text:
    Robert SPRINGER, Petitioner, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent.
    No. 5D02-3753.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.

      Dale Swope, Angela Rodante, Jason Mulholland and Jessica Ramsay, of Swope Law Group, P.A., Tampa, and Barbara Green, of Barbara Green, P.A., Coral Gables, for Petitioner.
    Kathy J. Maus, of Butler Pappas Weih-muller Katz Craig, LLP., Tallahassee, for Respondent.
    Philip M. Burlington, of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, Amicus Curiae, Academy of Florida Trial Lawyers.
   GRIFFIN, J.

Petitioner, Robert Springer [“Springer”], seeks a writ of certiorari directed to an order of the trial court ordering him to produce to United Services Automobile Association [“USAA”], Springer’s liability carrier, all communications between Springer and the attorney hired by USAA to defend him in a liability suit.

This issue arises in the course of a “bad faith” suit by Springer against USAA. The two parties take almost diametrically opposing views of the attorney/client privilege issue — either that the insurer is entitled to all communications between the insured and USAA’s retained counsel, or that USAA is entitled to none. USAA concedes that it would not be entitled to communications between Springer and his lawyer after a certain point in time — the date the relationship between Springer and USAA became adverse. That date they appear to define as the date it became clear that the liability suit could not be settled within policy limits. Based on our review of the case law and secondary authorities, however, it appears that even before that moment, there may be a variety of communications between the insured and his attorney that the insurer has no right to access. Communications between an insured and his counsel that pertain to the common interest held by the insured and the insurer — ie. the defense of the claim — are available to the insurer and this right of access would continue even if their interests become adverse. By the same token, communications concerning matters not pertaining to the defense or resolution of the liability ease may be privileged. Examples would be a discussion of coverage issues or how to proceed if the case could not be settled within policy limits.

In some cases, the line between communications concerning defense of the claim and other issues may be difficult to draw and some documents may contain both attorney/client communications that USAA is entitled to access and some that it is not entitled to access. In this case, because the trial court found that USAA should have access to all documents, no in camera review was conducted. The court should review the documents whose production remains in dispute and order disclosed to USAA only those which relate to the defense of the liability claim, not communications pertaining primarily to the insured’s own legal interests.

PETITION GRANTED; ORDER VACATED.

SAWAYA and ORFINGER, JJ., concur.


source: Caselaw Access Project

author: WEBSTER, J.

license: Public Domain

text:
    Vernon HADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-582.
    District Court of Appeal of Florida, First District.
    June 9, 2003.
    Nancy A. Daniels, Public Defender; Nancy L. Showalter, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant seeks review of his convictions, following a jury trial, for possession of marijuana and resisting an officer without violence. He argues that the trial court should have granted his motion for a judgment of acquittal as to the possession of marijuana charge, and that it should have given three requested jury instructions. Having carefully reviewed the record, we affirm without further discussion the trial court’s denial of the motion for judgment of acquittal as to the possession of marijuana charge. However, because we conclude that the trial court reversibly erred when it refused to give three jury instructions requested by appellant, we are constrained to reverse both convictions, and to remand them for a new trial.

The evidence established that, responding to a citizen complaint, police approached appellant. As they did, appellant began to walk away. Following a chase by police, appellant was seen just inside the doorway of a house belonging to someone other than appellant. He responded to an order that he come out, and was eventually handcuffed. One of the officers then went to the door of the house, looked in, and saw three baggies lying on the floor in the area where appellant had been standing. The three baggies were later determined to be “dime” ($10) baggies of marijuana. However, the officers never saw appellant in actual possession of the baggies, and were unable to say how or when the baggies got to where they were found.

As to the possession of marijuana charge, appellant requested two jury instructions. The first, which was taken verbatim from the Florida Standard Jury Instructions in Criminal Cases (at 291), read:

If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing, (2) knowledge that the thing was within the person’s presence, and (3) knowledge of the illicit nature of the thing.

Appellant was entitled to this instruction, and the trial court’s refusal to give it constituted reversible error. See, e.g., McMillon v. State, 813 So.2d 56 (Fla.2002); Scott v. State, 808 So.2d 166 (Fla.2002); Chicone v. State, 684 So.2d 736 (Fla.1996); Norman v. State, 826 So.2d 440 (Fla. 1st DCA 2002), review denied, 845 So.2d 892 (Fla. April, 2003). We reject for two reasons the state’s argument that appellant was not entitled to such an instruction because the evidence established actual possession: (1) the prosecutor argued to the jury that the evidence was sufficient to establish constructive possession and the trial court instructed the jury regarding both actual and constructive possession; and (2) as McMillon and Scott clearly hold, one is entitled to an instruction that knowledge of the illicit nature of the substance is an essential element of the offense of possession even in actual possession cases. We find the state’s harmless error argument equally disingenuous.

The second instruction requested by appellant as to the possession charge, which was likewise taken verbatim from the Florida Standard Jury Instructions in Criminal Cases (at 291), read:

Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control.

Appellant was also entitled to this instruction, and the trial court’s refusal to give it constituted reversible error. See, e.g., Hill v. State, 736 So.2d 133 (Fla. 1st DCA 1999); Moffatt v. State, 583 So.2d 779 (Fla. 1st DCA 1991). Because the prosecutor argued to the jury that the evidence was sufficient to establish constructive possession and the trial court instructed the jury regarding both actual and constructive possession, we reject both the state’s argument that no error occurred and its argument that any error was harmless.

Finally, appellant complains of the trial court’s refusal to give the following instruction as to the charge of resisting an officer without violence:

An individual has the right to resist an illegal arrest without violence. If you determine from the evidence that [appellant] was illegally arrested your verdict on the charge of resisting arrest should be not guilt[y].

In closing argument, appellant’s counsel argued to the jury that the police did not have reasonable suspicion of criminal activity to justify their chase, and ensuing stop and arrest, of appellant. Contrary to the state’s argument on appeal, there was some evidence to support the challenge to the legality of the officers’ actions. Accordingly, appellant was also entitled to this instruction, and the trial court’s refusal to give it constituted reversible error. See State v. Anderson, 639 So.2d 609 (Fla. 1994). We reject the state’s harmless error argument.

We reverse appellant’s convictions, and remand for a new trial.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

PADOVANO and POLSTON, JJ., concur.


author: PER CURIAM.

text:
    Elizabeth FEASTER, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, BOARD OF NURSING, Appellee.
    No. 1D02-1631.
    District Court of Appeal of Florida, First District.
    June 9, 2003.
    James N. Charles, Celebration, for Appellant.
    Charlie Crist, Attorney General, Charlie McCoy and Joseph B. Donnelly, Assistant Attorneys General; Thomas E. Warner, Solicitor General, and Louis F. Hubener, III, Deputy Solicitor General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Ass’n for Disabled Ams., Inc. v. Fla. Int’l Univ., 178 F.Supp.2d 1291 (S.D.Fla.2001); Dep’t of Highway Safety & Motor Vehicles v. Rendon, 832 So.2d 141 (Fla. 3d DCA 2002).

ERVIN, KAHN and PADOVANO, JJ., concur.


author: HAWKES J.

text:
    Eugenia M. BENEDICT, Appellant, v. PENSACOLA MOTOR SALES, INC, d/b/a/ Bob Tyler, etc, Appellee.
    No. 1D02-5252.
    District Court of Appeal of Florida, First District.
    June 9, 2003.

      Appellant, pro se.
    John B. Trawick, Shell, Fleming, Davis & Menge, Pensacola, for Appellee.
   HAWKES J.

We have for review an interlocutory order compelling arbitration. We have jurisdiction pursuant to Florida Rule of Appellate Procedure Rule 9.130(a)(3)(C)(iv). This court reviews de novo a trial court’s ruling on a motion to compel arbitration. See Florida Title Loans, Inc. v. Christie, 770 So.2d 750, 751 (Fla. 1st DCA 2000). We affirm.

I

Appellee, Bob Tyler Toyota, sold Appellant, Eugenia M. Benedict, what was represented to her as a new car, and she signed a Sales Agreement which included an arbitration clause. Appellant subsequently discovered the car she bought as “new” was, in fact, one which had been sold to another couple and returned by them due to mechanical problems. Appellant also learned that Appellee had the fuel injection system replaced by his service department prior to its sale to Appellant, all without notice. Upon Appellant’s request, the Department of Highway Safety and Motor Vehicles conducted an investigation which revealed the above-stated facts.

On April 25, 2002, Appellant filed a Complaint against Appellees. The Sales Agreement was attached and incorporated by reference through paragraph 37 of count seven, as part of the breach of contract claim. The arbitration provision itself was not specifically referenced. Twenty days after service of the Complaint, Appellee filed a Motion to Dismiss and an Answer, neither of which referenced the arbitration clause. On June 18, 2002, Appellee filed a Motion to Compel Arbitration pursuant to the contractual provisions of the Sales Agreement. On October 3, 2002, Appellee’s counsel filed an Affidavit wherein he attested he had not seen the Sales Agreement and its arbitration clause until he spoke to his client on June 17, 2002, and had the opportunity to review a faxed copy. A hearing was held on Appellee’s Motion to Compel Arbitration. After hearing arguments of counsel, the trial court granted the motion subject to the arbitrator’s consideration of Appellant’s entitlement to punitive damages.

On appeal, Appellant does not dispute the fact that the parties contractually agreed to arbitrate. Nor does she argue that the contested issues are outside the scope of their contractual agreement. Rather, Appellant argues that because she filed a Complaint and Appellee filed an Answer 28 days prior to filing a Motion to Compel Arbitration, the right to arbitrate is waived. In other words, the sequence of pleadings alone resulted in a waiver of arbitration. This argument is not supported by the law.

