.2d 89, 89-90 (Fla. 4th DCA 1999).

In his motion, Whitten alleged that he did not become aware of a plea offer of thirty years until just before the jury was sworn, when his attorney mentioned it to the trial court. Whitten alleged that he would have accepted the plea offer if he had known about it. Thirty years in prison is a lesser sentence than the life sentence Whitten subsequently received. Whitten therefore stated a prima facie case under Cottle. When denying this claim the circuit court relied on the trial transcript passage in which Whitten’s counsel advised the trial court that the offer had been made. However, this exchange did not refute Whitten’s assertion that this was the first he had heard of the offer. Therefore, he is entitled to an evi-dentiary hearing on this ground. We reverse the order summarily denying relief on ground one of Whitten’s motion and remand for an evidentiary hearing on that ground. Should Whitten be successful at the hearing, we would suggest, as the Fifth District did in Lewis, a “good faith resumption of plea negotiations.” Lewis, 751 So.2d at 718.

In ground four, Whitten complained that he was improperly habitual-ized in violation of the sequential conviction requirement. The circuit court’s order states that the habitualization packet in the record refutes this ground. However, the court failed to attach this packet to its order. We therefore also reverse the order summarily denying relief on ground four of Whitten’s motion and remand for the court to attach the required documents.

Affirmed in part, reversed in part, and remanded for further proceedings.

SALCINES and STRINGER, JJ., concur.


author: KELLY, Judge.

text:
    Darrin C. DILLON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4092.
    District Court of Appeal of Florida, Second District.
    March 26, 2003.
   KELLY, Judge.

Darrin C. Dillon appeals from the summary denial of his motion to correct illegal sentence. Dillon claims that his sentence is illegal under this court’s decision in Tay lor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). Dillon’s claim is facially insufficient as he does not claim that his date of offense is within the window created by Taylor. We therefore affirm without prejudice to Dillon’s filing a facially sufficient 3.800(a) motion.

SALCINES and STRINGER, JJ., Concur.

      . Which held chapter 99-188, Laws of Florida, unconstitutional.


author: SILBERMAN, Judge.

text:
    Kenneth HAYDEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3468.
    District Court of Appeal of Florida, Second District.
    March 26, 2003.
   SILBERMAN, Judge.

Kenneth Hayden challenges the trial court’s order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm. In his motion, Hayden alleged that his plea was involuntary because defense counsel affirmatively misadvised him that his conviction could not be used in the future as a prior offense for sentencing purposes. In Stansel v. State, 825 So.2d 1007 (Fla. 2d DCA 2002), we held that this claim is not cognizable in a rule 3.850 motion. We certify the same question that we certified in Stansel.

Affirmed, question certified.

SALCINES and STRINGER, JJ., Concur.


author: STRINGER, Judge.

text:
    Charles E. POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3133.
    District Court of Appeal of Florida, Second District.
    March 26, 2003.
   STRINGER, Judge.

Charles E. Powell appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Powell argues that his sentence as a prison releasee reoffen-der is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), which held that chapter 99-188, Laws of Florida, was unconstitutional because it was enacted in violation of the single subject rule. Chapter 99-188 broadened the definition of a prison releasee reoffender to include a defendant who commits a fisted offense while serving a prison sentence or while on escape status. See Ch. 99-188, § 2, at 1041, Laws of Fla. Since Powell has not alleged that he was affected by the amendments to the prison releasee reoffender statute, this claim is facially insufficient. See Lindsey v. State, 839 So.2d 737 (Fla. 2d DCA 2003); McCarthy v. State, 835 So.2d 367 (Fla. 2d DCA 2003); Cubby v. State, 835 So.2d 338 (Fla. 2d DCA 2003). Accordingly, we affirm as to this issue.

Powell also claims that his sentence violates double jeopardy because the enhancement of his sentence contains two punishments for one criminal episode. However, he does not explain the enhancement or the two punishments to which he refers nor does he allege that his entitlement to relief can be determined from the face of the record. Therefore, this claim is facially insufficient. See McCune v. State, 831 So.2d 248 (Fla. 2d DCA 2002); see also Harris v. State, 801 So.2d 973 (Fla. 2d DCA 2001) (affirming the denial of a rule 3.800(a) claim where the defendant did not state a factual basis for the claim). As to this claim, we affirm without prejudice to any right Powell may have to file a facially sufficient rule 3.800(a) motion or a timely, facially sufficient motion under Florida Rule of Criminal Procedure 3.850.

Affirmed.

COVINGTON and KELLY, JJ„ concur.


author: COPE, J.

text:
    Stacii LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2276.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Bennett H. Brummer, Public Defender, and Andrew M. Teschner, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor and Roberta G. Mandel, Assistant Attorneys General, for appellee.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   COPE, J.

