author: WARNER, J. TAYLOR, J.,

text:
    Derrick L. DURRANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2885.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.

      Carey Haughwout, Public Defender, Margaret Good-Earnest and Michael Anti-nori, Assistant Public Defenders, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant appeals his conviction for burglary of a structure, making two arguments. First, he claims the court erred in denying his motion for judgment of acquittal because the state’s case was based upon circumstantial evidence, none of which was inconsistent with his reasonable hypothesis of innocence. Second, he contends the trial court erred in refusing to grant a mistrial based upon the prosecutor’s comment on his failure to testify. We conclude that the trial court ruled correctly and affirm.

Appellant was charged with burglary and theft of money from the Hibiscus Coffee and Tea restaurant. At trial, the manager testified that she left the restaurant at closing on the date of the incident. She could not remember if she was the last one to leave the restaurant or if all of the doors were locked when she left for the evening. She did recall leaving money in the cash register. The daughter of the president of the restaurant corporation arrived later that evening to transfer the day’s earnings from the cash register to the safe and to set the alarm. Upon arrival, she discovered a door unlocked and the cash register empty except for change. There was no evidence of forced entry into the restaurant.

Activity in the restaurant was recorded on videotape by four security cameras. The areas filmed were the main entrance, the cash register, the ATM, and the staircase leading from offices above the restaurant to an area near the back employee entrance. The videotape showed that on the date of the incident at 6:40 p.m., a man unsuccessfully tried to enter the restaurant through two locked doors that displayed the restaurant’s hours, indicating that the restaurant closed at 5:00 p.m. The man then walked out of camera view toward the employee entrance. There was no camera monitoring that entrance. At 6:43 p.m., the camera monitoring the cash register was abruptly pointed toward the ceiling, but the person who turned the camera was not captured on tape. At 6:44 p.m., the man who earlier tried to open the locked doors was shown on the tape running out of the restaurant. The man seen on the videotape was later identified as appellant.

At trial, appellant’s attorney admitted appellant entered the restaurant but claimed he did so to inquire about employment opportunities. After the state rested its case, appellant moved for a judgment of acquittal on the ground that, viewing all of the evidence in a light favorable to the state, the only evidence was circumstantial and not inconsistent with a reasonable hypothesis of innocence. The court denied the motion, and appellant was convicted by the jury, prompting this appeal.

Ruling on Motion for Judgment of Acquittal

“In a circumstantial evidence case such as this, a judgment of acquittal is appropriate if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Barwick v. State, 660 So.2d 685, 694 (Fla.1995) (citing Atwater v. State, 626 So.2d 1825, 1328 (Fla.1993); State v. Law, 559 So.2d 187, 188 (Fla.1989)). In ruling on the motion, the trial judge must determine that “there is competent evidence from which the jury could infer guilt to the exclusion of all other inferences. If there is an absence of such evidence, a judgment of acquittal is appropriate.” Barwick, 660 So.2d at 694. (citation omitted).

Although the state must introduce competent evidence that is inconsistent with the defendant’s theory of events, the state’s evidence does not need to “conclusively rebut every possible variation of events which could be inferred from [defendant’s] hypothesis of innocence.” Id. at

695 (citations omitted). Whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to decide. See Law, 559 So.2d at 188.

If there is room for a difference of opinion between reasonable people as to the proof or facts from which an ultimate fact is to be established, or where there is room for such differences on the inferences to be drawn from conceded facts, the court should submit the case to the jury.

Taylor v. State, 583 So.2d 323, 328 (Fla.1991) (citing Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). “[T]he jury need not believe the defense version of facts on which the state has produced conflicting evidence.” Id. at 328-29 (citing Cochran v. State, 547 So.2d 928, 930 (Fla.1989)).

During opening statement, Durrant claimed that he entered the restaurant to look for employment. However, the state offered evidence inconsistent with this contention. Durrant was shown on the videotape approaching the locked entrance of the restaurant on which the hours of operation were posted. Durrant arrived over an hour after closing. He entered through the employee entrance, not a public entrance. During the short time in which he was in the closed restaurant, the camera over the cash register was turned away. He was then seen running from the restaurant moments later, another fact which is inconsistent with his theory that he entered the restaurant for an employment application and left when he discovered no one was there. These facts adduced by the state were inconsistent with his theory of innocence.

On appeal, appellant also argues the state engaged in an impermissible pyramiding of inferences. However, that argument was not made to the trial court. It is therefore not preserved for appeal. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982).

Comment on Defendant’s Failure to Testify

Although defense counsel stated in his opening statement that Durrant admitted to being in the restaurant looking for an employment application, Durrant did not testify and did not offer any other evidence. During his closing argument, the prosecutor noted, “[i]f he was going in for an employment application, of which there is no evidence by the way, [and] no sworn testimony by the way.” Defense counsel’s immediate objection, was sustained by the trial court, and the jury was instructed to disregard the statement. The trial court denied a subsequent motion for mistrial.

Because only Durrant could have testified that his reason for going into the restaurant was to obtain an employment application, the prosecutor’s statement was a comment on the defendant’s failure to testify. See Rodriguez v. State, 758 So.2d 29, 38 (Fla.2000); Brown v. State, 771 So.2d 603, 605 (Fla. 4th DCA 2000). The state argues the comment was an invited response to defense counsel’s opening statement. Rodriguez noted that whether a comment on a failure to testify is permissible under the “invited response” exception should be narrowly interpreted. 753 So.2d at 39. This case is distinguishable from other cases applying the invited response analysis to comments on the failure to testify. For instance, in Austin v. State, 700 So.2d 1233, 1235 (Fla. 4th DCA 1997), we determined the invited comment made by the prosecutor was a comment on other evidence introduced, not on the defendant’s failure to testify. In Brown, we determined the prosecutor’s comment in closing argument touched upon the defendant’s failure to testify but was invited because of defense’s opening statements, defense counsel’s questioning of other witnesses throughout trial, and defense’s closing argument. 771 So.2d at 605; see also Rivera v. State, 840 So.2d 284, 287 (Fla. 5th DCA 2003); Mitchell v. State, 304 So.2d 466, 469 (Fla. 3d DCA 1974). We have found no case where a statement by defense counsel in opening statement alone was determined to invite a comment on defendant’s constitutional right not to testify in the prosecutor’s closing argument.

We need not determine this point, however, because when defense counsel objected to the comment, the court sustained the objection and gave a curative instruction to the jury to disregard the comment. The court then denied defense counsel’s subsequent motion for mistrial. Our standard for review of the denial of the motion for mistrial is whether the trial court abused its discretion. See Goodwin v. State, 751 So.2d 537, 546 (Fla.1999) (citations and footnote omitted). Thus, we must “determine whether the single improper remark, to which the trial court sustained an objection and gave a curative instruction, was so prejudicial as to deny defendant a fair trial.” Id. at 547 (citation omitted). We conclude that it was not. Cf. Thomas v. State, 726 So.2d 369, 372 (Fla. 4th DCA 1999) (holding no abuse of discretion in denying a motion for mistrial despite prosecutor’s impermissible comment on defense’s failure to produce a witness, where defendant objected, trial court sustained the objection, and gave a curative instruction). We therefore affirm the conviction and sentence.

Affirmed.

STEVENSON, J., concurs.

TAYLOR, J., concurs specially with opinion.

TAYLOR, J.,

specially concurring.

I concur with the majority’s conclusion that the trial court properly denied appellant’s motion for judgment of acquittal. I also agree that the court did not abuse its discretion in denying the motion for mistrial, because in this case it cannot be said that the prosecutor’s comments were so prejudicial as to vitiate the entire trial.

I believe, however, that the instruction to “disregard the last comment” would have been more effective in guarding against any prejudice resulting from the prosecutor’s remarks had it included a prompt reminder to the jury that the defendant has a constitutional right not to testify and to have the state prove every element of the criminal charge.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Johnny J. UNION, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5174.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.
    Rehearing Denied March 18, 2003.
   PER CURIAM.

Johnny J. Union appeals the trial court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He alleges three errors in the calculation of his guidelines scoresheet. We affirm.

Union was convicted at jury trial of second-degree murder. At the sentencing hearing, the court observed that the sentencing range under the guidelines was seventeen to twenty-two years. However, the court also noted that Union had two additional charges of aggravated battery pending trial. Upon inquiry, the State advised the court that under the guidelines the maximum sentence on the aggravated battery charges, should he be convicted, would be nine years. The trial court then offered Union the option of proceeding to sentencing under the guidelines on the second-degree murder and going to trial on the additional charges or to entering a plea to the additional charges for negotiated sentences of twenty-five years on the second-degree murder charge and nine years on each of the aggravated battery charges with all of the sentences running concurrently. After discussing this with his attorney, Union chose to accept the negotiated sentence and entered his pleas to the additional charges.