II

Arbitration clauses are to be given the “broadest possible interpretation to accomplish the salutory purpose of resolving controversies out of court.” Royal Caribbean Cruises, Ltd. v. Universal Employment Agency, 664 So.2d 1107, 1108 (Fla. 3d DCA 1996). When parties contractually agree to arbitrate, a court must give effect to that agreement, and all arbitrable issues must be resolved through arbitration unless arbitration has been waived. All questions regarding waiver of arbitration should be construed in favor of arbitration. See Zager Plumbing, Inc. v. JPI Nat’l Constr., Inc., 785 So.2d 660, 662 (Fla. 3d DCA 2001).

In furtherance of these principles and for the reasons discussed below, we hold that when a party to a contract containing an arbitration clause seeks to avoid arbitration by asserting implied waiver based on inconsistent acts, it must show prejudice. Our holding is based on three premises. First, the Florida Supreme Court’s ruling in Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999), provides that, when ruling on a motion to compel arbitration, the trial court’s analysis is the same under both the Federal Arbitration Act (federal Act) or the Florida Arbitration Code (Florida Code). The federal Act has consistently been interpreted to require a showing of prejudice before an implied waiver of arbitration can be found. Second, the district courts of appeal are divided as to whether, under the Florida Code, a showing of prejudice is required before an implied waiver can be found. We believe Seifert eliminates the disparity of analyses between application of the federal Act and the Florida Code, and this is our first opportunity to directly address this issue. Finally, Florida courts consistently require a showing of prejudice prior to compelling strict compliance with many procedural requirements. Thus, requiring prejudice here is consistent with the policy of avoiding hypertechnical application of the law in a manner that would allow substantive determinations to be made based on the sequence of pleadings rather than on the merits of the claims. See Simpson v. State, 418 So.2d 984, 986 (Fla.1982) (holding “[w]e should seek to avoid, not foster a hypertechnical application of the law.”).

Ill

The Florida Supreme Court has held that, under either the federal Act or the Florida Code there are “three elements for courts to consider in ruling on a motion to compel arbitration[ ]:(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert 750 So.2d at 636. Accordingly, under either federal or Florida law, when determining the existence of a valid written agreement or an arbitrable issue, the inquiry and result would be the same. Thus, an inquiry into waiver should also yield the same result, regardless of whether the dispute is to be arbitrated pursuant to the federal Act or the Florida Code.

Waiver is defined as “the intentional or voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right.” Hill v. Ray Carter Auto Sales, Inc., 745 So.2d 1136, 1138 (Fla. 1st DCA 1999). Active participation in a law suit may warrant an inference of the relinquishment of arbitration rights. See id. at 1137. This court has consistently recognized that waiver of a contractual right to arbitrate may occur as a result of the moving party’s active participation in a lawsuit. See e.g., Maryland Cas. Co. v. Dep’t of Gen. Serv., 489 So.2d 54 (Fla. 1st DCA 1986); Transamerica Ins. Co. v. Weed, 420 So.2d 370 (Fla. 1st DCA 1982). However, while prejudice to the litigant resisting arbitration has arguably been present in each of these cases, there has been no discussion as to whether, under Florida law, a showing of prejudice is required before waiver can be found. See Maryland Cas. Co., 489 So.2d at 55-56 (waiver where defendant filed answer, discovery requests and various motions without demand for arbitration); Weed, 420 So.2d at 371-372 (waiver where answer and affirmative defense did not refer to arbitration; and defendant engaged in discovery proceedings, tacitly agreed to set case for trial, and generally participated in suit for nearly four months before moving for arbitration). Thus, although not expressly stated, waiver exists where active participation in litigation results in prejudice to the party opposing a motion to compel arbitration.

In a case factually similar to the case at bar, this court held that the fifing of an answer two months prior to fifing the motion to compel arbitration did not constitute waiver. See Hill, 745 So.2d at 1138. In that case, the defendant’s counsel had not received a copy of the contract which contained the arbitration clause at the time the answer was prepared and served. However, based on a review of the case, it is hard to imagine how the party opposing arbitration could have been prejudiced simply because the answer was filed two months before the motion to compel arbitration, absent any other participation in the litigation.

The Third District has held the “well established rule of this district” is that a showing of prejudice is “indispensable” to a conclusion that arbitration was waived because the party seeking to compel arbitration took action inconsistent with arbitration. See Lane v. Sarfati, 691 So.2d 5 (Fla. 3d DCA 1.997) (certifying conflict with Donald & Co. Sec., Inc. v. Mid-Fla. Cmty Serv., 620 So.2d 192 (Fla. 2d DCA 1993)).

Conversely, the opinions of the remaining three districts, decided prior to Seifert, hold prejudice is not required before implied waiver can be found. Significantly, while stating prejudice is not required, those cases discuss how long the case proceeded, the number of pleadings and motions filed, and the extent of discovery, thus indicating active participation in fiti-gation resulted in prejudice. Interestingly, in Owens & Minor Med., Inc. v. Innovative Mktg & Distrib. Serv., 711 So.2d 176 (Fla. 4th DCA 1998), litigation had been actively ongoing for almost a year before the answer was filed. One month later, the motion to compel arbitration was filed. The Owens court found an implied waiver. The time between the filing of the answer and the filing of the motion to compel arbitration was greater in Hill than in Owens. The only logical reason justifying an implied waiver in Owens, but not in Hill, is prejudice to the party opposing arbitration resulting from active participation in litigation. Thus, it appears that a requirement of prejudice, had it existed, would have altered the result in very few, if any, of these cases. However, to the extent these cases permit implied waiver without showing prejudice, or require differing analyses depending on the applicable arbitration process, they appear to have been superseded by Seifert.

Subsequent to Seifert, at least one district has continued to hold prejudice is not required before an implied waiver can be found. See Morrell v. Wayne Frier Mfrd. Home Center, 834 So.2d 395 (Fla. 5th DCA 2003). In that case, the defendant filed an answer, affirmative defenses, and a motion to dismiss. Litigation proceeded to the point that a case management conference was held, and the case was set for mediation and trial. The plaintiffs engaged in discovery and submitted witness lists. The defendant did not assert the right to arbitrate until the eve of trial,,nearly one year after the complaint was served. The Fifth District held the right to arbitrate had been waived. Although the court stated prejudice was not required, in that case, as with the cases discussed above, due to active participation in the litigation, it was clearly present.

We find that requiring the trial court to make a factual inquiry as to the possible prejudice the party opposing arbitration would suffer is the only rational test to apply to determine the existence of an implied waiver if the courts are going to give arbitration clauses the “broadest possible interpretation to accomplish the salu-tory purpose of resolving controversies out of court.” Royal Caribbean Cruises, Ltd. 664 So.2d at 1108. Without requiring prejudice, any per se rule (either pleading-based or time-based) would have the potential of resulting in unnecessary ihjustice that application of inflexible procedural rules invariably cause. Accordingly, we align with the Third District and hold that the party opposing arbitration must demonstrate prejudice before implied waiver can be found based on inconsistent acts. Our conclusion is not only consistent with the ruling in Seifert, it supports the goal of avoiding a hypertechnical application of rules without concern for substantive effect. To the extent our holding conflicts with the Fifth District’s holding in Morrell, we certify conflict.

IV

Because the record fails to show that Appellant was prejudiced by the sequence of Appellee’s filings, the trial court’s order granting Appellee’s motion to compel arbitration is

AFFIRMED, and CONFLICT CERTIFIED.

DAVIS and LEWIS, JJ., concur.

      . Under federal law, prejudice has consistently been required, and the party arguing waiver of arbitration bears a heavy burden of proof. See Miami Dolphins, Ltd. v. Cowan, 601 So.2d 301, 302 (Fla. 3d DCA 1992) (citing Button v. Co-op Banking Group, 916 F.2d 1405, 1412 (9th Cir.1990); accord Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985)) (party seeking to prove waiver of a right to arbitrate must demonstrate: (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts).

      . See Derrick v. State, 581 So.2d 31 (Fla.1991) (holding when discovery violation alleged, trial court must conduct hearing to inquire into circumstances of the violation and its possible prejudice to defendant); Hoffman v. State, 397 So.2d 288 (Fla.1981) (allowing amendment of date alleged in State's statement of particulars if no showing of prejudice to defendant); Atl. Coast Line R.R. Co. v. Edenfield, 45 So.2d 204 (Fla. 1950) (noting pleadings may be amended before, during and after trial; test is whether amendment takes opposing party by surprise); Buday v. Ayer, 754 So.2d 771 (Fla. 2d DCA 2000)(noting party entitled to amend pleading to conform to evidence if party can establish issue was tried by express or implied consent of opposing party and admission of the evidence will not prejudice opposing party); Anglo Am. Auto Auctions, Inc. v. Tuminello, 732 So.2d 1218 (Fla. 5th DCA 1999) (holding under rule governing amendments to pleadings to conform with evidence, test of prejudice is primary consideration in determining whether motion for leave to amend should be granted); Rosser v. State, 658 So.2d 175 (Fla. 3d DCA 1995) (holding State may substantively amend charging document during trial, even over defendant’s objection unless there is a showing of prejudice to substantial rights of defendant); Tutwiler Cadillac, Inc. v. Brockett, 551 So.2d 1270 (Fla. 1st DCA 1989) (noting Florida courts have policy of liberality toward vacating defaults and allowing trial on merits; default set aside based on excusable neglect, errors in original complaint, and lack of prejudice resulting from late filed answer); Trans World Marine Corp. v. Threlkeld, 201 So.2d 614 (Fla. 3d DCA 1967) (holding defendant permitted to amend answer to include affirmative defense after jury verdict, because evidence of defense presented at trial).