Stacii Lewis appeals his convictions for second degree felony murder, armed robbery, armed burglary, and possession of a firearm while engaged in a criminal offense. We affirm.

Defendant-appellant Lewis requests a new trial, claiming there was improper contact with the jury in answering a request for examination of an item of evidence. The trial court after an inquiry found no prejudice to the defense. There was no defense objection to the steps taken by the trial court, nor was there request for a mistrial. We therefore reject this claim on authority of Thomas v. State, 730 So.2d 667, 668 (Fla.1998).

Second, the defendant argues that his burglary conviction must be reversed on authority of Delgado v. State, 776 So.2d 233 (Fla.2000). We reject this argument.

The defendant and a . codefendant robbed a Burger King fast food restaurant during business hours. The witnesses testified that the defendant and codefendant jumped over the counter. The defendant ordered employees to open the cash registers at the counter and he took the money. The codefendant directed the store manager through the kitchen to the office at the back of the store, required him to open the office safe, and took the money and the manager’s watch.

The defendant argues on appeal that the Burger King was open to the public and that the record is devoid of evidence that would support a burglary conviction. The defendant did not move for judgment of acquittal on this point in the trial court but asks us to reach the issue as a matter of fundamental error. See Vance v. State, 472 So.2d 734, 735 (Fla.1985); Troedel v. State, 462 So.2d 392, 398 (Fla.1984); Stanford v. State, 833 So.2d 174, 176 (Fla. 3d DCA 2002). The defendant’s argument is incorrect.

It is true that “consensual entry is an affirmative defense to the charge of burglary. ...” Delgado, 776 So.2d at 240 (citation omitted). The defendant and code-fendant initially made entry into the Burger King restaurant through the regular customer doors during business hours. So long as the defendant and codefendant remained in the public area of the restaurant, no burglary had been committed.

The situation changed when the defendant and co-defendant jumped over the counter into an area of the restaurant which was not open to the public. When an individual proceeds from the public area of a business into a nonpublic area with the intent to commit a crime therein, a burglary is committed. Thomas v. State, 742 So.2d 326, 327 (Fla. 3d DCA 1999); Dakes v. State, 545 So.2d 939, 940 (Fla. 3d DCA 1989).

Thus, a burglary occurred when the defendant and codefendant jumped over the counter in order to take the money from the cash registers. Even if that were not so, the entry into the manager’s office in order to take the money in the safe amounted to a burglary.

With regard to jumping over the counter, the defendant hypothesizes that possibly in this particular Burger King, the area behind the counter was open to the public. Of course if that were true, the defendant and codefendant would have had no need to jump over the counter. That aside, the short answer is that under Delgado, the issue of consensual entry is (as already stated) “an affirmative defense to the charge of burglary and therefore the burden is on the defendant to establish that there was consent to enter.” Delgado, 776 So.2d at 240 (citation omitted; emphasis added). If the defendant wished to establish that the area behind the Burger King counter was open to the public, it was his burden to do so. The burglary conviction is amply supported by the evidence.

We strike Count VI, possession of a firearm while committing a criminal offense. The defendant was charged with committing this crime in conjunction with committing the offenses of armed burglary and armed robbery (Counts II-IV). Since Count VI is subsumed within Counts II-IV, we strike it. See § 775.021(4)(b)3., Fla. Stat. (1995).

Affirmed as modified.

      . The manager thereafter shot the codefend-ant, killing him.

      . The crime date was December 11, 1996.


author: WHATLEY, Judge.

text:
    David P. DUNKLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3018.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

David P. Dunkle appeals his judgments and sentences for grand theft and dealing in stolen property. The State concedes error. In Hall v. State, 826 So.2d 268, 271 (Fla.2002), the Florida Supreme Court held that section 812.025, Florida Statutes (2000), prohibits a trial court from “adjudicating a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct pursuant to a plea of nolo contendere.” Here, in case number CF00-07081A-XX, the trial court erred in adjudicating Dunkle guilty and sentencing him to four years in prison for both grand theft and dealing in stolen property.

Accordingly, we reverse Dunkle’s conviction for the grand theft, count three, in case number CF00-07081A-XX and remand for the trial court to resentence Dunkle on count four, dealing in stolen property. We affirm Dunkle’s judgments and sentences on counts one and two in case number CF00-07081A-XX and his convictions and sentences in case number CF00-07082A-XX.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, C.J., and COVINGTON, J., concur.


text:
    Daniel Alexander GARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1640.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.

      James Marion Moorman, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Daniel Alexander Garnett appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm and address one of the claims asserted in the motion.