Although Union now challenges the scoring under the guidelines, the record shows that the twenty-five-year sentence was not a guideline sentence but a negotiated sentence. Accordingly, even if there were errors in the scoresheet, Union is not entitled to relief. See Perry v. State, 705 So.2d 615 (Fla. 5th DCA 1998). Although the trial court erroneously concluded that the twenty-five-year sentence was a statutorily mandated sentence, it was correct to summarily deny Union relief as this was not a guideline sentence.

Affirmed.

FULMER, DAVIS, and KELLY, JJ., Concur.


author: FARMER, J.

text:
    Ray M. LANGLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2465.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

In July 1993, Langley pleaded no contest to burglary and battery on an elderly person. The court withheld adjudication and sentenced him to concurrent five year probation terms on each charge. An affidavit of violation of probation was filed on January 22, 1998, alleging that Langley failed to report to his probation officer for three months in late 1997. On April 24, 2001, Langley pleaded guilty to violating probation. The court thereupon reinstated his probation for two additional years with a special condition of 169 days in jail, and credit for time served. He timely moved to correct an illegal sentence, pointing out that five years was the maximum sentence for his crimes, and that at the time of sentencing on the VOP he had already served more than five years of probation for these offenses. The trial judge denied his motion. We reverse.

Upon revocation of probation, the time served on probation for a given offense must be credited toward any new term of probation imposed for that same offense, when necessary to ensure that the entire term of probation does not exceed the statutory maximum for an offense. State v. Summers, 642 So.2d 742 (Fla.1994) (holding that State v. Holmes, 360 So.2d 380 (Fla.1978), is distinguishable). Under these circumstances, the probationary period is not a sentence within the meaning of section 948.06. Summers, 642 So.2d at 744. Accordingly, section 948.06 does not apply. Summers, 642 So.2d at 744 (finding that section 948.06 “speaks only to the situation where a ‘sentence’ is imposed upon revocation of probation or community control.”).

Because Langley had already served more than five years on probation when his probation was revoked, the trial court had no authority to impose any additional probation for these offenses. See also Hughes v. State, 667 So.2d 910 (Fla. 4th DCA 1996) (finding that only a valid order of revocation terminates probation). We reject the state’s argument that the mere failure to file reports, without more, requires the court to toll the period of probation. See Young v. State, 739 So.2d 1179, 1180 (Fla. 4th DCA 1999) (holding that failure to file reports is mere violation of probation, not equivalent to absconding, and thus does not toll the period of probation).

REVERSED.

GUNTHER and HAZOURI, JJ., concur.

      . § 948.06, Fla. Stat. (1993) ("[n]o part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve....”).


text:
    Rayvon L. BOATMAN, Appellant, v. James V. CROSBY, Jr., J.R. Jenkins, Jimmy C. Prevatt, et al., Appellees.
    No. 4D01-2621.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Rayvon L. Boatman, Lake City, pro se. Charlie Crist, Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauderdale, for appellees.
   PER CURIAM.

Appellant Rayvon Boatman has appealed an order of the circuit court dismissing without prejudice his civil complaint against various defendants employed by the State prison system. Since Boatman has attempted to appeal a non-appealable order, we dismiss the instant appeal without having to address the merits of the specific claims raised in Boatman’s complaint. See Hollingsworth v. Brown, 788 So.2d 1078, 1079 n. 1 (Fla. 1st DCA 2001); Benton v. Dep’t of Corrections, 782 So.2d 981 (Fla. 1st DCA 2001).

We note the underlying dismissal without prejudice provided Boatman would have 30 days within which to amend his complaint in the circuit court. It appears from the record before this court, that Boatman did in fact file an amended complaint in the Okeechobee Circuit Court. Regardless, Boatman’s attempt to appeal a non-appealable order is dismissed.

DISMISSED.

POLEN, C.J., GUNTHER and MAY, JJ., concur.

      . We are referring to Boatman’s pleading entitled "Demand for Judgment” which was filed with the Okeechobee Clerk of Court on May 11, 2001, in response to the trial court's oral pronouncements at the April 2, 2001 telephonic hearing. We simply note this pleading was filed and pass no judgment on its substantive merits, e.g., whether or not it sufficiently pled ultimate facts as mandated by Black v. Rouse, 587 So.2d 1359 (Fla. 4th DCA 1991).


author: GRIMES, HUBERT L., Associate Judge.

text:
    Robert W. FOLEY, Appellant, v. STATE OF FLORIDA DEPARTMENT OF HEALTH, Appellee.
    No. 4D01-3451.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Osborne Walker O’Quinn of Osborne Walker O’Quinn, P.A., Fort Pierce, for appellant.
    Janine B. Myrick, Tallahassee, for ap-pellee.
   ON MOTION FOR REHEARING AND CLARIFICATION

GRIMES, HUBERT L., Associate Judge.

We grant appellee’s unopposed Motion for Rehearing and Clarification, withdraw the previous opinion in this case and substitute the following:

The Florida Department of Health (“Department”) filed an administrative complaint against appellant to revoke his paramedic’s certificate. The certificate of service shows that the complaint was mailed to appellant, Robert W. Foley, and received by H.W. Foley on May 10, 2001. On June 7, 2001, the Department filed and served a Motion for Default because it did not receive appellant’s Election of Rights form in a timely fashion.

Appellant alleges that he served the Election of Rights reply upon the Department on June 6, 2001. He alleges that he checked off the box on the form indicating that he did not dispute the facts alleged in the original complaint but requested an evidentiary hearing to offer proof of mitigation. The attorney for the Department received the election after filing the Motion for Default and then agreed to withdraw the motion. However, the Secretary of the Department thereafter, sua sponte, entered a final order revoking Foley’s certificate without a hearing or notice because appellant did not timely file or serve his election of rights.

The Department confesses error in entering this order revoking appellant’s paramedic certificate without a hearing. The Department acknowledges that it was equitably estopped from entering the order because the attorney for the Bureau of Emergency Medical Services advised appellant that his untimely “Election of Rights” form would be accepted and appellant detrimentally relied upon that representation and took no action subsequent to the filing of the election of rights form.

Accordingly, we reverse and remand this matter with instructions to the Department to conduct a proceeding pursuant to section 120.57(2), Florida Statutes, on the administrative complaint and afford appellant an opportunity to present evidence in mitigation as requested.

REVERSED AND REMANDED.

FARMER and TAYLOR, JJ., concur.


text:
    Michael LINDSAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3849.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Carey Haughwout, Public Defender, and Jeffrey Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

We affirm the order revoking appellant’s community control. Whether a defendant has violated probation or community control is a “question of fact for the trial court that will not be overturned on appeal unless there is no evidence supporting that decision.” Marcano v. State, 814 So.2d 1174, 1176 (Fla. 4th DCA 2002). The trial court did not abuse its discretion in finding appellant in violation. See Davis v. State, 796 So.2d 1222, 1226 (Fla. 4th DCA 2001). This case is distinguishable from the cases cited by appellant, because appellant failed to link his mental illness to his failure to return to the Foundations program and to comply with his reporting requirements. For example, in Williams v. State, 728 So.2d 287, 288 (Fla. 2d DCA 1999), the defendant’s psychiatrist confirmed that the defendant’s severe depression left him “crippled,” “immobilized,” and unable to comply with his probation.

AFFIRMED.

STEVENSON, GROSS and MAY, JJ., concur.


text:
    John JUDD, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4361.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with armed kidnaping (Count I), armed burglary of a dwelling (Count II), armed sexual battery (Count III), aggravated battery (Count IV), attempted first degree murder (Count V), aggravated battery (Count VI), armed burglary of a dwelling (Count VII), and stalking (Count VIII). The jury found him guilty of three counts of battery, lesser included offenses of Counts I, III, IV; aggravated battery, a lesser included offense of Count V; and trespass, a lesser included offense of Count VII. We affirm, but reverse two of the three misdemeanor battery convictions on double jeopardy grounds, as these offenses arose from a single episode against a single victim.

Under the Blockburger test, separate convictions for different offenses arising from a single act are only permissible where each separate offense contains an element that the other lacks. See 775.021(4)(a), Fla. Stat. (2000). “The proper analysis to determine whether offenses arise from the same criminal episode requires consideration of the following factors: 1) whether separate victims are involved; 2) whether the crimes occurred in separate locations, and 3) whether there has been a temporal break between the incidents.” Russo v. State, 804 So.2d 419, 420-21 (Fla. 4th DCA 2001)(quoting Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001)).

Olivard v. State, 831 So.2d 823, 824 (Fla. 4th DCA 2002). We have reversed multiple convictions for the same offense where the factual foundation for the charges arose from “essentially one continuous incident.” See Russo, 804 So.2d at 421; Johnson v. State, 744 So.2d 1221 (Fla. 4th DCA 1999)(reversing multiple aggravated battery convictions where the acts arose from a “single act occurring in an uninterrupted sequence”); Gresham v. State, 725 So.2d 419 (Fla. 4th DCA 1999); Campbell-Eley v. State, 718 So.2d 327 (Fla. 4th DCA 1998).