      . Owens & Minor Med., Inc. v. Innovative Mktg & Distrib. Serv., 711 So.2d 176 (Fla. 4th DCA 1998) (in February, 1996, plaintiff filed suit and obtained a prejudgment writ of garnishment; in March, 1996, plaintiff served a request for admissions and filed a second amended complaint; in July, 1996, plaintiff served a request for admissions, a request for production, and two sets of interrogatories; in January, 1997, after its motion to dismiss was denied, defendant filed its answer, affirmative defenses, counterclaim and third party complaint; in February, 1997, plaintiff filed a motion to stay and compel arbitration); Beverly Hills Dev. Corp. v. George Wimpey of Fla., Inc., 661 So.2d 969 (Fla. 5th DCA 1995) (plaintiff sought law suit without first or simultaneously seeking arbitration; defendant filed a motion to dismiss the complaint and compel arbitration, which plaintiff opposed; approximately 1 month later, plaintiff reversed its position and for the first time sought arbitration by filing a motion to compel; 3 months later, defendant reversed its position and withdrew its motion to compel arbitration, and filed an amended motion to dismiss based solely on a claim of failure to state a cause of action; court found both parties waived their right to arbitrate); Donald & Co. Sec., Inc. v. Mid-Fla. Cmty Serv., 620 So.2d 192 (Fla. 2d DCA 1993) (plaintiff filed pleadings and litigated case for 13 months before invoking right to arbitrate and, in interim, defended against vigorous defenses and counterclaims, one of which was ruled on by the trial court and affirmed on appeal; plaintiff also conducted several depositions and was itself deposed).


author: BROWNING, J.

text:
    Eddie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3089.
    District Court of Appeal of Florida, First District.
    June 9, 2003.
    Nancy A. Daniels, Public Defender and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

In this direct appeal, Appellant challenges the denial of his motion for judgment of acquittal on count III, distribution of pornographic material to a child. The only evidence presented by the State to show that the material was obscene was the victim’s testimony. After reviewing that testimony, we hold that the evidence was insufficient to make a prima facie showing that the evidence was obscene as defined by section 847.001, Florida Statutes. Accordingly, we conclude that the trial court erred in denying Appellant’s motion for judgment of acquittal on that count. See Foburg v. State, 807 So.2d 774 (Fla. 2d DCA 2002). Therefore, we reverse Appellant’s conviction and sentence for distribution of pornographic material to a child, and leave Appellant’s other convictions and sentences undisturbed.

AFFIRMED in part, REVERSED in part, and remanded with directions that the trial court discharge Appellant as to count III.

KAHN and Van NORTWICK, JJ., concur.


text:
    Eric K. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1680.
    District Court of Appeal of Florida, First District.
    June 9, 2003.

      Nancy A. Daniels, Public Defender and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Kenneth D. Pratt, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Eric K. Brooks appeals the sentence imposed following the revocation of his probation, arguing that the trial court erred in not awarding credit for a term of imprisonment previously served, pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993). The offense for which appellant was given a prison sentence and the offense for which appellant was sentenced to probation were scored on the same scoresheet. Accordingly, appellant was entitled to credit for the prior period of imprisonment. Tripp v. State, Hodgdon v. State, 789 So.2d 958 (Fla.2001); State v. Witherspoon, 810 So.2d 871 (Fla.2002). Such an award of credit is required even though the credit for time served “may have the effect of erasing the subsequent sentence for the violation of probation_” Larimore v. State, 823 So.2d 287 (Fla. 1st DCA 2002).

Accordingly, appellant’s sentence is VACATED and the cause is REMANDED for resentencing in manner consistent with this opinion.

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


text:
    Rawle SEUPERSAD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-4900.
    District Court of Appeal of Florida, First District.
    June 9, 2003.
    Rawle Seupersad, pro se, petitioner.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Petitioner seeks a belated appeal of the judgment and sentence rendered on May 29, 2001, in Escambia County Circuit Court case number 00-2933-CFA-01. According to petitioner, he timely requested that counsel file a notice of appeal, but counsel failed to do so. In response to an order to show cause, the state disputed petitioner’s entitlement to a belated appeal. Jurisdiction was relinquished to the circuit court with instructions to appoint a special master to conduct an evidentiary hearing and issue a written order setting forth findings of fact and conclusions of law regarding petitioner’s entitlement to a belated appeal. See Schubert v. State, 787 So.2d 1102 (Fla. 1st DCA 1998).

After an evidentiary hearing, the special master issued an order finding that petitioner timely wrote his counsel and requested that an appeal be filed. Accordingly, we grant petitioner’s request for a belated appeal. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

BARFIELD, DAVIS and PADOVANO, JJ., concur.


text:
    Christifa A. KNOWLES a/k/a Christopher Knowles, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D02-2941.
    District Court of Appeal of Florida, First District.
    June 9, 2003.
    Christifa Knowles, pro se, petitioner.
    William L. Camper, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for respondent.
   PER CURIAM.

Christifa Knowles filed a petition for habeas corpus in the Circuit Court of Leon County challenging an order of the Florida Parole Commission revoking his conditional release supervision. The circuit court treated the petition as a petition for other extraordinary relief, ordered Knowles to pay a filing fee and once the fee was paid, denied the petition. Knowles then filed a petition for writ of certiorari in this court. We grant the petition.

The filing of a petition for writ of habeas corpus is the proper method of challenging the revocation of an inmate’s conditional release supervision. See Heard v. Florida Parole Comm’n 811 So.2d 808 (Fla. 1st DCA 2002); Gillard v. Florida Parole Comm’n, 784 So.2d 1214 (Fla. 1st DCA 2001). An inmate’s petition for habeas corpus must be filed in the circuit court of the county in which the inmate is incarcerated. See Heard; Gil-lard. Moreover, a filing fee is not required in a habeas proceeding. See Heard.

In this case, Knowles was incarcerated in Charlotte County at the time he filed his petition for writ of habeas corpus. Thus, the circuit court for Leon County was without jurisdiction to rule on Knowles’ petition and should have transferred the petition to the circuit court for Charlotte County. The circuit court also departed from the essential requirements of the law when it ordered Knowles to pay a filing fee. We, therefore, quash the circuit court’s order and remand this case to the circuit court with directions to refund the filing fee paid by Knowles in accordance with the case management order, and to transfer Knowles’ petition to the circuit court of the Twentieth Judicial Circuit in and for Charlotte County, Florida.

VAN NORTWICK, PADOVANO and LEWIS, JJ, concur.


text:
    Dale William WEEKS, Appellant, v. Curtis A. GOLDEN, Appellee.
    No. 1D02-1283.
    District Court of Appeal of Florida, First District.
    June 11, 2003.

      Appellant pro se.
    Charlie Crist, Attorney General; Mark S. Dunn, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

This is the third time this matter has been before us, and will mark the third time we reverse. See Weeks v. Golden, 764 So.2d 633 (Fla. 1st DCA 2000) (Weeks I); Weeks v. Golden, 798 So.2d 848 (Fla. 1st DCA 2001) (Weeks II).

In Weeks I, appellant sought review of an order denying his petition for a writ of mandamus to compel the State Attorney for the First Judicial Circuit to copy and send to him certain records which he claimed were public, and to award costs associated with the filing of the petition. 764 So.2d at 634. We reversed, and remanded with directions that the trial court determine whether the State Attorney had any legally acceptable excuse for failing to respond to appellant’s public records request until after appellant had filed his petition seeking to compel compliance, and to award costs of enforcement if it concluded that the State Attorney did not. Id. at 635.

On remand, the trial court denied a portion of appellant’s petition, and also denied appellant’s request for the costs of enforcement. We again reversed, making clear that appellant was entitled to his reasonable costs of enforcement, pursuant to section 119.12(1), Florida Statutes (1997) (a part of the Florida Public Records Act). 798 So.2d at 850.

On remand from our second reversal, appellant sought costs totaling $448.95. That figure included costs associated with postage, envelopes and copying, as well as the filing and service of process fees. The trial court awarded only $140.50, representing the costs associated with filing and service. The trial court based its decision on the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions and two cases interpreting those Guidelines. See State, Dep’t of Transp. v. Skidmore, 720 So.2d 1125, 1130 (Fla. 4th DCA 1998) (“postage, long distance calls, fax transmissions, and delivery service are office expenses that should not have been taxed as costs”); Mitchell v. Osceola Farms Co., 574 So.2d 1162, 1163 (Fla. 4th DCA 1991) (“postage, long distance calls, travel expenses and courier service appear to be office expenses and should not have been taxed as costs”). We conclude that, given the facts of this case, this general rule does not apply.

Appellant is an inmate of the Florida correctional system. He prosecuted this action pro se, without assistance of counsel. As we have previously held, pursuant to section 119.12(1), Florida Statutes (1997), appellant is entitled to recover from the Office of the State Attorney “the reasonable costs of enforcement,” which would have included an attorney’s fee had he been represented by counsel.

The Uniform Guidelines contemplate awards of costs in cases where litigants are represented by counsel. In such a situation, it makes perfect sense that taxable costs should not include normal office overhead expenses, such as postage, envelopes and copying. Such a result makes much less sense, however, in a situation such as this, where the successful litigant is incarcerated and has proceeded pro se. In such a situation, the cost of such items as postage, envelopes and copying is not a normal incident of the litigant’s business overhead. It is, instead, more likely that such costs will be incurred specifically for purposes of the litigation; and that they would not otherwise have been incurred.