Garnett argues that the trial court erred in summarily denying his claim that he was entitled to credit for 162 days spent in jail in Ohio. Garnett did not allege that any error in jail credit is renewable from the face of the record, and therefore, he did not present a facially sufficient rule 3.800(a) jail credit claim. Searight v. State, 795 So.2d 988 (Fla. 2d DCA 2001). We affirm the order denying Garnett’s motion without prejudice to any right Gar-nett may have to file a facially sufficient motion pursuant to rule 3.800 or a timely, facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850 addressing this issue. Id.

Affirmed.

ALTENBERND, C.J., and_ COVINGTON, J., Concur^ ~


author: COVINGTON, Judge.

text:
    Shawn Michael HUESCA, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5285.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

Shawn Michael Huesca, charged with one count of unlawful manufacture of marijuana, challenges his judgment and sentence. After the trial court denied his dispositive motion to suppress, Huesca pleaded no contest while reserving the right to appeal the denial. While we affirm Huesca’s conviction, we find merit in his arguments concerning the sentence rendered.

On appeal, Huesca raises three issues. First, he argues that the trial court erred in denying his motion to suppress. Huesca contends that the police officers unlawfully entered his home without a warrant. The trial court found that exigent circumstances permitted the search; we agree and affirm the trial court’s order denying the motion to suppress.

Huesca next submits that the trial court improperly directed the Department of Highway Safety and Motor Vehicles to revoke his license pursuant to section 322.055(1), Florida Statutes (2001). Section 322.055(1) provides, in part, that:

[Ujpon the conviction of a person 18 years of age or older for possession or sale of, trafficking in, or conspiracy to possess, sell, or traffic in a controlled substance, the court shall direct the department to revoke the driver’s license or driving privilege of the person. The period of such revocation shall be 2 years....

The unlawful manufacture of marijuana is not one of the enumerated offenses contained in the statute. Therefore, the trial court erred when it ordered the Department of Highway Safety and Motor Vehicles to revoke Huesca’s license. See Lee v. State, 673 So.2d 990 (Fla. 4th DCA 1996).

Finally, Huesca argues that the trial court improperly imposed discretionary costs pursuant to section 939.18(l)(b), Florida Statues (2001). This court previously has held that “the [trial] court is obligated to consider the defendant’s financial resources and other factors in making the decision to assess ... costs.” Edwards v. State, 814 So.2d 1197, 1198 (Fla. 2d DCA 2002) (citing Reyes v. State, 655 So.2d 111, 119 (Fla. 2d DCA 1995)). The trial court also is required to orally announce the imposition of discretionary costs. Id.

Here, the record reveals that the trial court failed to orally announce the imposition of costs. Additionally, the record fails to reflect that the trial court considered Huesca’s financial resources in its decision to assess costs. Therefore, we strike that condition of probation and remand for further proceedings. On remand, the trial court may assess discretionary costs if it orally announces the imposition of costs and if it properly considers Huesca’s financial resources.

Thus, we affirm Huesca’s judgment and strike the probation provision directing the Department of Highway Safety and Motor Vehicles to revoke his license for two years. We also strike the probation condition imposing discretionary costs and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

WHATLEY and STRINGER, JJ., Concur.

      . Although we are bound by the statute’s plain language, we take this opportunity to comment on the statute's effect in cases such as this one. Included within the statute are the offenses of possession and trafficking, yet the parallel offense of manufacturing is not included. Thus, Huesca's conviction for manufacturing, which is arguably more severe than possession, is not within the statute’s ambit. The legislature may want to reexamine the statute and address this disparity.


text:
    Darrin C. DILLON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-672.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.
   NORTHCUTT, Judge.

Darren C. Dillon appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He contends his sentence is illegal under this court’s decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), which held chapter 99-188, Laws of Florida, unconstitutional. Dillon’s claim is facially insufficient because he does not allege that the date of his offense was within the window established in Taylor. Therefore, we affirm without prejudice to Dillon’s ability to file a facially sufficient motion under rule 3.800(a).

DAVIS and CANADY, JJ., Concur.


author: DAVIS, Judge.

text:
    Gregory ACORD, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D00-2171, 2D00-2172, 2D00-2174, 2D00-2176 to 2D00-2179, 2D00-3273.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.

      James Marion Moorman, Public Defender, Bartow, and Anthony C. Musto, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ha T. Dao, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

In these consolidated cases, Gregory Acord challenges his convictions for grand theft and trespass and the resulting revocations of probation. Following a nonjury trial, Acord was found guilty of one count of grand theft and one count of trespass. Based on these new law violations, the trial court also revoked Acord’s probation in six other cases. At the time of sentencing on the several cases, Acord additionally entered a plea on a subsequent charge of grand theft. On appeal Acord argues that the trial court erroneously denied his motions for judgment of acquittal at trial on the grand theft and trespass. We affirm in part and reverse in part.