In this case, the evidence at trial showed that the three misdemeanor battery convictions were based on offenses that involved the same victim, occurred at the victim’s home, and were committed as part of one continuous criminal episode. Accordingly, we remand with directions to vacate two of appellant’s three misdemean- or battery convictions and sentences.

AFFIRMED in part; REVERSED in part and REMANDED.

SHAHOOD, TAYLOR, JJ., and FLEET, J. LEONARD, Associate Judge, concur.


text:
    Patricia McDONAGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4571.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Carey Haughwout, Public Defender, Jeffrey Anderson and Samuel A. Walker, Assistant Public Defenders, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant pled no contest to charges that she had written several checks to herself from her employer’s account without permission. We agree with her argument that restitution should not have included $800 in secretarial wages because those wages would have been incurred in any event. We affirm the other amounts included in restitution but remand for deduction of the $800 item.

POLEN, C.J., KLEIN and HAZOURI, JJ., concur.


text:
    Bruce STEINMANN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1982.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    John Olea of Lubin, Volker and Olea, P.A., West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals the trial court’s decision to seal his records instead of granting his petition to expunge his criminal history record under section 943.0585, Florida Statutes (2002). We reverse.

Any person who complies with the requirements of section 943.0585 may petition the court for the expunction of his/her criminal history record. However, “[t]his section does not confer any right to the expunction of any criminal history record, and any request for expunction of a criminal history record may be denied at the sole discretion of the court.” Id. (Emphasis added). It is error for the trial court to refuse or fail to exercise its discretion. See Boykin v. Garrison, 658 So.2d 1090 (Fla. 4th DCA 1995); Glosson v. Solomon, 490 So.2d 94 (Fla. 3d DCA 1986). The record in this case indicates that the trial court did not exercise any discretion in deciding not to expunge appellant’s record. Therefore, we reverse and remand for the trial court to exercise its discretion as to whether appellant’s record should be expunged.

Reverse and Remand.

POLEN, C.J., KLEIN and HAZOURI, JJ., concur.


author: TAYLOR, J.

text:
    J.M., Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1967.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

J.M. appeals a disposition order adjudicating him delinquent for possession of cocaine. We reverse because the state failed to prove that appellant was in constructive possession of the cocaine.

Appellant was a passenger in a car occupied by two others. The car was parked at night, with its lights on, in a warehouse parking lot adjacent to Boomers Amusement Park. When two deputies of the Bro-ward Sheriffs Office approached the vehicle, it started to move, but then stopped when the deputies turned on their patrol emergency lights. Sergeant Chase walked over to the driver’s side. As he approached, he smelled the odor of marijuana coming from the car. He asked the driver for his license, insurance, and registration. The driver had no identification and was asked to step out of the vehicle. Upon searching the driver, Sergeant Chase discovered $260 on his person.

Deputy Gebert approached the passenger side of the vehicle and ordered the front passenger and appellant, who was in the back seat, out of the vehicle. On the backseat floorboard, the officer found a Crazy Glue container. Inside the container were pieces of crack cocaine, cut in different shapes and sizes. Appellant was arrested and charged with possession of cocaine with intent to sell or deliver.

On cross-examination, Deputy Gebert admitted that the only reason he believed the Crazy Glue container belonged to appellant was because of its proximity to appellant in the car. He testified that when he first approached the vehicle, he did not see appellant make any furtive or suspicious movements. When he searched appellant, he did not find any drugs or money on him. Moreover, appellant did not make any incriminating statements. The driver, on the other hand, admitted that cocaine inside a film cannister found in the car belonged to him.

Appellant moved for judgment of acquittal, arguing that the state had failed to prove that he was in constructive possession of the cocaine. He contended that his mere proximity to the contraband was not sufficient to establish his knowledge of the cocaine’s presence. Appellant also asserted that the state’s evidence of intent to sell was insufficient. The trial court denied the motion and found appellant guilty of the lesser included crime of possession of cocaine.

Because appellant was not in actual, physical possession of the cocaine, the state had to proceed on a theory of constructive possession. See Scruggs v. State, 785 So.2d 605, 607 (Fla. 4th DCA 2001)(“Because appellant did not have actual, physical possession of the cocaine, the state was required to prove that he was in constructive possession of it.”). “To establish constructive possession of a controlled substance, the state must show that the accused had dominion and control over the contraband, knowledge of its presence, the ability to maintain control over it, and knowledge of its illicit nature.” Id.

If the premises on which the contraband is found is in joint, rather than exclusive, possession of a defendant, knowledge of the presence of the contraband on the premises and the accused’s ability to maintain control over it will not be inferred, but must be established by independent proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises. Mere proximity to contraband is not sufficient to establish constructive possession.

Dupree v. State, 705 So.2d 90, 94 (Fla. 4th DCA 1998) (citations omitted).

In this case, where there were two other occupants of the vehicle, the state needed to prove that appellant had actual knowledge of the presence of the cocaine or present evidence of incriminating statements and circumstances from which the trier of fact could lawfully infer appellant’s knowledge of the presence of the cocaine. The state, however, established only appellant’s proximity to the glue tube containing the cocaine. This alone failed to establish that appellant knew about the presence of the contraband or of its illicit nature. See Pressley v. State, 712 So.2d 1240 (Fla. 4th DCA 1998)(discussing that state failed to establish defendant’s knowledge of illegal drugs where small particle of crack cocaine and marijuana residue were found in car); McClain v. State, 559 So.2d 425 (Fla. 4th DCA 1990)(coneluding that state failed to prove constructive possession where cocaine was found in automobile in which defendant was a passenger; defendant was sitting over the cocaine, and, although his fingerprint was on the outside of paper bag in which cocaine was found, his fingerprints were not located on inner wrappings); Murphy v. State, 511 So.2d 397 (Fla. 4th DCA 1987)(discussing that state failed to prove defendant’s knowledge of cocaine found in car in which he was a passenger for a short time); Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976)(holding that state failed to present sufficient evidenced of defendant’s knowledge of the presence of marijuana in automobile); D.J. v. State, 330 So.2d 35 (Fla. 4th DCA 1976)(concluding that half-burned marijuana cigarette found by defendant/front-passenger was insufficient to prove that defendant constructively possessed cocaine); J.A.C. v. State, 816 So.2d 1228 (Fla. 5th DCA 2002)(concluding that state failed to prove constructive possession where marijuana cigarette was found in ashtray on the front passenger door, next to defendant); Skelton v. State, 609 So.2d 716 (Fla. 2d DCA 1992)(concluding that state failed to prove the defendant constructively possessed cocaine that was partially hidden under the passenger seat near where defendant’s feet had been, because mere proximity to contraband is insufficient).

The state’s argument that it proved knowledge by presenting evidence that the glue container was in plain view is unavailing. While knowledge of the presence of contraband can be established by proof that the contraband was in plain view, such proof was not presented here. The supplemented record shows that the glue container was not transparent. Thus, even assuming that the state proved that the glue container was in plain view, the state, at most, proved appellant’s knowledge of the presence of the glue tube, not the cocaine inside it. See Bradshaw v. State, 509 So.2d 1306, 1309 (Fla. 1st DCA 1987)(noting that drugs contained in a nontransparent envelope will not be considered to be in plain view).

For the stated reasons, we reverse the order adjudicating appellant delinquent of possession of cocaine.

SHAHOOD, J., and FLEET, J. LEONARD, Associate Judge, concur.

      . At the adjudicatory hearing the officer testified that the size and amount of the cocaine were consistent with sale, not personal use.


author: SCHWARTZ, Chief Judge.

text:
    Daisy ZIMMERMAN, Appellant, v. ECKERD CORPORATION, etc., Appellee.
    No. 3D02-1071.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Dunn, Johnson, Dunn & Rose and Neil Rose, Hollywood; J.H. Zidell, Aventura, for appellant.
    Groves and Verona and Russell Verona, for appellee.
    Before SCHWARTZ, C.J., and LEVY and WELLS, JJ.
   SCHWARTZ, Chief Judge.

The appellant fell on a wet spot in an Eckerd store. There was no evidence whatever as to the nature of the liquid, where it came from, or, much less, how long whatever it was had been there. Indeed, the only specific information about any legally relevant circumstance was the unimpeached testimony of an Eckerd manager that the floor was inspected and maintained “every five to ten minutes” before the accident. On this record, the trial court granted summary judgment for Eck-erd and the plaintiff appeals.