Our research has failed to discover any Florida case on point. However, appellant has directed our attention to a decision of the United States Court of Appeals for the Second Circuit, which we find persuasive. In Kuzma v. Internal Revenue Service, 821 F.2d 930 (2d Cir.1987), a pro se litigant successfully prosecuted an action, pursuant to the Freedom of Information Act (5 U.S.C. § 552), against the IRS seeking production of tax documents. Id. at 930. That Act provided that “[t]he court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E). Concluding that the only costs recoverable were those related to filing and service, the trial court awarded those, but denied other items, including postage, envelopes and copying. 821 F.2d at 930. According to the trial court, the latter costs were not recoverable pursuant to the general statutory provision relating to costs. Id. See 28 U.S.C. § 1920. On appeal, the Second Circuit reversed the denial of costs for postage, envelopes, copying, exhibits, typing, transportation and parking. 821 F.2d at 933-34. The court explained that a narrow interpretation of the costs provision of the Freedom of Information Act would frustrate the “congressional intent to alleviate the financial burdens suffered by citizens seeking information from the government” and to “encourage activity of ‘private attorneys general’ in furtherance of a ‘national policy of disclosure of government information.’ ” Id. at 933 (citation omitted).

As in Kuzma, interpreting narrowly that portion of section 119.12(1) which mandates an award of “the reasonable costs of enforcement” would frustrate the clear legislative intent to alleviate the financial burdens incurred by citizens who seek to. enforce their right of access to public records in Florida, as well as the stated “policy ... that all state, county, and municipal records shall be open for personal inspection by any person.” § 119.01(1), Fla. Stat. (1997). See also New York Times Co. v. PHH Mental Health Servs., Inc., 616 So.2d 27, 29 (Fla.1993) (section 119.12(1) is designed to encourage public agencies to comply voluntarily with proper public records requests, and to encourage citizens improperly denied access to pursue their rights beyond an initial refusal by a recalcitrant agency). Moreover, a narrow interpretation would be at odds with our prior decision that “[sjection 119.12 ... should ... be liberally construed so as to best enforce the promotion of access to public records.” Downs v. Austin, 559 So.2d 246, 247 (Fla. 1st DCA), review denied, 574 So.2d 140 (Fla.1990). Accordingly, we hold that those “reasonable costs of enforcement” recoverable pursuant to section 119.12(1) are not necessarily limited to costs recoverable pursuant to the Uniform Guidelines. Rather, such costs are limited only by the requirement that they be reasonably incurred in the course of the litigation, given the peculiar facts of each case.

Here, it seems to us that some postage, envelope and copying costs would be reasonable, in light of the fact that appellant is incarcerated, and prosecuted this action pro se. Because the trial court concluded that appellant was not entitled to such costs as a matter of law, we reverse. On remand, the trial court is directed to afford appellant an opportunity to provide evidentiary support for the reasonableness of the expenses sought, either by affidavit or evidentiary hearing, and then to determine whether those expenses were reasonably incurred in the litigation.

REVERSED and REMANDED, with directions.

PADOVANO and POLSTON, JJ., concur.


author: DAVIS, Judge.

text:
    In the Interest of D.A., J.H., and M.H., children, E.E.A., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    Nos. 2D02-735, 2D02-2266.
    District Court of Appeal of Florida, Second District.
    June 11, 2003.

      Geraldyne H. Carlton of Carlton & Carlton, P.A., Lakeland, for Appellant.
    Douglas Sherman of Department of Children and Family Services, Bartow, for Appellee.

      . Judge Covington has been substituted for Judge Blue, who was on the original E.E.A. panel.

   DAVIS, Judge.

In this consolidated appeal, E.E.A., the natural mother, challenges two final judgments that terminated her parental rights to J.H.,.M.H., and D.A. E.E.A. is a thirty-nine-year-old woman who is developmentally delayed and suffers from numerous other disorders including a long-standing, chronic substance abuse problem. She was determined to be incompetent in these proceedings, and an attorney ad litem was appointed on her behalf. For the reasons explained below, we reverse.

In 1995, prior to the birth of D.A. and prior to the family’s involvement with the Department of Children and Family Services (the Department), E.E.A. and her two children went to live with E.E.A.’s mother (the grandmother). It does not appear that E.E.A. remained there long, but the children stayed. In 1998, after the birth of D.A., the Department became involved with E.E.A. regarding the care of the newborn child, whom the Department ultimately placed, along with his two siblings, with the grandmother. E.E.A. consented to an adjudication of dependency as to all three children. The children continued to live with the grandmother under the supervision of the Department until 2000, when the Department sent all three children to South Carolina to live with the father of the two older children. The reports filed with the court between 1998 and the 2000 move to South Carolina all concluded that the placement with the grandmother was appropriate, although it was not without problems. Because the grandmother had essentially raised the children, she was credited with the children’s generally good behavior, manners, and demeanor.

When, for a variety of reasons, the South Carolina placement did not work out, all three children were brought back to Florida and placed in foster care. It was upon the children’s return to Florida that the Department commenced the instant termination proceedings. During the nine-month period between the time of the children’s return (April 2001) and the date of the trial (January 14, 2002), the Department moved, the children numerous times, and the children were placed together only occasionally.

To grant a petition to terminate parental rights, the trial court must find that the Department proved the allegations supporting the termination of parental rights by clear and convincing evidence. In re C.W.W., 788 So.2d 1020 (Fla. 2d DCA 2001). Additionally, the Department must establish that termination of parental rights is the least restrictive means of protecting the child from harm. Id.

In its first amended petition for termination of parental rights, the Department alleged grounds for termination pursuant to subsections (b), (c), (e), and (g) of section 39.806(1), Florida Statutes (2001). Although the multiple grounds were raised by the Department, the trial court found that the Department failed to prove the allegations made under subsections (b), (e), and (g). However, the court found that the Department had proved its case as to subsection (c), which allows termination of parental rights “[w]hen the parent ... engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent ... in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services.”

After reviewing the testimony before the trial court, we conclude that the trial court erred in finding that the Department established by clear and convincing evidence that the continuation of the parent-child relationship would threaten the well-being of these children. There is no record evidence suggesting that the children were under any threat of harm due to the mother’s continued parental relationship with the children. In fact, the record evidence is to the contrary. The testimony included observations that the children loved their mother and that the visitations went well. The only apparent threat of harm these children have suffered results from the instability of their placement, which, in turn, is the direct result of the Department’s placement of the children with several foster care providers rather than working with the grandmother to return the children to her care.

From February 1998, when these children were placed under supervision of the Department while residing with the grandmother, until the children were sent to South Carolina in 2000, there was no indication that the mother in any way posed a threat to the well-being of the children even though she maintained the parent-child relationship. All the testimony indicated that the children were in a stable, caring placement provided by the grandmother. They had contact from time to time with their mother but were never in danger of harm by her. Although the trial court was correct to find that the Department established that the mother would not be able to be the custodial parent of these children, that is not the ground for termination that the court found the Department had shown pursuant to section 39.806(l)(c).

Likewise, as in C.W.W., the Department has failed to establish that termination was the least restrictive alternative. The testimony indicates that the Department did nothing to pursue the possibility of the grandmother once again caring for the children. Although the trial court found that she had the “burden of caring” for the mother, there is nothing in the record to support this finding. As to whether the grandmother had stable housing, the record indicates that the case worker did not seek to determine her housing arrangements because the Department was not considering her for possible placement. The trial court also exercised its “hindsight” and questioned whether the prior placement of the children with the grandmother was “a good shelter placement.” However, the Department’s regular reports to the court stated that the placement was. “appropriate,” and the Department never petitioned to change that placement. The issues the case worker raised at the termination trial regarding the earlier placement were speculative and apparently had not been important enough at the time of the placement to merit further investigation or follow through. Based on the facts of this ease, we conclude that there was an option available that was less restrictive than termination.

Since the Department failed to prove the allegations for termination by clear and convincing evidence and failed to establish that termination was the least restrictive alternative, the orders granting the termination of parental rights must be reversed.

Reversed and remanded for further proceedings consistent with this opinion.

COVINGTON and KELLY, JJ., Concur.


text:
    Terrance McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3917.
    District Court of Appeal of Florida, First District.
    June 11, 2003.
    Nancy Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Sherri T. RoUinson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges a manslaughter conviction, arguing that the court erred in the manslaughter instruction by failing to explain that this offense does not encompass justifiable or excusable homicide. As indicated in Rojas v. State, 552 So.2d 914 (Fla.1989), manslaughter is a residual offense which requires such an explanation for a proper definition of the crime. See also, e.g., State v. Lucas, 645 So.2d 425 (Fla.1994). Furthermore, the failure to refer to justifiable and excusable homicide in connection with the manslaughter instruction is fundamental error. E.g. Lucas; Rojas. The appealed order is therefore reversed and the case is remanded.

ALLEN, C.J., WEBSTER and BROWNING, JJ., concur.


text:
    Donald SHAW, Appellant/Cross-Appellee, v. FLORIDA STEEL CORP. and Specialty Risk Services, Inc., Appellees/Cross-Appellants.
    No. 1D02-533.
    District Court of Appeal of Florida, First District.
    June 11, 2003.
    Marshall D. Davis of Marshall D. Davis, P.A., Jacksonville, for Appellant/Cross-Ap-pellee.
    Richard W. Withers of Sharp & Gay, P.A., Jacksonville, for Appellees/Cross-Ap-pellants.
   PER CURIAM.

In this workers’ compensation case, claimant complains of the denial of permanent total disability benefits, the impairment rating awarded and the denial of penalties on indemnity benefits awarded; and the employer and carrier cross-appeal complaining of the refusal to permit an amendment to their witness and exhibit lists. We affirm without discussion as to all issues raised, save one. We reverse the denial of penalties on the indemnity benefits awarded because the employer and carrier neither paid the benefits within seven days of when they became due, as required by section 440.20(6), Florida Statutes (Supp.1994), nor exercised the pay- and-investigate option provided by section 440.20(4); and because the employer and carrier failed to offer any evidence to suggest that they were unaware, as of the date on which claimant alleged the benefits were due, of facts supporting the obligation to pay those benefits. See, e.g., Eastern Indus., Inc. v. Burnham, 750 So.2d 748 (Fla. 1st DCA 2000); Bruno’s, Inc./Food World v. Bruner, 805 So.2d 1090 (Fla. 1st DCA 2002).