Testimony at the nonjury trial revealed that Robert Greife responded to an advertisement in the Tampa Tribune for a house available for rent. Acord answered the telephone at the number given in the advertisement, and Greife met with Acord and Jason Huffor at the house. Acord filled out, but did not sign, the leasing agreement; Huffor, who was named as the lessee, signed the agreement. After Greife and his family moved into the house, Michael and Sheila Silveira, the owners of the property, came by to ask Greife what he was doing in their house. They denied authorizing anyone to lease their home. However, following that incident, and after law enforcement became involved, Acord returned to the property on two separate occasions to make repairs and do landscaping, leaving a business card with Greife’s wife.

The Silveiras testified that they did not know Acord or Huffor, that they did not authorize either to lease their house, and that they never received any rental money collected by Acord or Huffor.

After the State rested, Acord moved for a judgment of acquittal. The trial court, however, found that the State had made a prima facie case against Acord for grand theft and trespass as a principal. “To be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.” Watkins v. State, 826 So.2d 471, 474 (Fla. 1st DCA 2002). Additionally, a motion for judgment of acquittal should be granted if the evidence is such that no view which the finder of fact could lawfully take favorable to the State can be sustained under the law. Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

Here, Acord’s actions all are consistent with Acord’s claim that he was only assisting Huffor in completing a legitimate real estate transaction and that he did so without knowledge that Huffor did not have the legal right to rent the property. Furthermore, these actions alone do not prove that Acord intended that the crime of grand theft be committed or that he assisted in the commission of the crime. The State did present Williams Rule evidence of another real estate transaction in which Acord was involved. Acord argues that this evidence was not similar enough to set the two incidents apart from other offenses and thus was inadmissible. We need not reach this question, however, because even if the evidence was admitted properly, it does not support the inference that Acord was aware that Huffor was not authorized to rent the instant property. In fact, the Williams Rule evidence suggested that in the previous incident Acord was leasing property he personally owned.

Accordingly, the State’s evidence was consistent with a legitimate real estate transaction and did not establish that Acord intended to rent property he was not authorized to rent. Because the State failed to meet its burden, the trial court should have granted Acord’s motion for judgment of acquittal following the State’s case.

Similarly, the evidence did not prove a prima facie case of trespass. To prove trespass under section 810.08(1), Florida Statutes (2001), the State needed to show that Acord, “without being authorized, licensed, or invited, willfully enter[ed] or remain[ed] in any structure.” Because the State did not prove that Acord was aware that Huffor did not have the legal right to lease the house, it did not meet its burden on the trespass charge. Therefore, both the grand theft and trespass convictions must be reversed.

Furthermore, because the evidence did not support prima facie showings of grand theft or trespass, it cannot be said that the greater weight of the evidence established willful and substantial violations of probation. See Hightower v. State, 529 So.2d 726, 727 (Fla. 2d DCA 1988). Accordingly, the revocations of probation also must be reversed.

Finally, Acord’s argument that he should be given the option of withdrawing his plea in the subsequent grand theft has not been preserved. He argues that because the plea was entered under the assumption that he would be serving sentences in the seven other cases, he should be allowed to withdraw this plea as being involuntarily entered. This issue is not properly before this court because the record does not reflect that Acord has filed a motion to withdraw his plea with the trial court. See Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

We reverse Acord’s convictions in case no. 96-5130 for grand theft and trespass and his revocations of probation in case nos. 94-8273, 94-1162, 94-12634, 94-15009, 94-16018, and 95-4601, but we affirm his conviction for grand theft in case no. 97-3879 without prejudice to his filing an appropriate motion with the trial court.

Affirmed in part, reversed in part.

NORTHCUTT, J., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . It is noted that Acord absconded for a period of four years after the nonjury trial. He then turned himself in and was sentenced on the several charges. It was during this time that the new grand theft charge occurred that resulted in the plea. However, the issues involved in this appeal are in no way influenced by his absconding from the custody of the court.

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

      . There is indication in the record that a supplemental affidavit of violation of probation was filed citing the absconding as a basis for violating Acord’s probation. However, there is nothing in the record to indicate that this accusation has been ruled on by the trial court.


text:
    Robert SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-875.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2003.
    Robert Smith, Lowell, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Quarterman v. State, 527 So.2d 1380 (Fla.1988).

THOMPSON, C.J., PALMER and ORFINGER, JJ., concur.


text:
    Luis PRATTS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-618.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2003.

      Luis Pratts, Daytona Beach, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Vining v. State, 827 So.2d 201 (Fla.2002).

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


text:
    Michael SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-429.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2003.
    Michael Sutton, Arcadia, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Nee § 782.04(2), Fla. Stat. (1993); Perry v. State, 705 So.2d 615 (Fla. 5th DCA 1998); Johnson v. State, 529 So.2d 1250 (Fla. 5th DCA 1988).