Although we are inclined to so rule, see Bien-Aime v. Miami-Dade County, 816 So.2d 1176 (Fla. 3d DCA 2002), we need not decide whether section 768.0710, Florida Statutes (2002), which in large part overruled Owens v. Publix Supermarkets, Inc., 802 So.2d 316 (Fla.2001), is retroactively applicable. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256 (Fla.2002); Silvers v. Wal-Mart Stores, Inc., 826 So.2d 513 (Fla. 4th DCA 2002). This is because the evidence of Eckerd’s maintenance of the premises operated both conclusively to rebut any Owens presumption of its negligence and affirmatively demonstrated the absence of its liability under section 768.0710(2)(b). In either case, summary judgment was properly entered.

Affirmed.

      . 768.0710 Burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises.—
      (1) The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.
      (2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that:
      (a) The person or entity in possession or control of the business premises owed a duly to the claimant;
      (b) The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and
      (c) The failure to exercise reasonable care was a legal cause of the loss, injury, or damage.


text:
    Robert BRADY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-251.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We find all issues raised in regard to the underlying conviction unpersuasive and affirm Brady’s conviction of second degree murder. However, the State concedes the trial court erred in dually sentencing Brady under both section 775.082(9)(a), Florida Statutes (2001), the Prison Release Reoffender Punishment Act (“PRRPA”) and section 775.087(2)(a), the “10-20-Life” statute, where the PRRPA sentence was for Life, but the 10-20-Life sentence was only for 25 to Life. See Smith v. State, 813 So.2d 1002, 1003 (Fla. 4th DCA 2002)(only where separate sentence under “10-20-Life” statute is greater than PRRPA sentence may it be imposed); Grant v. State, 770 So.2d 655, 659 (Fla.2000). Accordingly, we reverse and remand to vacate Brady’s sentence under section 775.087(2)(a). AFFIRMED in part; REVERSED in part.

POLEN, C.J., KLEIN and HAZOURI, JJ., concur.


author: PER CURIAM. STONE, J.,

text:
    BLACKPOOL ASSOCIATES, LTD., a British Virgin Island corporation, Petitioner, v. SM-106, LTD., a Florida limited partnership, S-M Corporation, a Florida corporation, as sole general partner of SM-106, Ltd., S. Martin Sadkin, Debra Sadkin, William M. Murphy, Una Murphy, and Equitable Bank, Respondents.
    Nos. 4D02-1930, 4D02-1974, 4D02-1978, 4D02-2081, 4D02-2219.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.

      H. Collins Forman, Jr. of H. Collins Forman, Jr., P.A., Fort Lauderdale, for petitioner.
    John F. Mariani and Christopher Kam-merer of Levy Kneen Mariani LLC, West Palm Beach, for petitioner.
    Mitchell W. Berger and Jeffrey S. Wert-man of Berger Singerman, Fort Lauder-dale, for respondents SM-106, LTD., S-M Corporation, William M. Murphy and Una Murphy.
   PER CURIAM.

We review five consolidated appellate proceedings challenging two trial court orders: 1) an order striking a notice of voluntary dismissal and 2) an order denying disqualification. Blackpool Associates, Ltd., through Kevin Murphy and the law firm of Levy, Kneen, Mariani LLC, filed an action to foreclose a note and mortgage alleging a default by SM-106, Ltd, and William and Una Murphy. William Murphy, through attorney H. Collins Forman, claimed ownership of Blackpool and moved to dismiss the litigation. Thereafter, William Murphy, on behalf of Blackpool, voluntarily dismissed the foreclosure action.

Within the first order, the trial court struck Blackpool/William Murphy’s notice of voluntary dismissal, with prejudice. When striking the voluntary dismissal, the trial court also reinstated the underlying case and the lis pendens. We deny the challenges to that order as no substitution of counsel was authorized. See Fla. R. Jud. Admin. 2.060(h); Hicks v. Hicks, 715 So.2d 304 (Fla. 5th DCA 1998).

We grant relief in connection with the trial court’s order that denied disqualification as the trial court provided Blaekpool/Kevin Murphy with legal advice and suggestions. See Cammarata v. Jones, 763 So.2d 552 (Fla. 4th DCA 2000); Crescent Heights XLVI, Inc. v. Sear-Air Towers Condo. Ass’n, Inc., 729 So.2d 420 (Fla. 4th DCA 1999); Shore Mariner Condo. Ass’n v. Antonious, 722 So.2d 247 (Fla. 2d DCA 1998), Chastine v. Broome, 629 So.2d 293 (Fla. 4th DCA 1993). Hence, the successor judge may reconsider any prior factual or legal rulings. See Fla. R. Jud. Admin. 2.160(h).

STEVENSON and HAZOURI, JJ., concur.

STONE, J. concurs specially with opinion.

STONE, J.,

concurring specially.

With respect to the petition for writ of prohibition, I concur on the authority of Cammarata. However, as indicated by my dissent in Cammarata, and but for Cammarata, I would distinguish the other opinions relied on by the majority and would have denied this petition. In all other respects, I concur in the opinion.


text:
    John Wayne OLDHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-131.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    James L. Eisenberg and Kai Li Aloe Fouts of James L. Eisenberg, P.A., West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions. On the state’s cross-appeal, we affirm the downward departure sentence and remand to the trial court for the entry of a written order specifying the reasons for the downward departure. See State v. Cruz, 710 So.2d 123 (Fla. 4th DCA 1998).

STEVENSON, GROSS and MAY, JJ„ concur.


text:
    Benjamin CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4954.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Carey Haughwout, Public Defender, and Matthew Lee Blust, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.140(b)(2)(A)(ii); Robinson v. State, 373 So.2d 898 (Fla.1979).

GUNTHER, STEVENSON and TAYLOR, JJ., concur.


author: STONE, J.

text:
    Darrel FORREST, Appellant, v. Amy L. FORREST, Appellee.
    No. 4D02-1904.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.

      Gordon C. Brydger of Law Offices of Gordon C. Brydger, P.A., Fort Lauder-dale, for appellant.
    Nancy W. Gregoire, Joel L. Krischbaum, and Katherine 0. Birnbaum of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appel-lee.
   STONE, J.

We reverse an order granting the wife’s petition for support unconnected with divorce. The trial court did not have personal jurisdiction over the husband under Florida’s long-arm statute.

The parties lived in Missouri and Illinois until November 2000, when the husband’s employment made it necessary for the family to move to Singapore with their two minor children. According to the terms of the husband’s employment contract, he would work in Singapore for at least two years and could stay on at his option.

In August 2001, the parties visited Florida, where the wife’s parents reside. During their one-week stay, the parties opened a joint bank account and purchased a home before returning to Singapore. According to the wife, the parties intended to return to Florida upon conclusion of the husband’s term of employment in Singapore. In December 2001, the wife, accompanied by the parties’ children, returned to Florida for knee surgery. Soon after she arrived in Florida, she filed this petition for alimony and child support unconnected with divorce. She also requested exclusive use and occupancy of the parties’ new home in Florida. The petition was personally served on the husband in Singapore and he promptly filed a motion to dismiss for lack of personal jurisdiction.

The trial court found that it had jurisdiction and entered an order granting the wife’s petition as it related to the support issue. As authority for its decision, the lower court cited Wachsmuth v. Wachsmuth, 528 So.2d 1201 (Fla. 4th DCA 1988), and Howell v. Howell, 545 So.2d 933 (Fla. 2d DCA 1989).

We have considered Wachsmuth and Howell, but deem them inapposite, as those cases resolve the issue of subject matter jurisdiction in separate maintenance actions. The issue in this case is personal jurisdiction (i.e., the trial court’s authority to determine the rights of the father), not subject matter jurisdiction (i.e., the trial court’s authority to decide the issue). Therefore, section 48.193(l)(e), Florida Statutes, is controlling:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(e) With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage.

§ 48.198(l)(e), Fla. Stat. (2001) (emphasis added).

As section 48.193(l)(e) provides, the husband is not subject to the court’s jurisdiction unless he maintained a “matrimonial domicile” or resided in Florida at the time the wife filed the subject petition. We conclude that the facts alleged in the wife’s petition do not support the finding of either requirement.

A “[mjatrimonial domicile” is the place where the parties “live together as husband and wife either actually or constructively.” See Farrell v. Farrell, 710 So.2d 151, 152 (Fla. 3d DCA 1998)(quoting Black’s Law Dictionary 978 (6th ed.1990)). Here, the place where the parties lived together as husband and wife was Singapore; the wife’s allegation that the Florida home was the matrimonial domicile because the husband purchased the home with the intention of living there one year later is insufficient to establish jurisdiction. See id. Further, we reject the wife’s contention that the husband’s one-week stay in Florida makes him a Florida resident for the purpose of satisfying this jurisdictional requirement.