AFFIRMED IN PART and REVERSED IN PART.

WEBSTER, PADOVANO and POLSTON, JJ., concur.


author: SILBERMAN, Judge.

text:
    Darryl KAYMORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-919.
    District Court of Appeal of Florida, Second District.
    June 11, 2003.
   SILBERMAN, Judge.

Darryl Kaymore argues that his habitual violent felony offender sentence with a ten-year minimum mandatory is illegal under Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), which held chapter 99-188, Laws of Florida, unconstitutional. However, his claim is facially insufficient because he has failed to allege the date of his offenses or how he was affected by the amendments to the violent career criminal statute contained in chapter 99-188. See Pruitte v. State, 845 So.2d 314 (Fla. 2d DCA 2003); Glover v. State, 845 So.2d 258(Fla. 2d DCA 2003). Accordingly, we affirm without prejudice to any right Kay-more may have to file a facially sufficient rule 3.800(a) motion raising these claims.

Affirmed.

DAVIS and COVINGTON, JJ., Concur.


author: SHAHOOD, J.

text:
    Anthony CRITSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1671.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, Anthony Critsley, was charged by amended affidavit with violation of probation. The amended affidavit charged appellant with violating his probation by: (1) failing to report and submit a written monthly report; (2) appellant changed his approved place of residence without prior knowledge or consent of his probation officer; (3) appellant left the county of residence without prior knowledge or consent of his probation officer; (4) appellant left the county of his residence without prior knowledge or consent of his probation officer; (5) appellant, in Orange County Florida, committed the offense of DUI, or lesser included offense as evidenced by his arrest by FHP; and (6) that appellant failed to follow all instructions given to him by his officer.

The trial court found that appellant willfully violated his probation “in every way that has been charged here.” In revoking appellant’s probation, the court found six violations: (1) that appellant changed his residence without the consent or prior knowledge of his probation officer; (2) appellant left the county of his residence without the prior knowledge or consent of his probation officer; (3) appellant left the county of his residence without the prior knowledge or consent of his probation officer; (4) appellant left the county of his residence without prior knowledge or consent of his probation officer; (5) appellant, committed the offense of DUI in Orange County Florida; and (6) that appellant has failed to follow all instructions given to him by his probation officer.

It is undisputed that hearsay evidence, while admissible in probation revocation proceedings, cannot constitute the sole basis for a finding of violation of probation. See Sagner v. State, 776 So.2d 1088 (Fla. 4th DCA 2001); Render v. State, 755 So.2d 653 (Fla. 4th DCA 1998). However, a revocation can be grounded on hearsay evidence combined with evidence which is admissible as an exception to the hearsay rule. See Render, 755 So.2d at 653.

In this case, the evidence presented at the revocation hearing consisted of uncorroborated hearsay testimony and/or evidence that was insufficient to support the allegations contained in the affidavit. It is also quite evident from the record that the court considered evidence which was unrelated to the conditions appellant allegedly violated. An order of revocation may not be based upon a violation not charged in the affidavit. See id. at 654. Lastly, appellant’s violation for failure to follow all instructions given to him by his probation officer was deficient. Although an affidavit is not required to comply with the same specifications as an information, it must allege the basic facts concerning the alleged violation such as the nature, time and place of occurrence. See Costanz v. State, 740 So.2d 71, 72 (Fla. 4th DCA 1999). None of these factors were contained in the amended affidavit regarding this alleged violation.

Based on the foregoing, we are compelled to reverse the trial court’s Order of Revocation of Probation and remand with directions that appellant’s probation be reinstated.

REVERSED AND REMANDED.

TAYLOR and MAY, JJ., concur.

      . The dates of appellant’s violations of probation contained in both the affidavit charging the violations and the order revoking appellant's probation have been omitted due to discrepancies as to the dates in which these violations occurred.


author: FARMER, J.

text:
    Sidney Alan ZUCKERMAN, Appellant, v. Stacey ROBINSON, Appellee.
    No. 4D02-1346.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    H. Randal Brennan of Hendrix & Brennan, Vero Beach, for appellant.
    Diego C. Asencio of Diego C. Asencio, P.A., North Palm Beach, for appellee.
   FARMER, J.

We are asked to reverse a judgment for punitive damages on the grounds that the amount awarded exceeds the evidence as to defendant’s financial resources. The record does in fact show that the sum well exceeds the ability to pay proved at trial. The issue is whether the basis for the award — defendant injured plaintiff as a result of driving while intoxicated — authorizes such financial castigation. With substantial misgivings, we hold it does not and reverse for further proceedings.

This case arose from a hit-and-run, rear-end collision. The record shows that defendant had a blood alcohol level above the legal limit, a fact that contributed both to the collision itself and plaintiffs injuries. The jury awarded $243,952 in compensatory damages, and the trial then turned to the issue of punitive damages.

The evidence as to defendant’s financial worth was rather clear and not disputed. His testimony established that he had $4,500 in assets, consisting of a car, boat, furniture, clothing, and other personal property; he owns no real property, stocks, bank accounts or other assets, and has no available cash. Defendant also testified that his income in the previous year was little more than $2,600, from which he also paid child support. Plaintiff presented no evidence contradicting this showing of financial net worth.

Plaintiff adduced defendant’s deposition in which he refused to admit any fault in causing the injuries from his intoxicated condition. In fact, defendant stated that he did not believe he deserved any punishment for what he did and that an award of punitive damages would have to exceed $200,000 “to get his attention.”

In the end, the jury expressly found that he had a blood alcohol level above the lawful limit, that he was “driving while intoxicated” when he caused the accident, and that he “act[ed] in such a gross and flagrant manner at the time of the accident so as to show a reckless disregard of human life or the safety of persons exposed to the effects of his conduct.” The jury assessed punitive damages of $250,000. The trial court denied defendant’s motion for a remittitur and entered final judgment accordingly. Thence this appeal.

As a general matter, punitive damages may be assessed when the act in question was committed with malice, moral turpitude, wantonness, willfulness, outrageous aggravation, or in reckless indifference to another person’s legal rights. Fla. East Coast Ry. Co. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933). As at common law, punitive damages are premised on the enormity of the act resulting in the injury to the plaintiff, as where the act of private injury shares the attributes of a public wrong. Florida Southern Ry. Co. v. Hirst, 30 Fla. 1, 11 So. 506, 513 (1892); McRoberts, 149 So. at 635. Punitive damages, as the name implies, are awarded both as punishment to the defendant and as a warning to deter others from committing future acts of a similar nature. Campbell v. Gov’t Employees Ins. Co., 306 So.2d 525 (Fla.1974). Such punishment is not a matter of right but lies in the discretion of the jury. It depends on the facts of each case. Ross v. Gore, 48 So.2d 412 (Fla.1950); Joab, Inc. v. Thrall, 245 So.2d 291 (Fla. 3d DCA 1971).

It came to be argued that intoxicated driving cases, by their very nature, ought to be categorically within the jury’s authority to award punitive damages. In Ingram v. Pettit, 340 So.2d 922 (Fla.1976), the court confronted the issue “whether a jury should be allowed to consider an award of punitive damages where negligence is coupled with intoxication.” Id. at 923. That case, like this one, involved a rear end collision by a motor vehicle being operated by a driver who was seriously under the influence of alcohol. In the civil claim, plaintiff also sought punitive damages. The trial judge, however, granted a summary judgment removing the issue of punitive damages from the jury, and the district court affirmed.

On discretionary review in the supreme court, plaintiff argued that:

“a jury should be allowed to consider an award of punitive damages, [and] that a person who voluntarily intoxicates himself and then drives an automobile on the public highways of this state should be exposed to financial punishment.”

Id. at 923. In agreeing with this argument, the court explained:

“we hold that juries may award punitive damages where voluntary intoxication is involved in an automotive accident in Florida without regard to external proof of carelessness or abnormal driving, provided always the traditional elements for punitive liability are proved, including proximate causation and an underlying award of compensatory damages. We do not hold that intoxication coupled with negligence will always justify an award of punitive damages. We affirmatively hold that the voluntary act of driving ‘while intoxicated’ evinces, without more, a sufficiently reckless attitude for a jury to be asked to provide an award of punitive damages if it determines liability exists for compensatory damages.”

Id. at 924. The court justified its categorical decision thus:

“Today it is illegal to drive an automobile in the State of Florida if blood alcohol content is .10% Or more, regardless of proof as to the driver’s carelessness. Drinking to the point of intoxication is a voluntary act. Driving in an intoxicated condition is an intentional act which creates known risks to the public. We believe that the potentiality of an adverse award of punitive damages is a suitable corollary to those criminal laws designed to discourage this reckless disregard for the public safety.” ■ [footnote added]

Id. at 925. In short, the court recognized for the first time that injury claims caused by intoxicated drivers, by their very nature, qualify for punitive damages if the jury be so advised.

The contention that such punishment should be limited to the financial resources of the offending defendant was not addressed in Ingram. Nor had it been settled by preceding decisions. In Jones v. Greeley, 25 Fla. 629, 6 So. 448 (1889), the court had held in a defamation case that “the pecuniary circumstances of the defendant is a proper matter of evidence” as to the award of punitive damages. Id. at 449. From that point until the latter part of the 20th Century, the issue of financial worth centered around whether such evidence was admissible without addressing whether the financial worth of a defendant represented a maximum amount of punishment.

In Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975), the court was asked to answer a certified question inquiring whether, as a predicate for a claim for punitive damages, plaintiff is required to introduce evidence of defendant’s financial worth and ability to pay such damages in order for the issue to be considered by the jury. The court held that:

“evidence of financial worth is admissible and may be considered by the jury in its determination of the amount to be awarded as punitive damages, but evidence of worth is not a requisite to such award. If defendant’s financial worth is meager, it would be to his advantage to introduce such evidence in order to mitigate the damage award. As was stated by Sutherland in his Treatise on Damages, § 404 at 1315, ‘In cases where it is competent for the plaintiff to prove the wealth of the defendant to increase the damages, it is equally competent for the defendant to show a want of it to diminish them.’ ”

Id. at 765. Obviously, this is no clear holding of net worth as a limitation on punitive damages.

The court did not make that decision until Arab Termite & Pest Control of Florida v. Jenkins, 409 So.2d 1089 (Fla.1982). There, the court explained:

“Since the defendant’s financial position is proper for the jury to consider in imposing punitive damages, it must be considered along with the malice of the defendant’s conduct in ruling on the question whether the jury’s assessment is excessive in light of the manifest weight of the evidence. Punitive damages should be painful enough to provide some retribution and deterrence, but should not be allowed to destroy the defendant.” [e.o.]

Id. at 1043; see also Joab, Inc. v. Thrall, 245 So.2d 291, 293 (Fla. 3d DCA 1971) (“In awarding punitive damages the jury may properly punish each wrongdoer by exacting from his pocketbook a sum of money which, according to his financial ability, will hurt, but not bankrupt.”). Arab Termite establishes a judge-made limit on punitive damages — that is, that such damages may not exceed the defendant’s current ability to pay them. That leaves only the role of this limitation in the context of post trial motions and judicial review of such awards.

The issue presented by the motion for remittitur in this case required the court to assess whether the amount of punitive damages was within “the maximum limit of a reasonable range within which the jury may properly operate.” See Bould v. Touchette, 349 So.2d 1181, 1186 (Fla.1977); and Lassiter v. Int’l Union of Operating Eng’rs, 349 So.2d 622, 627 (Fla.1977) (“The appellate court should not disturb a verdict as excessive, where the trial court refused to disturb the amount, unless the verdict is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.”). Reading Bould and Lassiter according to their terms, the rule seems to be that a trial judge ordinarily should disturb any award of punitive damages that “exceed[s] the maximum limit of a reasonable range within which the jury may properly operate.” We know from Arab Termite that the reasonable range in which the jury may properly operate stops at the point where the amount would bankrupt the defendant.

Thus, the cases hold that while the jury has broad discretion in fixing an amount of punitive damages, its discretion is limited by the current financial resources of the plaintiff. The amount of punitive damages may not be so large as to exceed the defendant’s financial ability. Where the amount awarded exceeds defendant’s financial ability — that is, when it is greater than the “reasonable range within which the jury may properly operate” — it is ipso facto an abuse of discretion for the trial judge to refuse a remittitur and corresponding right of new trial. Hence it was error for the trial judge to refuse a remittitur or new trial.

Although we are required to follow and apply the Arab Termite limitation, we think it is not improper to suggest that while there may be some reason to apply the rule against economic castigation in an individual case, it makes no sense to do so in this one. First is the obvious problem of financial truth seeking. In this case the evidence of financial worth comes entirely from the defendant, the person whose interest is paramount in minimizing the extent of the resources available. Under the present state of the law, it appears that the jury must accept the defendant’s showing and reduce what might have otherwise been the sum awarded accordingly. But what if the jury does not believe defendant’s protestations of poverty? What if plaintiff adduces contrary evidence? Should the jury be required to make specific findings as to defendant’s financial worth? What if the trial judge disagrees with the jury’s resolution of the financial worth issue? In none of the cases is it explained how this limitation is supposed to play out.

In this case defendant specifically admitted that any punitive damages would have to exceed $200,000 “to get his attention.” In other words, he all but invited the jury to find that the amount of any civil punishment would have to be at least that large to serve the purposes for which such punishment was intended and assessed. Why should he be allowed to make such an admission, and then hide behind the eco-' nomic castigation limiting rule?

Moreover, the Legislature has singled out DUI cases as uniquely qualified for punitive damages. The effect of the statutes on punitive damages in DUI cases is to permit awards greatly exceeding any objective limit on the amount that may legally be awarded under current statutory law. Conspicuously, nothing in the statutes suggests an economic castigation limit on punitive damages or, if one should exist, that it would apply in DUI cases.

Under Florida law for the enforcement of judgments, the judgment creditor can levy on any assets of defendant but only to the extent that they are not exempt from such levy. For example, a fixed percent of the debtor’s earned income from employment is protected from garnishment; the debtor’s homestead is protected from levy and execution; and the debtor may exempt personal property up to $1,000 in value. Thus the judgment creditor may not take all that the debtor has. Yet so protected are judgments for punitive damages from driving while intoxicated that the debtor may not even use federal bankruptcy law and its purposes of providing a “fresh start” to avoid such damages.

Punitive damages are nothing more than civil fines determined by juries instead of judges. They express a community’s measurement of the enormity of specific malicious conduct — conduct that must necessarily be beyond civilized norms. In our criminal law, fines may be set in amounts exceeding the financial resources of defendant. When a convicted defendant is unable to pay, the fine is not reduced to his means but may instead be paid over time as he acquires assets or income. Thus, a defendant convicted of the felony crime of DUI is thereby subject to substantial fines, the amount of which may be well beyond his current means. The criminal DUI fine — but not the civil one — may be hung over him like a Damoclean sword. He can be forced to make periodic payments on it as he earns the resources to do so, but the victim will never share in any of it.

It seems anomalous that the amount of society’s outrage at malicious conduct violating both criminal and civil norms may be fixed by judgment in criminal cases, with compelled payment to await a judgment debtor’s acquisition of resources to pay it, but not in civil cases. As this civil financial castigation limitation is judge-made, it should be eliminated by judges.

But the judges on this court are not authorized to do so. We follow Arab Termite but certify to the supreme court as a question of great public importance whether the economic castigation limitation on punitive damages should be eliminated entirely or at least amended in cases of injury caused by driving while intoxicated.

In this case, we reverse the trial court’s denial of a remittitur and new trial, remanding for further proceedings.

GUNTHER and STONE, JJ., concur.

      . The only pertinent change in the statutory law relied on by the Ingram court is that now the offending level of blood alcohol has been lowered to .08. § 316.193(l)(b), Fla. Stat. (2002).

      . Lehman v. Spencer Ladd’s Inc., 182 So.2d 402 (Fla.1966), is not a necessary holding on the issue. In referring to "punishment of each wrongdoer by exacting from his pocketbook a sum of money which, according to his financial ability, will hurt, but not bankrupt,” the court was venturing into dicta. Id. at 404.

      . There are several locutions used to state this notion, e.g., "economic castigation,” "bankrupt the defendant,” "destroy the defendant” are all used. They all seem to state the same idea, that punitive damages should not exceed a defendant’s present ability to pay them.

      . See § 768.736, Fla. Stat. (2002).

      . See 11 U.S.C. § 523(a)(9) (2002).


text:
    Terry Antwine GLISPY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-5046.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

At defendant’s plea hearing, the trial judge failed to state the specific charge to which defendant was entering a negotiated plea of no contest. He had been charged with committing lewd and lascivious conduct (LLC) and with possession of cocaine. The written plea agreement stated that defendant would plead guilty to one count of lewd, lascivious or indecent assault and that the state would dismiss all other pending charges against him in Indian River County. The agreement also provided that his maximum sentence would be 68 months, followed by sex offender probation.

Before being sentenced, defendant moved to withdraw his plea. He claimed that he did not know he was entering a plea to the lewd and lascivious conduct charge. Instead he claimed that he thought he was entering a plea to the cocaine possession charge and another charge of driving while license suspended but that he would face trial on the LLC charge. He asserted that he did not commit that offense and had repeatedly told his previous attorney that he wanted a trial on this charge. He said that his attorney at the plea was angry with him because he owed him money. He related that his attorney had spoken very negatively to him, had rushed him, and “talked over [his] head.” He admitted that he signed the plea agreement, but that he did not read the written plea agreement himself, but that his attorney had read it to him. Defendant later fired his attorney and obtained new counsel.

At a hearing on the motion, defendant testified in substance as set forth in the preceding paragraph. The trial judge stated that he remembered the plea colloquy “very well,” and that he had gone over the plea agreement in “great detail” with defendant. The court denied the motion to withdraw the plea and later adjudicated defendant guilty. At a later sentencing hearing, represented by a new attorney, defendant renewed the motion to withdraw his plea, and the trial court again denied it. The trial court then sentenced him to 68 months in prison, followed by 5 years sex offender probation. We reverse.

On appeal, defendant argues that under the rules he should have been allowed to withdraw his plea. Rule 3.170(f) provides:

“Withdrawal of Plea of Guilty. The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty....”

In Robinson v. State, 761 So.2d 269 (Fla.1999), the court approved the following explanation of this provision:

“The burden is upon a defendant to establish good cause under the rule, and use of the word ‘shall’ indicates that such a showing entitles the defendant to withdraw a plea as a matter of right. Use of the word ‘may,’ however, suggests that the rule also allows, in the discretion of the court, withdrawal of the plea in the interest of justice, upon a lesser showing than good cause. In any event, this rule should be liberally construed in favor of the defendant. The law inclines toward a trial on the merits; and where it appears that the interests of justice would be served, the defendant should be permitted to withdraw his plea. A defendant should be permitted to withdraw a plea ‘if he files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting his rights’ ” [c.o., e.o.]

761 So.2d at 274. Although in Robinson the court emphasized “mental weakness” and “other circumstances affecting his rights,” it could just as easily have highlighted the alternative ground of “mistake.” In other words where a defendant similarly situated shows that his plea was entered as a result of mistake, he should be allowed to withdraw the plea and go to trial. See also Smith v. State, 840 So.2d 404, 406 (Fla. 4th DCA 2003) (trial court is obligated to allow defendant to withdraw a plea as a matter of right if good cause is shown; defendant should have been allowed to withdraw plea where no evidence contradicted defendant’s testimony as to misunderstanding as to sentence).