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


text:
    Michael B. PEW, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2617.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2003.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Pamela J. Roller, Assistant Attorney General, Daytona Beach; for Appellee.
   PER CURIAM.

AFFIRMED. See Czubak v. State, 570 So.2d 925 (Fla.1990); Lavin v. State, 754 So.2d 784 (Fla. 3d DCA 2000); Milstein v. Mutual Security Life Ins. Co., 705 So.2d 639 (Fla. 3d DCA 1998).

THOMPSON, CJ., SHARP, W., and ORFINGER, JJ., concur.


text:
    Richard MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1386.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2003.

      James B. Gibson, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard Martin, Bonifay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Ramsey, 475 So.2d 671 (Fla.1985).

THOMPSON, C.J., SHARP, W. and MONACO, JJ., concur.


text:
    Alex WHALEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-279.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2003.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Gudinas v. State, 693 So.2d 953 (Fla.1997); Robinson v. State, 393 So.2d 33 (Fla. 1st DCA 1981).

THOMPSON, C. J., SHARP, W„ and ORFINGER, JJ., concur.


text:
    Saul KRAUSS, Appellant, v. HEALTH FIRST, INC., Appellee.
    No. 5D01-3861.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2003.
    Robert M. Moletteire of Graham, Molet-teire, Tuttle & Torpy, P.A., Melbourne, for Appellant.
    Joseph E. Culmer of Johnson & Bau-ghan, P.A., Rockledge, for Appellee.
   PER CURIAM.

AFFIRMED. See Mullan v. Bishop of the Diocese of Orlando, 540 So.2d 174 (Fla. 5th DCA 1989) and Taylor v. Universal City Property Management, 779 So.2d 621, 622 (Fla. 5th DCA 2001).

THOMPSON, C.J., SAWAYA and ORFINGER, JJ., concur.


text:
    Salem LEFILS, Appellant, v. Jill T. DESMOND, Appellee.
    No. 5D02-2928.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2003.
    Salem Lefils, Indian Town, pro se.
    No Appearance for Appellee.
   PER CURIAM.

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

GRIFFIN, PALMER and TORPY, JJ., concur.


text:
    CLINICARE MEDICAL CENTER, P.A., Appellant, v. FIFTEEN BENNETT MIAMI BEACH, LLC., Appellee.
    No. 3D02-1465.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Thornton, Davis & Fein, P.A., Miami, and Lisa Berlow-Lehner, for appellant.
    Reimer & Rosenthal LLP and Alex P. Rosenthal (Weston), for appellee.
    Before JORGENSON, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Careers USA, Inc. v. Sanctuary of Boca, Inc., 705 So.2d 1362 (Fla.1998).


author: OWEN, WILLIAM C., JR., Senior Judge. FARMER, J.,

text:
    Sheila M. KING-COLEMAN, Appellant, v. Larry J. GEATHERS, Appellee.
    No. 4D02-3194.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.

      Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for appellant.
    R. Stephen Ottewell of Law Office of R. Stephen Ottewell, P.A., Boca Raton, for appellee.
   OWEN, WILLIAM C., JR., Senior Judge.

Appellant, the former wife, seeks review of a non-final order denying her motion to vacate a post-dissolution monetary judgment entered in favor of appellee, the former husband. We affirm.

Previously, appellee had obtained a substantially identical judgment against appellant but, on appeal, the judgment was reversed and the case remanded for a new trial. See King-Coleman v. Geathers, 795 So.2d 1092 (Fla. 4th DCA 2001). Upon remand, a non-jury trial was scheduled for March 28, 2002, with due notice to appellant’s attorney. The trial, which appellant did not attend, again resulted in a monetary judgment in favor of appellee. Appellant filed a motion to vacate the judgment pursuant to Rule 1.540, Florida Rules of Civil Procedure, on the grounds that her failure to appear at the trial was due to excusable neglect, inadvertence and surprise, in that she did not receive notice. Following an evidentiary hearing on the motion, at which appellant appeared and testified, the court denied her motion to vacate. That order is the subject of this non-final appeal.

The relevant facts are neither complex nor in material dispute. Appellant, a Lt. Colonel in the United States Air Force, was stationed in Europe in December 1999. After she had been served with her former husband’s petition, she retained Steven Cripps, Esq., to represent her in that matter. She remained in contact with Mr. Cripps until she returned to the United States in September 2000. For whatever reason, from that time on she never again contacted Mr. Cripps, either to ascertain the status of the pending appeal or to advise him of how or where he could contact her.

The mandate in the prior appeal was issued in October 2001, nearly thirteen months after appellant had returned to the States. At that time the only addresses for appellant which Mr. Cripps had were her previous military address while she was stationed in Europe and the Maryland residence of her former baby-sitter where she visited from time to time and occasionally stayed while on leave. At the court’s request, Mr. Cripps then obtained, through military channels, appellant’s mailing address at the Pentagon. Notices of the March 28, 2002 trial date were mailed to appellant at both the Pentagon and the address of the baby-sitter; however, she denied receiving either.