On appeal, the wife argues that she alleged facts sufficient to meet the jurisdictional requirements of section 48.193(l)(c), Florida Statutes. We disagree. That section confers jurisdiction to the court over any person who owns, uses, possesses, or holds a mortgage or other lien on real property within this state. Although, here, the husband did own property in the state, that property was not the subject of the petition and can not give rise to the finding of personal jurisdiction. See Nichols v. Paulucci, 652 So.2d 389, 392 n. 5 (Fla. 5th DCA 1995)(“By itself, ownership of property is insufficient to subject a nonresident defendant to the jurisdiction of the courts of this state, unless the cause of action arose out of such ownership”). Thus, for the instant proceeding, section 48.193(l)(c) is not the applicable provision.

Based on the foregoing reasoning, we reverse the order partially denying the husband’s motion to dismiss and remand for further proceedings.

GROSS, J. and STERN, KENNETH, Associate Judge, concur.


text:
    William W. JESSEE, Appellant, v. Catherine JESSEE, Appellee.
    No. 3D02-1396.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Franklin & Criscuolo and Donald G. Criscuolo, North Miami Beach, for appellant.
    Philip E. Glatzer, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

The former husband William J. Jessee appeals a final judgment of dissolution of marriage, contending inter alia that the trial court abused its discretion in awarding the former wife Catherine J. Jessee the marital home as lump sum alimony. We agree with the former husband that, under the circumstances of this case, the award of the marital home to the former wife was an abuse of discretion.

The parties were married for nineteen years and have three minor children. Their principal asset is the marital residence which has an equity of approximately $55,000. Although throughout the marriage, she mostly stayed at home with the children, at the time of the trial, the then 43 year old former wife was employed full time as a secretary earning $1,356 per month. The 44 year old former husband had most recently been employed as a construction manager earning $5,500 a month. At trial, however, he testified that he was fired from his job because he had not brought his last construction job in on time. The trial court imputed his prior income to the former husband, and, using this figure, ordered the former husband to pay the former wife $1,000 per month in permanent alimony and $1,582 per month in child support until the children reached the age of majority, with the understanding that as each child reached majority the former husband’s share of the child support would be converted to alimony until the wife reached $2,000 per month in alimony.

In addition to the permanent alimony, the trial court awarded the parties’ marital residence to the former wife. This results in an unequal distribution of the parties’ marital assets (97% to the former wife and 3% to the former husband). Where the circumstances show no necessity nor legal justification, a distribution of marital property that creates such an inequitable impact constitutes an abuse of discretion. See, e.g., Porzio v. Porzio, 760 So.2d 1075 (Fla. 5th DCA 2000); Bible v. Bible, 597 So.2d 359 (Fla. 3d DCA 1992); Klinger v. Klinger, 570 So.2d 1042 (Fla. 3d DCA 1990); Savage v. Savage, 556 So.2d 1213 (Fla. 2d DCA 1990); and Satanonchai v. Satanonchai, 522 So.2d 1030 (Fla. 3d DCA 1988). The sole justification given for the award of the lump sum alimony was “the Husband’s intentional attempt to avoid financial obligations by intentionally putting himself in a position to be terminated.” R. 123. However, this fact was taken into consideration in imputing income to the former husband and in awarding permanent periodic alimony to the former wife. It cannot additionally support the award of lump sum alimony herein.

For the foregoing reasons, that portion of the final judgment of dissolution which awarded the former wife the marital home is hereby reversed. Finding no merit in the former husband’s remaining points on appeal, all other awards are affirmed. On remand, the trial court should award the former wife exclusive use and possession of the home until the children reach majority or she remarries, at which time the home should be sold and the proceeds equally divided between the parties. The trial court may also make such other rulings as are appropriate with regard to payment of the mortgage, taxes, insurance and other expenses of the property.

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

      . The husband was further ordered to keep in force a $500,000 life insurance policy naming the wife as the beneficiary, to continue providing medical insurance for his children through his employer, and to pay 68% of the children's college prepaid plan.


author: GROSS, J.

text:
    Gary W. ROBERTS and The Roberts Law Firm, P.A., f/k/a Roberts & Sojka, P.A., Appellants, v. FLORIDA LAWYERS MUTUAL INSURANCE COMPANY, a Florida corporation, Appellee.
    No. 4D02-1223.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.

      Aaron C. Wong and Brenton N. Ver Ploeg of Ver Ploeg & Lumpkin, P.A., Miami, for appellants.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Robert Geisler of Peterson, Bernard, Vandenberg, Zei, Geisler & Martin, West Palm Beach, for appellee.
   GROSS, J.

The issue in this case is whether a dispute between former partners in a law firm over how to divide fees and costs triggers coverage and a duty to defend under the law firm’s lawyer’s professional liability policy.

The trial court concluded that there was neither a duty to defend nor coverage under the policy in an order granting ap-pellee, Florida Lawyers Mutual Insurance Company’s (“Florida Lawyers”), motion to dismiss with prejudice for failure to state a cause of action. The Roberts Law Firm and Gary Roberts appeal. We affirm.

This appeal arises out of a separate action brought by Roberts’s former law partner, Cindy Sojka. The Sojka lawsuit stemmed from the breakup of two personal injury law firms, Roberts & Sojka, P.A., and Roberts, Sojka & Associates. The partners settled the “Witt” case and received $150,000.00 in advanced costs and expenses and $191,000.00 in legal fees. After the case was settled, but before the money was disbursed, Roberts terminated Sojka’s employment with the firm. She received no reimbursement for money she had loaned the firm and no part of the fee received.

Sojka filed suit against the two law firms and Roberts individually. The third amended complaint contained a derivative claim; Sojka sued Roberts on behalf of the Roberts/Sojka law firms claiming that Roberts had breached his fiduciary duty to the firms in his handling of the firm’s money. The pleading also contained counts for unjust enrichment, spoliation of evidence, and constructive trust.

Roberts and his new law firm notified Florida Lawyers of the Sojka lawsuit and requested that the company provide them with a defense under a lawyers professional liability policy. Florida Lawyers refused to provide a defense and declined coverage under the policy.

After a jury trial, the Sojka suit culminated with a final judgment on the derivative claim. Sojka, on behalf of Roberts & Sojka, P.A. recovered from Roberts a total of $302,106.26 in damages and $313,315.98 in attorney’s fees. Appellants’ cost to defend the Sojka action exceeded $270,000.

Appellants then filed this action against Florida Lawyers for breach of contract resulting from the company’s failure to defend and to indemnify. The trial court dismissed the complaint for failure to state a cause of action.

The policy provided coverage for “[a]ny act, error or omission in Professional Services provided or that should have been provided.” The policy defined professional services as:

services performed by an Insured lawyer: (a) in a lawyer-client relationship on behalf of one or more clients; (b) as a notary public; (c) as an administrator, conservator, receiver, executor, guardian, trustee, or any other similar fiduciary capacity; (d) as an arbitrator, mediator, referee, special master, hearing officer, or other participant in a dispute resolution process; (e) as a title agent. “Professional Services” does not mean or include any matter pertaining to an insured lawyer’s charges for services or expenses.

An exclusion in the policy stated that the insurance did not apply to:

5. Any Claim made against an Insured by a present, former or prospective partner, officer, director, stockholder or employee unless the Claim arises out of legal services’ performed in a lawyer-client relationship.

The construction of an insurance policy to identify the scope of coverage is a question of law subject to de novo review on appeal. See Jones v. Utica Mut Ins. Co., 463 So.2d 1153, 1157 (Fla.1985); Siegle v. Progressive Consumers Ins. Co., 788 So.2d 355, 357 (Fla. 4th DCA 2001). The scope and extent of insurance coverage is defined by the language and terms of the policy. See Siegle, 788 So.2d at 359. In construing an insurance policy, the court should read the policy as a whole, giving every provision its full meaning and operative effect. See Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000). Any ambiguities in an insurance policy are to be interpreted liberally and in favor of the insured and strictly against the insurer. See Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla.2002); Anderson, 756 So.2d at 34; McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So.2d 692, 694-95 (Fla. 4th DCA 1999). A policy is ambiguous when the language is subject to “more than one reasonable interpretation, one providing coverage and the [sic] another limiting coverage.... ” Anderson, 756 So.2d at 34.

Appellants contend that there was coverage under the policy because the third amended complaint alleged that Roberts breached his “fiduciary” duty to the law firm and that he was acting in an “administrative” capacity for the law firm when he did so. They argue that such breaches fell within the policy’s definition of “professional services.” We hold that the partners’ dispute over how to divide money received from a lawsuit was not an “act, error or omission in Professional Services provided” within the meaning of the policy.

The policy covers “professional services” that the insured lawyer has “provided.” “Provide” is a transitive verb meaning to “furnish, supply, or equip.” Random House Dictionaey of the English Language 1157 (unabridged ed.1967). We construe “provide” as meaning that the professional services defined in the policy are ones that are provided to or performed on behalf of third parties, the consumers of professional services. This construction is consistent with the list of services quoted above. The words “administrator” and “fiduciary” take their meaning from the other terms in the definition — “lawyer-client relationship,” “notary public,” “conservator,” “receiver,” “executor,” “guardian,” and “trustee.” All are types of work lawyers perform for others. “Fiduciary” is modified by “similar,” signifying that the policy’s use of the term is in the same sense as the terms that immediately preceded it in subparagraph (c).