In this case there is no evidence contradicting defendant’s testimony as to the circumstances surrounding his plea. The transcript supports his contention that during the plea hearing the trial judge never specifically stated the precise charge to which defendant was formally pleading no contest. Had he done so, a misunderstanding might have been avoided.

Accordingly, defendant has carried his burden of showing good cause to withdraw his plea. Applying the reasoning of the foregoing cases, we therefore reverse the trial court’s denial and remand with instructions to permit the withdrawal of the plea and allow defendant to stand trial.

REVERSED.

STONE and WARNER, JJ., concur.


author: WARNER, J.

text:
    Eric REIMSNYDER, Appellant, v. SOUTHTRUST BANK, N.A. and Carroll Richardson, Appellees.
    No. 4D01-4922.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.

      David P. Ackerman and Scott J. Link of Ackerman, Link & Sartory, P.A., West Palm Beach, for appellant.
    John R. Eubanks, Jr. of Moyle, Flani-gan, Katz, Raymond & Sheehan, P.A., West Palm Beach, for appellee Southtrust Bank, N.A.
    Steven A. Mayans of FitzGerald, Hawkins, Mayans & Cook, P.A., West Palm Beach, for appellee Carroll Richardson.
   WARNER, J.

The issue in this case involves the liability of a bank to a third party for providing a reference as to one of its account customers. The bank officer told the third party that its customer was a reputable company, which the third party contends was a misrepresentation. The third party invested in the company, and six months later the company was ultimately investigated for fraud by the Securities and Exchange Commission. The trial court granted summary judgment in favor of the bank. We affirm, holding that the bank had no duty of care to the third party in accordance with the Restatement (Second) of Torts, section 552.

A representative of International Capital Management, Inc. (“ICM”), solicited appellant, Eric Reimsnyder (“Reimsnyder”), a sophisticated stock investor, to invest in the company which traded in foreign currency. ICM provided Reimsnyder with a list of references, one of whom was Carroll Richardson (“Richardson”), branch manager of Southtrust Bank in Palm Beach where ICM had its accounts. Reimsnyder was not a customer of Southtrust. When Reimsnyder called Richardson regarding ICM, he spoke to her for about five to seven minutes. She told him the company was an account holder with very large deposits. When Reimsnyder asked her about the company, which he knew had only been in existence for about six months, Richardson said it was a safe, secure, and reputable company. Reimsny-der told her he was considering investing about $250,000 in ICM. She asked about his other investments, and he told her he invested in stocks. Richardson said that investing in ICM would be good because he would not be putting all of his “eggs in one basket.” Reimsnyder testified that this was “friendly” advice and that he was not relying upon Richardson to provide investment advice.

According to Reimsnyder, because Richardson “legitimatized” ICM for him after his own review of the documents given to him by ICM, he decided to invest in the company in April of 1998. In September of 1998, the Securities and Exchange Commission filed a complaint against ICM for securities fraud. It froze all of ICM’s assets and ICM consented to the appointment of a receiver. Reimsnyder only received about 19% of his investment back. Any further distribution is unlikely.

Reimsnyder sued Southtrust and Richardson for fraud, negligent misrepresentation, and breach of fiduciary duty. South-trust and Richardson each moved for summary judgement as to all counts. They both claimed that Richardson did not owe a duty of care to Reimsnyder and that Richardson’s statements were either true or only opinions, not facts, and could not form the basis of a misrepresentation claim. In support of her summary judgment motion, Richardson filed an affidavit attesting that ICM was the largest depositor at her branch, with an average daily balance of $295,660.84 and total deposits of $19 million over the nine months it maintained an account with Southtrust and its predecessor. Reimsnyder’s deposition also was submitted in which he testified that Richardson told him ICM was reputable and had very large deposits. He admitted that he did not inquire as to what Richardson meant by “very large.” He also testified that he believed she was acting in good faith and did not know of any fraud on behalf of ICM when she spoke to him.

In opposition to the motions for summary judgment, Reimsnyder argued Richardson had a duty under the Restatement (Second) of Torts, section 552, to provide him with information non-negligently. Reimsnyder also submitted the affidavit of a banker, who also was a former deputy banking commissioner for the State of Florida. He attested that had Richardson reviewed ICM’s account activity and seen that all the monies deposited were withdrawn immediately, it should have raised suspicions about the company. He opined that Richardson violated Southtrust’s policy to “know its customers” by understanding their banking practices.

The trial court entered summary judgment in favor of Southtrust and Richardson. The court found no legal duty between Southtrust and Reimsnyder, because Southtrust and Richardson were not parties to the underlying business transaction between Reimsnyder and ICM. It also determined that none of the statements attributed to Richardson were demonstrably false at the time she made them or, alternatively, her statements were merely opinions. Further, the court determined fraud could not be proven because there was no intent to deceive. Reimsnyder appeals only the entry of summary judgment as to the fraud and negligent misrepresentation counts.

Reimsnyder claims that despite the lack of privity between Southtrust and himself, Southtrust and Richardson are still hable for Richardson’s negligent misrepresentations because she undertook to provide information to him in connection with his investment in ICM. He relies on the Restatement (Second) of Torts, section 552(1), which section provides:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Our supreme court adopted this position on negligent misrepresentation in Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334, 339 (Fla.1997). There, a purchaser of real estate sued a vendor for negligent misrepresentation regarding zoning restrictions on the property. The court held that the vendor could be liable for a misrepresentation or nondisclosure, even though it was unintentional. See id.

In Gilchrist, the parties were in privity based upon the contract of sale. The issue presented in this case is whether this rule applies where the defendant who supplied the erroneous information has no privity or pecuniary interest in the transaction. Comment c. to section 552 clarifies the pecuniary interest in the transaction and states in part:

The rule stated in Subsection (1) applies only when the defendant has a pecuniary interest in the transaction in which the information is given. If he has no pecuniary interest and the information is given purely gratuitously, he is under no duty to exercise reasonable care and competence in giving it.

(Emphasis added).

Comment d. further states:

The defendant’s pecuniary interest in supplying the information will normally lie in a consideration paid to him for it or paid in a transaction in the course of and as a part of which it is supplied. It may, however, be of a more indirect character. Thus the officers of a corporation, although they receive no personal consideration for giving information concerning its affairs, may have a pecuniary interest in its transactions, since they stand to profit indirectly from them, and an agent who expects to receive a commission on a sale may have such an interest in it although he sells nothing.
The fact that the information is given in the course of the defendant’s business, profession or employment is a sufficient indication that he has a pecuniary interest in it, even though he receives no consideration for it at the time. It is not, however, conclusive. But when one who is engaged in a business or profession steps entirely outside of it, as when an attorney gives a casual and offhand opinion on a point of law to a friend whom he meets on the street, or what is commonly called a “curbstone opinion,” it is not to be regarded as given in the course of his business or profession; and since he has no other interest in it, it is considered purely gratuitous. The recipient of the information is not justified in expecting that his informant will exercise the care and skill that is necessary to insure a correct opinion and is only justified in expecting that the opinion will be an honest one.

Section 552 has been interpreted as limiting liability for the supply of false information to those entities that are in the business of supplying a particular type of

information or those who have a pecuniary interest in the transaction to which the information pertains. See Geosearch, Inc. v. Howell Petroleum Corp., 819 F.2d 521, 524 (5th Cir.1987); Cont’l Leavitt Communications, Ltd. v. PaineWebber, Inc., 857 F.Supp. 1266, 1270-71 (N.D.Ill.1994) (finding brokerage house that maintained research department with sole function of providing brokers with information to pass on to clients was in business of supplying information). However, when the information supplied is “gratuitous,” no liability attaches because “the user of the information is not justified in expecting the supplier to have used due care in given [sic] the information.” Cont’l Leavitt, 857 F.Supp. at 1270 (citing Restatement (Second) of Torts § 552, comment d. (1977)). The supplier is only charged with the obligation to “speak in good faith and without consciousness of a lack of any basis for belief in the truth or accuracy of what he says.” § 552, cmt. a. In other words, the standard is one of honesty. § 552 comment d.

Southtrust and Richardson were not in the business of supplying information regarding the financial health of companies. A bank may have information regarding the size of deposits and the creditworthiness of its customers based upon their dealings with the bank, but there is neither evidence, nor did Reimsnyder allege, that Southtrust’s business included the dissemination of information regarding the intricacies of its customers’ particular businesses. While Reimsnyder’s expert testified that a bank has an obligation to know its customers, such knowledge is for the purpose of serving the customers and protecting the bank and not for the purpose of disseminating information to third parties.

Further, neither Southtrust nor Richardson had any pecuniary interest in the transaction between Reimsnyder and ICM. The bank did not receive any compensation, nor was there any evidence of even an indirect pecuniary interest on behalf of the bank or Richardson, such as a loan between ICM and the bank which would have been paid off with the proceeds of the investment. In short, Richardson’s information was given gratuitously to a person inquiring about a bank customer, not because there was any pecuniary interest in the transaction.

The cases cited by Reimsnyder are all distinguishable from the present facts. In Community Bank, Lake Oswego, Oregon v. Bank of Hallandale & Trust Co., 482 F.2d 1124, 1125-26 (5th Cir.1973), an Oregon bank contacted a Florida bank regarding a customer of the latter, indicating that it intended to make a loan to the customer of $50,000. The Florida bank official told the Oregon bank that the customer was a good one, with a seven figure trust account at the bank, and the Florida official offered to set aside securities held by the bank as collateral for the Oregon bank loan. This information was false because the customer had closed his account at the Florida bank. Nevertheless, after a couple of contacts and a letter of instruction from the Oregon bank to the Florida bank regard-* ing the collateralization of the.loan, and agreement by the Florida official, the Oregon bank disbursed the funds to the customer and consequently suffered a loss. As the facts clearly demonstrate, actual fraud occurred in this transaction, not negligent misrepresentation. Where actual fraud is present, there is no policy reason to limit the liability of the maker of the statement, “for no interest of society is served by promoting the flow of information not genuinely believed by its maker to be true.” § 552 cmt. a.