The trial court found that although it could not conclude whether appellant received actual notice of the trial date, a finding on that issue was not necessary to its decision on the motion. Appellant’s attorney had notice and if, as appellant testified, she did not receive actual notice, it was due entirely to her own fault, i.e., her failure, during the eighteen months between September 2000 and March 2002, to advise her attorney, Mr. Cripps, of how or where to contact her. Consequently, the court found that appellant had not shown that any lack of notice of the hearing was due to mistake, inadvertence, surprise or excusable neglect as contemplated by rule 1.540(b), Florida Rules of Civil Procedure.

The trial court did not abuse its discretion in denying appellant’s motion to vacate. This case does not involve lack of notice of trial. Appellant’s counsel had notice of the trial date and, as agent of the client, any notice by or to the attorney in the proceeding is notice to the client. See Fla. R. Jud. Admin. 2.060(m) (“In all matters concerning the prosecution or defense of any proceeding in the court, the attorney of record shall be the agent of the client, and any notice by or to the attorney or act by the attorney in the proceeding shall be accepted as the act of or notice to the client.”). Furthermore, the court found that Mr. Cripps diligently exerted every effort to convey that notice to appellant. The fact that he was unsuccessful was due entirely to appellant’s own fault and her inattention to her duty as a litigant to keep counsel informed of her current address. See W.K v. Dept. of Children & Families, 832 So.2d 229, 232 (Fla. 5th DCA 2002); M.E. v. Florida Dept. of Children & Fam. Servs., 728 So.2d 367 (Fla. 3d DCA 1999).

Accordingly, the order denying appellant’s motion to vacate is affirmed.

FARMER and KLEIN, JJ., concur.

FARMER, J.,

specially concurring.

I fully agree with the majority and write only to comment on the legal sufficiency of the grounds appellant presented in her motion for a new trial below.

Plaintiff was given notice of the trial date by formal notice to her counsel. Pointing to her absence from the trial, she sought a new trial essentially on the basis of mistake, inadvertence and excusable neglect. These grounds from rule 1.540(b) are, of course, identical to those for vacating a default. But as a basis for a new trial they are not, I think, adequate where the contention is based on a represented party’s claimed lack of personal notice. The failure of a party to attend trial might be sufficient for a new trial where the absence is caused by events or occurrences beyond one’s control, that is where the stars have placed unconquerable barriers in a party’s path to the courthouse: war, accident, injury, disease or natural catastrophe. But I do not think that mere inadvertence, mistake or excusable neglect should be enough to get a second trial on account of an absence from the first trial that does not result from such cataclysmic factors.

The trial date is the critical event in a civil case. Where the failure to attend trial is based on the absentee’s claimed ignorance of the specific date, the grounds for ordinary default relief are not satisfactory as a basis for a new trial. Something more should be required. Otherwise the parties would be able to manipulate their way around the import of this decisive event and achieve delays and continuances rightly denied them. Appellant’s rule 1.540(b) motion suggests no such reasons.

The motion implies that a default was actually entered when defendant failed to present herself at the scheduled trial. I must say, it would strike me curious if a plaintiff sought a default when a defendant fails to appear at trial after having been given, as here, legally sufficient notice of the trial date. Why a default when the claimant can have a judgment based on evidence? If I were the plaintiff in a case where the defendant failed to appear at trial, I would flee from any suggestion of a default as a lamb from a lion. Better by far to proceed with evidence.

One advantage of bypassing the default route is to avoid the unpredictability of appellate review of default relief. See County Nat'l Bank of N. Miami Beach v. Sheridan, 403 So.2d 502, 503 (Fla. 4th DCA 1981) (law on default relief in “hopeless confusion”); Westinghouse Credit Corp. v. Steven Lake Masonry Inc., 356 So.2d 1329, 1330 (Fla. 4th DCA 1978) (noting that the problem facing trial judges is a “veritable minefield, for it appears that no matter what they do, the appellate court reverses.”). Where the claimant produces his evidence and takes his chances with the judge rather than a default, he will not be saddled with our internal debate over the standard of review in default relief cases.

But here the court faced essentially a question of law as to defendant’s basis for a retrial under rule 1.540(b): must the party come to actually know the trial date where the court has given notice to her counsel who is unable to communicate that fact to her? The trial judge correctly answered in the negative because the record shows that her ignorance of the trial date was caused by a persistent failure to stay in communication with her lawyer. The U.S. Army may have sent her to Europe, but she did not show that the military had thereby cut her off from the instruments of communication across the seas: mail, telephone, internet, and, I suppose (even still), the telegraph. The real issue raised by her request for a new trial is thus not one of defaults — of mistake, inadvertence or excusable neglect, the grounds of rule 1.540(b) — but of agency and the liability of a principal. “The fault, dear Brutus, is not in our stars but in ourselves.... ”

I therefore fully concur in Judge Owen’s opinion.