Also, the policy definition of professional services excludes “any matter pertaining to an insured lawyer’s charges for services or expenses.” How the law firm was to diwy up fees and expense payments received “pertained” to the firm’s “charges for services or expenses” within the meaning of the policy.

This interpretation is reinforced by the policy exclusion for claims made against the law firm by “a present, former, or prospective partner.” Appellants contend that this exclusion “provides coverage for legal disputes between partners and former partners when such disputes ‘arise out of legal services performed in a lawyer-client relationship,’ ... [which] is the case here, where Sojka, on behalf of the Firm, sued Roberts for a breach of fiduciary duty ‘arising out of the performance of a ‘legal service’ — the settlement of the Witt case.” Such a reading of the exclusion is plainly unreasonable. An unreasonable reading of an insurance policy provision does not create an ambiguity that must be construed most favorably to the insured. If read as broadly as appellants desire, the exclusion would subsume portions of the policy defining the scope of coverage.

Two cases upon which appellants primarily rely are distinguishable. In Continental Casualty Co. v. Cole, 809 F.2d 891 (D.C.Cir.1987), a lawyer retained another law firm on behalf of his client. The lawyer specified that the law firm could not settle the case without his consent and that he would share any attorney’s fees ultimately awarded. After the case was settled, the lawyer sued the law firm; two counts for breach of contract alleged that the law firm “had breached its agreement with [the lawyer] by failing to obtain his consent to the proposed settlement ... and by refusing to share with him the attorneys’ fees that it had received” in the case. Id. at 895. The circuit court found that the “heart” of the lawyer’s obligations was that the law firm breached its contract with him. Id. at 896. The court held that this claim fell within the coverage language of the policy that damages arise from “the performance of professional services for others in the insured’s capacity as a lawyer;” the lawyer was an “other” under the policy for whom professional services had been performed. Id. The court also held that the settlement of the client’s ease was the performance of “professional services” services under the policy. Id.

Unlike the lawyer in Continental Casualty, Sojka was not a consumer of her law firm’s services. She did not negotiate a contract with the firm as the agent of a client. There was no allegation in Sojka’s third amended complaint that Roberts had improperly settled the “Witt” case. The conduct ascribed to Roberts in Sojka’s lawsuit is the type of conduct that Continental Casualty describes as not involving the performance of professional services — “the relationship between a law firm and its employees.” Id. at 896.

In Lyons v. American Home Assurance Co., 354 N.W.2d 892 (Minn.App.1985), a law firm sued a former partner contending that he had improperly settled a case by taking too low a fee from the client. The Minnesota court held that this lawsuit was covered under a professional liability policy providing coverage for claims “arising out of any act or omission of the insured in rendering ... professional services for others in the insured’s capacity as a lawyer.” Id. at 894.' The court found it significant that the case “arose not over allocation of fees among partners” but over the amount the lawyer “had charged for his services in representing his client.” Id. at 895. Lyons is therefore unlike this case, where the dispute concerned the division of fees. Also, there is no indication that the policy applied in Lyons defined “professional services” as did the policy in this ease.

Because the third amended complaint did not allege facts that created potential coverage under the policy, Florida Lawyers had no duty to defend appellants under the policy. See, e.g., State Farm Fire & Cas. Co. v. Higgins, 788 So.2d 992, 995 (Fla. 4th DCA 2001).

AFFIRMED.

MAY, J., and DAMOORGIAN, DORIAN, Associate Judge, concur.


author: WARNER, J.

text:
    Nakia THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-482.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges the trial court’s order denying him postconviction relief where his counsel conceded his guilt of the charged offense in both opening and closing statements. We conclude that counsel did no more than admit appellant’s conduct to which he himself testified. Therefore, we affirm the court order denying relief.

Appellant was convicted of lewd and lascivious or indecent act upon a child for having sexual intercourse, at age eighteen, with his thirteen year old girlfriend. His taped confession to the investigating officer was played at trial, and he testified in his own defense, against the advice of counsel, that he committed the lewd and lascivious act. During opening statement his counsel told the jury:

The defense will show simply by way of cross examination primarily that these two people did, in fact, have sex. The question is, and the jury has to decide, and we think the evidence will show that it is of such that you should find him guilty, but I think that after you’ve heard the evidence, you will not.

In closing, counsel again admitted the evidence showed appellant had sexual intercourse with a minor but suggested to the jury that this was not the type of act which the legislature intended to punish as a crime. Counsel asked the jury to find appellant not guilty. On appeal, this court affirmed appellant’s conviction without prejudice to appellant raising the issue of consent to the attorney’s admission of guilt in postconviction proceedings where the tactical decision and communications of the attorney with her client could be explored. See Thompson v. State, 731 So.2d 168, 168 (Fla. 4th DCA 1999).

Appellant filed a motion for postconviction relief alleging counsel was ineffective for conceding his guilt in both opening and closing statements, and other grounds of ineffectiveness not raised in this appeal. After an evidentiary hearing, the trial court concluded that while the attorney, who was dealing with overwhelming evidence of her client’s conduct, admitted the defendant had sex with the victim, she did not admit his guilt. In both her opening and closing arguments, the attorney argued appellant’s conduct was not a crime and asked the jury to find him not guilty.

Appellant contends that this case is controlled by Nixon v. Singletary, 758 So.2d 618, 624-25 (Fla.2000), in which the court held that because counsel’s concession of defendant’s guilt to the charged offense to the jury is the functional equivalent of a guilty plea, a defendant must affirmatively and explicitly accept counsel’s strategy before making such argument. The court further determined that in such cases, counsel’s conduct amounts to per se ineffective assistance of counsel, and prejudice will be presumed. See id.; see also United States v. Cronic, 466 U.S. 648, 660-63, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

In Nixon, however, trial counsel told the jury in closing argument that “the [sjtate has proved beyond a reasonable doubt each and every element of the crimes charged, first-degree premeditated murder, kidnaping, robbery, and arson.” 758 So.2d at 620. Moreover, Nixon had absented himself from the courtroom and did not testify at his trial. In contrast, having to counter his own client’s admission that he had sex with a thirteen year old girl, trial counsel admitted the sexual act but urged the jury to consider whether it was a crime and whether it was “wicked, lustful.” This argument specifically challenged the state’s proof. Unlike the lawyer in Nixon, appellant’s counsel never told the jury the state had proven, beyond a reasonable doubt, all the elements of the crime, and she requested a verdict of not guilty.

The Nixon court quoted Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), in which the Supreme Court stated, “a plea of guilty is more than a confession ..it is itself a conviction.” 758 So.2d at 624 (emphasis added). Here, the trial attorney did no more than admit the conduct to which her client testified and confessed. This was not tantamount to a plea of guilty. Therefore, Nixon is distinguishable.

We agree with the trial court that counsel’s conduct did not amount to ineffective assistance of counsel. We therefore affirm the order denying postconviction relief.

AFFIRMED.

FARMER and KLEIN, JJ., concur.


author: SHARP, W., J.

text:
    STATE of Florida, Appellant, v. Fred MANNING, Appellee.
    No. 5D02-951.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellee.
   SHARP, W., J.

The trial court granted, in part, Manning’s motion for post-conviction relief, vacated his 229 month (19+ years) habitual offender and prison releasee reoffender sentence and resentenced him to fifteen years as a prison releasee reoffender. The state appeals, arguing the original 229 month habitual offender sentence should be reinstated with a fifteen year mandatory minimum attributed to Manning’s prison releasee reoffender status. We agree.

Manning pled no contest to two criminal offenses: robbery in case No. OF97-2414 and manslaughter in Case No. CF97-2689. Both are second degree felonies punishable by up to fifteen years incarceration, unless the sentencing guidelines or some enhancement statute authorizes a greater sentence. §§ 812.13; 782.07; 775.082, Fla. Stat. Both sentences were to run concurrent with one another. Manning was declared to be an habitual offender and a prison releasee reoffender and sentenced to 229 months in prison in both capacities, in both cases. He appealed and his judgments and sentences were affirmed. See Manning v. State, 741 So.2d 509 (Fla. 5th DCA 1999).

Manning then filed his motion for post-conviction relief, asserting two grounds of ineffective assistance of counsel: (1) counsel should have objected and moved to withdraw his plea because he did not agree to a prison releasee reoffender sentence; and (2) he was coerced by defense counsel at the sentencing hearing into not withdrawing his plea by being told he could get consecutive prison sentences if he went to trial.