Likewise, Lehigh Valley Trust Co. v. Central National Bank of Jacksonville, 409 F.2d 989, 993-94 (5th Cir.1969), involved actual fraud by the bank which supplied information. In addition, the bank had a pecuniary interest in the transaction in which the information was supplied. See id. at 991. Similarly, although the facts are not fully set forth in Atlantic Security Bank v. Adiler, 760 So.2d 258 (Fla. 3d DCA 2000), the recovery was based upon fraud, and it appears the bank also had a pecuniary interest in the transaction that was the subject of the information.

In Central States Stamping Co. v. Terminal Equipment Co., 727 F.2d 1405, 1409 (6th Cir.1984), the court, citing to Restatement (Second) of Torts, section 551 as support, held a bank liable for representations it made regarding the financial condition of one of its customers. A third party, Central States, was seeking to purchase machines made by the bank’s customer, Terminal Equipment. Prior to the purchase, Central States requested information regarding Terminal’s financial capabilities, and Terminal referred Central States to the bank. The bank informed Central States that Terminal was maintaining a satisfactory credit relationship with the bank and was trustworthy. In fact, Terminal was seriously indebted to the bank which had assumed a supervisory role over Terminal’s day to day management. Based upon the bank’s assurances, Central States went ahead with the purchase and paid a $50,000 deposit. Terminal never produced the machines, nor refunded the deposit. Instead, part of the money went to pay back the bank for previous loans. The court acknowledged that while the bank may not have had a duty to speak, once it decided to do so, it had the duty to disclose information in its possession which would reasonably be considered material to the contemplated transaction. See id. at 1409. However, the court qualified this duty, stating, “[t]he duty is particularly clear when the party answering the inquiry benefits directly from the actions of the inquiring party. Here the Bank was able to apply $30,000 to its debts which Central States asserts it never would have paid if it had known Terminal’s true financial position.” Id. Because the bank had a pecuniary interest, Restatement section 552 would apply to it.

In Barnett Bank of West Florida v. Hooper, 498 So.2d 928 (Fla.1986), our supreme court considered a bank’s duty in connection with its involvement in transactions with its customers. There, Hooper, a customer of the bank, was told by a loan officer that Hosner Investments, another bank customer, was financially sound and had passed Internal Revenue Service reviews. That prompted Hooper to borrow $90,000 from the bank and invest it with Hosner. At the time, the bank knew that Hosner was involved in a check kiting scheme and that its account at the bank was substantially overdrawn. When Hos-ner deposited Hooper’s investment, the bank applied it to the overdrafts and zeroed out Hosner’s account. Hooper sued the bank for fraud and breach of fiduciary duty. The supreme court held,

[WJhere a bank becomes involved in a transaction with a customer with whom it has established a relationship of trust and confidence, and it is a transaction from which the bank is likely to benefit at the customer’s expense, the bank may be found to have assumed a duty to disclose facts material to the transaction, peculiarly within its knowledge, and not otherwise available to the customer.

Id. at 925. Thus, the supreme court based the bank’s liability, even to its own customer, on the bank’s pecuniary interest in the transaction.

Some courts have applied a limited exception to this rule and held banks liable for negligent misrepresentation of factual information regarding a customer’s creditworthiness. For instance, in Berkline Corp. v. Bank of Mississippi, 453 So.2d 699, 702 (Miss.1984), the court held that:

Where a bank, through one of its duly authorized officers or agents, undertakes to supply credit information, arguably gratuitously, the bank and its officers are bound to use the skill and expertise which they hold themselves out to the public as possessing. There is ordinarily no reason why factual information given by the bank should not be accurate. When a bank officer makes representations or omissions of material facts false at the time, and where that officer has not exercised reasonable care and diligence to see that the information dispensed is accurate, the bank may incur a liability.

In that case, the bank officer significantly misstated the credit history of the bank’s customer to an inquiring business. The business agreed to make a sale on credit to the customer and consequently lost approximately $10,000 in merchandise when the customer failed to pay. The court held that the bank may be liable for material misrepresentations of fact. See id. at 702; also M.S.A § Tubular Prod., Inc. v. First Bank & Trust Co., 869 F.2d 1422, 1424 (10th Cir.1989) (holding representations from a bank that a check of $95,000 from bank’s customer would be honored when customer usually had less than $10,000 on deposit, was actionable); Nevada Nat’l Bank v. Gold Star Meat Co., 89 Nev. 427, 514 P.2d 651, 654 (1973) (holding a bank officer who informed a third party that it would be safe to extend $8,000 credit to bank customer, although customer did not have an open account at the bank, could be held liable for the material misrepresentation).

Florida applied this rule in Forbes v. Auerbach, 56 So.2d 895, 900 (Fla.1952). The supreme court noted that:

[RJecovery may be had for misrepresentation as to a third party’s financial condition where a person, for the purpose of inducing another to lend money or sell goods or other chattels on credit to said third person by misrepresenting the financial responsibilities of such third person or by misrepresenting the solvency or financial responsibility of such third person.

(Citations omitted). However, in Auer-bach, as in the other cases, the misrepresentations were clearly fraudulent. Moreover, they were misrepresentations as to specific past facts, which the bank officer knew were false.

In this case, the bank was not called upon to make a specific representation regarding ICM’s creditworthiness on a particular transaction, and Richardson made no such statements. The bank had no pecuniary interest in the transaction between Reimsnyder and ICM and no evidence of actual fraud was presented. Thus, the information was gratuitously supplied, and the bank and Richardson cannot be held liable. As Reimsnyder himself testified, Richardson acted in good faith. Therefore, we conclude that summary judgment was properly rendered.

Because there was no evidence of fraudulent misrepresentations, the court was also correct in granting summary judgment on the fraud count.

Affirmed.

SHAHOOD and TAYLOR, JJ., concur.


text:
    John CARMODY, Appellant, v. State of FLORIDA, Appellee.
    No. 4D02-1519.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    Loren D. Rhoton of Rhoton & Hayman, P.A., Tampa, and John Carmody, Daytona Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s convictions for burglary of an occupied structure and petit theft are affirmed. However, we reverse appellant’s sentencing as his sentence imposed two, equal concurrent sentences pursuant to the Prison Releasee Reoffender Act and the habitual felony offender statute. We remand for resentencing as a prison re-leasee reoffender only, consistent with Grant v. State, 770 So.2d 655 (Fla.2000)(holding that the prison releasee reoffender statute precludes imposition of a sentence other than a prison releasee reoffender sentence unless the other sentence is harsher and, thus, equal concurrent sentences are not permitted.) Appellant need not be present for resentencing. Owes v. State, 790 So.2d 1287 (Fla. 4th DCA 2001)

GUNTHER, KLEIN and TAYLOR, JJ., concur.


author: POLEN, C.J.

text:
    STATE of Florida, Appellant, v. Joseph SYLVIO, Appellee.
    No. 4D02-1271.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Iva Oza, Assistant Public Defender, West Palm Beach, for appellee.
   POLEN, C.J.

Joseph Sylvio pled guilty to possession of cocaine, a third degree felony. § 893.13(6)(a), Fla. Stat. (2002). The State had offered Sylvio an adjudication with 184 days in jail and credit for 184 days time served, but Sylvio rejected the offer. The matter proceeded to a plea hearing and sentencing. Sylvio’s trial counsel informed the court that Sylvio had been advised by his out-of-state counsel to request a withhold instead of an adjudication. The trial court sentenced Sylvio to a “withhold and waive.” The State objected, questioning whether the sentence was legal since the court had not also placed Sylvio on probation. We agree with the State’s contention and find the sentence meted out below was not authorized by the law. As noted above, this issue has been preserved for appellate review. Cf. State v. Hewitt, 702 So.2d 633, 636 (Fla. 1st DCA 1997) (State’s argument that trial court erred in withholding adjudication -without also ordering probation, did not attempt to establish the sentence was “illegal,” but rather that it was unauthorized by the law, and thus had to be preserved; on the facts, court found this argument had not been preserved for appellate review).

Adjudication of guilt may be withheld if the trial judge places the defendant on probation. See State v. Seward, 543 So.2d 398 (Fla. 4th DCA 1989); State v. Scarantino, 543 So.2d 399 (Fla. 4th DCA 1989); see also State v. McFadden, 772 So.2d 1209, 1211 (Fla.2000)(“Trial courts may withhold adjudication of guilt after a plea has been accepted or after a verdict of guilty has been rendered and place the defendant on probation provided that the requirements of section 948.01(2), Florida Statutes, are met”)(emphasis added); Fla. R.Crim. P. 3.670. Sylvio’s sentence of withhold and waive, without also placing him on probation, is not authorized by the law, and, therefore, must be reversed.

The trial court has two sentencing alternatives, from which it may choose in its discretion, on remand. First, the court may reinstate the withhold of adjudication if the court also places Sylvio on probation. We note the court may impose probation on Sylvio with a condition that he serve 184 days (or less), with credit for the days which he has already served. See Seward, 543 So.2d at 399. In the alternative, the trial court may adjudicate Sylvio guilty with credit for time served.

REVERSED and REMANDED for re-sentencing.

GUNTHER and TAYLOR, JJ., concur.

      . While out on bond on this case, Sylvio was arrested on a federal charge and was currently being held in a federal prison in Pennsylvania. However, he was present at the instant plea and sentencing hearing.