      . At that point in time, the prior judgment had been entered and the appeal, filed on appellant's behalf by Mr. Cripps, was pending.

        . In fact, it was on the occasion of one such visit to the baby-sitter’s residence the latter part of April 2002 that the appellant received a copy of the April 9, 2002 Final Judgment which had been mailed to that address by the court.

      . I like my odds any day with an absent party — who objected to nothing, who offered no contrary evidence, who preserved no issue at trial — straining to upset a judgment on appeal without a transcript. To paraphrase what the first guy sings:
      "I make it affirmed; now this is no bum steer. It's from a handicapper that’s real sincere.”
      Frank Loesser, Fugue For Tinhorns, Guys and Dolls (1950).

      . See N. Shore Hosp. Inc. v. Barber, 143 So.2d 849 (Fla.1962) (showing of gross abuse of discretion necessary on appeal to justify reversal of trial court ruling on motion to vacate default); Sterling Drug Inc. v. Wright, 342 So.2d 503 (Fla.1977) (same). Although Barber says rather plainly that the standard for review in default relief is gross abuse of discretion, this court has misread the supreme court’s opinion. Compare George v. Radcliffe, 753 So.2d 573 (Fla. 4th DCA 2000) (holding that because policy favors trials over defaults greater showing is required to reverse order vacating defaults than order denying relief from default), and Lloyd’s Underwriters At London v. Ruby Inc., 801 So.2d 138 (Fla. 4th DCA 2001) (order denying motion to vacate default reviewed under abuse of discretion standard), with Barber; see also Emmer v. Brucato, 813 So.2d 264, 265 (Fla. 5th DCA 2002) (finding that gross abuse of discretion is standard for all decisions involving default relief); Merrill Lynch Mtg. Capital, Inc. v. Hallmark Indus., Inc., 627 So.2d 12 (Fla. 2d DCA 1993) (to reverse order on motion to vacate default gross abuse of discretion must be shown). In Ray v. Thomson-Kernaghan & Company, 761 So.2d 1197, 1199-1204 (Fla. 4th DCA 2000) (Farmer, J., concurring) (arguing that two-tiered standard for review of default relief used by panel in George v. Radcliffe conflicts with Barber), I explained why I think Barber is correctly read to prescribe gross abuse of discretion as the operative standard.
      In my opinion default relief under Barber is almost entirely committed to the conscience of trial judges, not to appellate courts. The supreme court has prescribed this most forbearing standard of review — an abuse of discretion that is not merely ordinary but partakes of something greater — because the reasons for relieving a party from a failure to follow civil procedures are ever shifting and circumstantial. Whether to relieve a default will be heavily affected by the vapors, airs and tones; attitudes, demeanor and credibility; of parties, witnesses and lawyers — all of which are simply inaccessible to a cloistered appellate judiciary. Thus the court’s requirement of gross abuse is, I think, its aphoristic way of prescribing that appellate courts be just about entirely deferential to default relief decisions by trial judges, upsetting them only rarely and with the greatest provocation.


text:
    STATE of Florida, Appellant, v. C.L, a child, Appellee.
    No. 4D02-1878.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. D.D. v. State, 817 So.2d 930 (Fla. 4th DCA 2002); D.C. v. State, 807 So.2d 198 (Fla. 4th DCA 2002); R.K. v. State, 778 So.2d 1098 (Fla. 4th DCA 2001).

GUNTHER, STONE, and FARMER, JJ., concur.


text:
    Vincent ALBURY and Wenzel Albury, Guardian of Vincent Albury, Jr., Appellants, v. BANKERS TRUST COMPANY OF CALIFORNIA, N.A., as Trustee for Vendee Mortgage Trust 1992-2, without recourse except as provided in a Loan Sales Agreement dated August 1, 1992, Appellee.
    No. 4D02-1256.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.

      Vincent Albury and Wenzel Albury, Mir-amar, pro se.
    Thomasina F. Moore of Butler & Hosch, P.A., Orlando, for appellee.
   PER CURIAM.

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

WARNER, HAZOURI and MAY, JJ„ concur.


author: STONE, J.

text:
    ARGUS PHOTONICS GROUP, INC., a Florida corporation, Appellant, v. Kevin DICKENSON and Michael Murray, Appellees.
    No. 4D01-4899.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.
    John F. Mariani and Nancy E. Guffey-Landers of Levy Kneen Mariam LLC, West Palm Beach, for appellant.

      Irwin R. Gilbert of Harris & Gilbert, LLP, West Palm Beach, for appellees.
   STONE, J.