Before addressing the merits of Manning’s motion, the trial court determined that dual sentences under the habitual offender and prison releasee reoffender statutes were prohibited, relying on Lewis v. State, 751 So.2d 106 (Fla. 5th DCA 1999). The court ruled Manning was entitled to have the prison releasee reoffender conditions of his sentences struck and only the habitual offender sentences imposed.

Since the court determined Manning was entitled to have the prison releasee reoffender sentences vacated, the court did not address the first ground of Manning’s motion for post-conviction relief — that counsel should have objected and moved to withdraw his plea because he did not agree to a prison releasee reoffender sentence. The court found no merit to the second ground, the claim that Manning was coerced by defense counsel into not withdrawing his plea, and attached the portion of the transcript of the sentencing hearing which conclusively refutes this claim.

Although Manning’s motion for post-conviction relief and the order on post-conviction relief referred to both case numbers, the re-sentencing hearing referenced only the manslaughter case. At this hearing, the state pointed out that Manning had been sentenced to 229 months, which exceeded the guidelines and the fifteen year prison releasee reoffender sentence. The state argued the fifteen year prison releasee reoffender sentence would simply act as a “floor” and so the court could sentence Manning to both the habitual offender and prison releasee reoffender sentences. The court believed Manning could not be designated as both an habitual felon and a prison releasee reoffender and that it had no discretion not to sentence a defendant as a prison releasee reoffender if the state so requests. Since the state had requested prison releasee reoffender status, the court re-sentenced Manning solely to a 15-year term as a prison releas-ee reoffender.

In Grant v. State, 770 So.2d 655 (Fla.2000), the Florida Supreme Court held that concurrent sentences as a prison re-leasee reoffender and as an habitual felony offender for the same offense do not violate double jeopardy principles. However, unless the habitual felony offender sentence is greater than the prison releasee offender sentence, section 775.082(8)(c) prevents such a dual sentencing scheme.

In Kimbrough v. State, 776 So.2d 1055 (Fla. 5th DCA 2001), this court held that pursuant to Grant, a defendant can receive a prison releasee reoffender sentence and an habitual offender sentence for a single offense, so long as the habitual offender sentence results in a greater sentence. In such a case, the prison releasee reoffender sentence has the effect of a minimum mandatory condition of the defendant’s sentence under the habitual offender act. Rather than vacating the habitual offender sentence in this case, the trial judge should have corrected the sentence to reflect that the 15 year prison releasee sentence acts as a minimum mandatory condition of Manning’s 19+ year habitual offender sentence. Kimbrough. See also Williams v. State, 804 So.2d 572 (Fla. 5th DCA), cause dismissed, SC02-601 (Fla. Oct. 8, 2002).

Accordingly, we reverse and remand with instructions to reinstate Manning’s 229 month habitual felony offender sentence and to reflect that the 15-year prison releasee reoffender sentence, shall run concurrently with the greater sentence. On remand, the court should make the same correction to the robbery case, if has not done so. Also on remand, the trial court should rule on the first ground of Manning’s motion for post-conviction relief relating to both cases by either holding a hearing, or attaching a part of the record to demonstrate his claim has no validity.

REVERSED and REMANDED.

GRIFFIN and ORFINGER, JJ., concur.

      . See, e.g., Barnhill v. State, 828 So.2d 405 (Fla. 5th DCA 2002) (defendant was entitled to an evidentiary hearing where he alleged counsel did not inform him that reoffender sentencing required him to serve his entire sentence without the benefit of receiving gain time),


text:
    Anthony BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4546.
    District Court of Appeal of Florida, First District.
    March 7, 2008.

      Appellant Anthony Baker, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach portions of the record conclusively refuting the appellant’s claim that counsel was ineffective for failing to interview and call alibi witnesses, we reverse.

The appellant was convicted by a jury of three counts of armed robbery and was sentenced to three concurrent terms of nine years’ imprisonment. In order to assert a facially sufficient claim that counsel was ineffective for failing to call an alibi witness, the appellant must identify the witness, the content of the witness’s expected testimony, and assert how he is prejudiced by the omission of the witness’s testimony. State v. Pelham, 737 So.2d 572, 573 (Fla. 1st DCA 1999). In the instant case, the appellant identified both Dorothy Austin and Joseph Davis as potential alibi witnesses. The appellant alleged that both of these witnesses would have testified that he was somewhere else when the robberies took place. The appellant alleged that he was prejudiced by the omission of this testimony because the testimony would have supported his defense that he was not the person that committed the robberies.

The only record portion the trial court attached was a notice of alibi filed by the appellant’s counsel. However, this notice does not contain either Ms. Austin’s or Mr. Davis’s name and it does not explain why they were not called as witnesses. Because the trial court’s attachments do not conclusively refute the appellant’s claim, we reverse the summary denial of the appellant’s claim that his counsel was ineffective for failing to interview and call alibi witnesses, and remand for the trial court to either support its summary denial with record excerpts conclusively establishing that the appellant is entitled to no relief or to conduct an evidentiary hearing on the claim.

REVERSED and REMANDED.

ERVIN, KAHN, and PADOVANO, JJ., concur.


author: HAWKES, J.

text:
    Anthony B. BOND, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0518.
    District Court of Appeal of Florida, First District.
    March 7, 2003.
    Nancy A. Daniels, Public Defender and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and James W. Rogers, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

Appellant appeals an order revoking his probation. We affirm the revocation, notwithstanding a jury’s acquittal of Appellant on the offense constituting the probation violation. Because differing standards are applicable, “[a]cquittal on the substantive offense is not a collateral estoppel bar to revocation of probation on the same offense.” Bones v. State, 764 So.2d 888 (Fla. 4th DCA 2000), citing Russ v. State, 313 So.2d 758 (Fla.1975). However, the trial court’s order indicates it revoked Appellant’s probation for possession of a firearm, and for “new law violations.” The affidavits of violation of probation allege three new law violations: armed burglary of an occupied dwelling; shooting into an occupied dwelling; and trespassing and petit theft. While the record contains sufficient evidence to support revocation for possession of a firearm, trespassing and petit theft, there is no evidence that the dwellings were occupied. Accordingly, we affirm the revocation of probation, but remand for the trial court to correct its written order to reflect which specific new law violations resulted in the revocation. See id.; Gamble v. State, 737 So.2d 1160 (Fla. 1st DCA 1999).

C.J. ALLEN and BENTON, J., concur.


text:
    Victor WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1591.
    District Court of Appeal of Florida, First District.
    March 7, 2003.

      Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Phillip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the briefs, we agree that no reversible error occurred. We therefore affirm the appellant’s revocation of probation and imposition of the judgment and sentence. Because the record does not contain a written order of revocation of probation, we remand for the trial court to enter such an order, consistent with its oral pronouncement. See Walker v. State, 686 So.2d 758 (Fla. 1st DCA 1997). The appellant need not be present.

AFFIRMED.

ERVIN, KAHN and PADOVANO, JJ., concur.


author: BROWNING, J.

text:
    Eric LANE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1765.
    District Court of Appeal of Florida, First District.
    March 10, 2003.

      Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

This is an appeal from the denial of a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We agree with two of Appellant’s three claims, reverse the trial court’s order as to those claims, and remand for attachment of portions of the record which conclusively refute Appellant’s claims or for an evidentiary hearing.

Appellant pled nolo contendere to driving under the influence with serious bodily injury, in exchange for his sentence of 36 months of incarceration followed by two years of probation. Thereafter, Appellant filed a timely rule 3.850 motion alleging three grounds for relief: (1) that his plea was involuntary because he was not informed of the statutory maximum of his crime; (2) that his counsel was ineffective for failing to withdraw Appellant’s plea despite Appellant’s request; and (3) that his counsel was ineffective for failing to file a direct appeal. We affirm the third issue without further comment. However, we hold that Appellant’s first and second claims are facially sufficient and should not have been summarily denied.

As to the first claim, a plea is involuntary if a defendant pleads to a crime when he is unaware of the maximum penalty of such crime. Ford v. State, 433 So.2d 1335 (Fla. 2d DCA 1983); Fla. R.Crim. P. 3.172(c)(1)- Appellant alleged that neither the trial court nor his counsel informed him of the statutory maximum of the crime, and that his counsel affirmatively misadvised him that his sentence would have a cap of 51 months. Appellant also alleged that he would not have pled “had counsel or the court ... advised him of the maximum penalties he could receive.” These allegations are not refuted by the record, which reveals that Appellant pled in exchange for a sentence of 36 months followed by two years of probation, that no written plea was executed, and that the trial court informed Appellant that, under the plea, “the most you can get is thirty-six months followed by two years of probation.” These facts do not demonstrate that Appellant knew that the statutory maximum for his offense was five years, or 60 months, of incarceration. See §§ 316.193(3)(c)(2), 775.082(3)(d), Fla. Stat. (2000). Thus, Appellant has stated a facially sufficient claim that his plea was involuntary.