Argus Photonics Group, Inc. challenges a declaratory judgment entered in favor of Kevin Dickenson and Michael Murray that determined their rights under an employment agreement. We affirm.

Dickenson and Murray have worked in the field of sealed C02 lasers for several years. In 1996, the parties entered into employment contracts which purported to prohibit Dickenson and Murray from seeking competitive employment anywhere in the continental United States following termination thereunder. The contracts specifically purported to prohibit them from working for another company engaged in the “production of sealed C02 [sic] lasers for sale in the medical, dental, industrial, or environmental markets.” A sealed C02 laser is a vessel, comparable to a fluorescent light bulb, with a mirror at each end. Electrodes on either side of the vessel distribute electricity into a column of gas that then ionizes and produces invisible laser light. Sealed C02 lasers have been produced by approximately thirty companies for over thirty years. Argus had patented a silicon electrode for use in a sealed C02 laser and its technology was disclosed and protected by patents.

During Dickenson and Murray’s employment with Argus, the Argus laser failed to achieve an adequate “pulse rate” and was, therefore, not commercially viable. Argus ceased conducting research, although two universities did possess the laser and continued testing it. Dickenson and Murray’s employment with Argus terminated in 2000.

Dickenson and Murray filed a second amended complaint against Argus seeking, among other things, a declaratory judgment voiding the covenants not-to-compete pursuant to section 542.335, Florida Statutes. After an evidentiary hearing, the trial court declared that the restrictive covenants contained in the employment agreement were unenforceable and that Dickenson and Murray were not prohibited from working for companies engaged in the research, production, development, or sale of sealed C02 lasers. The trial court held that a declaratory judgment was an appropriate remedy where Dickenson and Murray were in doubt as to whether they could engage in employment in the field of sealed C02 lasers. The court also held that it was proper to try issues of fact in the action where, in light of this court’s decision in State Farm Fire & Casualty v. Higgins, 788 So.2d 992 (Fla. 4th DCA 2001), a court can construe a contract in light of the facts at issue.

A declaratory judgment was appropriate relief in this case. Declaratory relief is recognized to be a valid means by which to determine the enforceability of restrictive covenants. See Jewett Orthopaedic Clinic, P.A. v. White, 629 So.2d 922 (Fla. 5th DCA 1993)(reversing declaratory judgment in favor of doctor and holding that covenant not to compete was enforceable); Dorminy v. Frank B. Hall & Co., 464 So.2d 154 (Fla. 5th DCA 1985)(affirm-ing declaratory judgment order enforcing a covenant not to compete).

Section 86.011, Florida Statutes, grants courts the power to render declaratory judgment on the existence of any right or “[o]f any fact upon which the existence or nonexistence of such ... right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future.” § 86.011(2), Fla. Stat. (2002). In order to bring a declaratory judgment action, there must be a bona fide dispute between the parties and an actual, present need for the decía-ration. Britamco Underwriters, Inc. v. Cent. Jersey Invs., Inc., 682 So.2d 138, 139 (Fla. 4th DCA 1994). The supreme court articulated the test as follows: “[t]here must be some doubt as to the proper interpretation of the written contract or as to the existence or non-existence of some right, status, immunity, power or privilege under the written contract, and that a construction thereof is necessary in order to determine the rights of a party having such doubt as to the meaning of the contract.” Columbia Cas. Co. v. Zimmerman, 62 So.2d 338 (Fla.1952). “Construction” has been defined by this court as including an explanation of the “legal effects and consequences of the instrument in question” in light of the facts at issue. Higgins, 788 So.2d at 999.

Here, declaratory relief was appropriate to determine the enforceability of the restrictive covenants in the employment agreement. There was doubt as to the proper interpretation of, and Dicken-son and Murray’s rights and obligations under, the restrictive covenants. A construction of the contract was necessary in order to determine those rights.

The existence of factual issues does not preclude entry of a declaratory judgment. The statute itself is clear that courts have the power to not only render declaratory judgments on the existence of rights, but also on “any fact upon which the existence or nonexistence of such ... right does or may depend.... ” § 86.011(2), Fla. Stat. (2002). This court has recognized that “the more recent trend in the case law is to accord broader scope to the declaratory judgment act in reaching fact issues.” Higgins, 788 So.2d at 999. In fact, Columbia Casualty proscribes reaching fact issues in a declaratory judgment action only where there is no question as to the contract’s construction. 62 So.2d at 340. Therefore, here, it was appropriate for the trial court to reach factual issues where it was done in conjunction with a construction of the contract.

As to all other issues raised, we also find no reversible error or abuse of discretion, and affirm.

WARNER and FARMER, JJ., concur.

FARMER, J., did not participate in oral argument, but has had the opportunity to review the entire proceedings.