As to the second claim, Appellant has stated a facially sufficient claim of ineffective assistance as to counsel’s failure to file a motion to withdraw the plea. Appellant’s allegation that his plea was involuntary is facially sufficient, and if the plea was, indeed, involuntary, counsel would be ineffective for failing to file a motion to withdraw the plea. Thus, unless the trial court can provide on remand portions of the record that conclusively refute Appellant’s allegations, the trial court must determine at an evidentiary hearing whether Appellant’s plea was involuntary and, if so, whether counsel failed to inform Appellant of his right to file a motion to withdraw the plea and whether Appellant would have exercised that right. See Jackson v. State, 801 So.2d 1024, 1026 (Fla. 5th DCA 2001).

We additionally note that the state, in responding to this Court’s order to show cause why the order should not be reversed, conceded that a remand for attachments or an evidentiary hearing is necessary. Accordingly, we REVERSE and REMAND as to the Appellant’s first and second claims, and AFFIRM as to the third claim.

ERVIN and BOOTH, JJ., CONCUR.


text:
    HYPOWER, INC., Appellant, v. The STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 1D01-4928.
    District Court of Appeal of Florida, First District.
    March 10, 2003.
    Mike Piscitelli and Bradley S. Copen-haver of Vezina, Lawrence & Piscitelli, P.A., Ft. Lauderdale, for Appellant.

      Pamela S. Leslie, General Counsel; and Marianne A. Trussell, Deputy General Counsel, Tallahassee, for Appellee.
   BROWNING, J.

Appellant, Hypower, Incorporated (Hy-power), challenges the denial of its request for arbitration of its dispute with the Florida Department of Transportation (FDOT) by the State Arbitration Board (Board). We reverse and remand for further proceedings.

Hypower was awarded contract number 19583 with the FDOT, for work on signalization systems in Broward County. The FDOT later sent Hypower a qualified letter of acceptance, stating in part that any pending arbitration claim or suit on contracts numbered 18520 and greater must be commenced within two years and four months of the final acceptance of the work. Hypower executed the qualified letter of acceptance. The FDOT took final acceptance of Hypower’s work on May 6, 1999.

Hypower later sought arbitration to recover extended performance costs. Hy-power filed its arbitration request with the Board on September 5, 2001, exactly two years and four months, or 853 days, after the final acceptance. The Board declined the request, reasoning that the request was submitted more than 820 days after the final acceptance of the work. Hypower appealed. We hold that Hypower’s request was timely.

The FDOT argues that the 820-day period within which to file an arbitration request, set forth in section 337.19, Florida Statutes, is a limited waiver of sovereign immunity. However, section 337.19 is not applicable to the instant case, because it relates only to lawsuits and is completely unrelated to section 337.185, Florida Statutes, which sets forth the entire arbitration scheme and establishes the Board. Although there is a waiver of sovereign immunity in the instant case, it is not limited. Sovereign immunity is waived in the contracts context, not by statute, but by the fact of the contract itself. See Pan-Am Tobacco Corp. v. Dep’t of Corrections, 471 So.2d 4 (Fla.1985). Any subsequent time limit on filings is a limitations period.

The applicable version of section 337.185 does not set forth a time period within which to file arbitration requests. The statute was amended in 2002 to add an 820-day limitations period. Ch.2002-20, § 13, at 504-05, Laws of Fla. Accordingly, Appellee argues that this amendment, described by the legislature as a clarification, mandates an affirmance, but we disagree.

The original statute was first enacted in 1969, as section 337.32, Florida Statutes. Ch. 69-351, § 1, at 1230, Laws of Fla. In view of the great lapse of time since such statute’s enactment, a clarification such as Appellee maintains is without merit and cannot be judicially sanctioned. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55 (Fla.1995). Furthermore, the application of such clarification would imper-missibly impair Appellant’s vested rights and cannot be allowed. See id.

Because the version of section 337.185 applicable here contains no limitations period governing arbitration, the arbitration request must be made only within a reasonable time. See Stoudenmire v. Florida Loan Co., 117 So.2d 500 (Fla. 1st DCA 1960); Gissendanner v. Manchester Ins. Co., 307 So.2d 876 (Fla. 3d DCA 1975). Here, the parties’ contract provided for a 820-day arbitration filing period. However, the qualified acceptance letter from the FDOT to Hypower extended that limitations period to 853 days. See Hankey v. Yarian, 755 So.2d 93, 97 (Fla.2000) (noting that parties can agree to extend a limitations period). Thus, Hypower’s arbitration request was timely.

Accordingly, we REVERSE the Board’s denial of the request as untimely, and REMAND for further proceedings.

DAVIS and POLSTON, JJ., concur.


author: BENTON, J.

text:
    Anthony K. STEPHENS, Appellant, v. BAY MEDICAL CENTER, Gulf Pines Hospital, Inc., David Webb, M.D., Frederick B. Epstein, M.D., Kevin Morrissey, M.D., Bay Emergency Physician Specialists, Inc., and John Doe, Appellees.
    No. 1D01-1099.
    District Court of Appeal of Florida, First District.
    March 10, 2003.
    Paul D. Mark Lucas, Esquire of Gary, Williams, Parenti, Finney, Lewis, Mc-Manus & Sparando, Stuart, and Thomas J. Brown, Esquire and Hubert R. Brown, Esquire of Brown and Brown Attorneys at Law, P.A., Tallahassee, for Appellant.
    Harvey L. Jay, III, Esquire and Brett Q. Lucas, Esquire of Saalfield, Coulson, Shad & Jay, P.A., Jacksonville, for Appel-lees, Frederick Epstein, M.D. and Bay Emergency Physician Specialists, Inc.
   BENTON, J.

After the plaintiff had rested, the defense renewed its motion for summary dismissal on grounds of fraud, alleging that the plaintiff had lied under oath. The trial court, which had denied the original motion before the trial began, initially took the renewed motion under advisement, and the case went to the jury, which returned a verdict for the defendants. Then, rather than enter judgment on the verdict, the trial court entered judgment solely “PURSUANT to the Court’s Order dismissing Plaintiffs case for fraud upon the Court.”

The trial court ruled that the plaintiffs “conscious scheme ... to enhance the value of his case by misrepresenting his physical limitations under oath” constituted a fraud on the court. It reached this conclusion on the basis of the evidence adduced at the trial, and at the earlier hearing on defendant’s motion to dismiss for fraud. The court denied plaintiffs repeated requests for a new, separate evidentiary hearing.

The failure to allow plaintiff an opportunity to present additional evidence was error. See Furst v. Blackman, 744 So.2d 1222, 1224-25 (Fla. 4th DCA 1999). Accordingly, we reverse and remand for further proceedings. On remand the trial court may simply enter judgment on the verdict. If the trial court concludes sanctions are appropriate, the parties are entitled to put on additional evidence, after proper notice, prior to sanctions being imposed. In the event of such an evidentiary hearing, the trial court may consider all matters of record along with any evidence adduced at the additional hearing.

Reversed and remanded.

ALLEN, C.J., and HAWKES, J., CONCUR.


text:
    Randy MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2502.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2003.
    Randy Montgomery, Wewahitchka, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Russo v. Akers, 724 So.2d 1151 (Fla.1998).

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


author: STRINGER, Judge.

text:
    Oscar HANSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3665.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.

      Kevin A. Fuller of Law Offices of Kevin A. Fuller, Bayonet Point, for Appellant.
   STRINGER, Judge.

Oscar Hanson challenges the order of the trial court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

In his motion, Hanson alleged that his pleas were involuntary because trial counsel affirmatively misadvised him that the convictions could not be used in the future as prior offenses for sentencing purposes. In Stansel v. State, 825 So.2d 1007 (Fla. 2d DCA 2002), we held that this claim is not cognizable in a rule 3.850 motion. We certify the same question that we certified in Stansel.

Affirmed.

NORTHCUTT and SALCINES, JJ., Concur.


author: WHATLEY, Judge.

text:
    Jacquelyn POSTMA, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3903.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.
    James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

Jacquelyn Postma appeals her conviction and sentence for second-degree murder. We affirm her conviction without discussion, but we remand for the trial court to strike the language in Postma’s sentence indicating that she is ineligible for parole.

Upon Postma’s motion to correct sentencing error, the trial court entered an order striking the language from the written judgment and sentence that Postma was ineligible for parole. However, it appears from the record before us that such language was never stricken from the written judgment and sentence. We therefore remand this case for the trial court to strike such language from Postma’s sentence if it has not already done so.

Conviction and sentence affirmed; remanded for trial court to strike parole ineligibility language from sentence.

SILBERMAN and KELLY, JJ., Concur.


author: SILBERMAN, Judge.

text:
    John PICKETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-459.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

John Pickett appeals his conviction for grand theft, arguing that the State did not establish the fair market value of the stolen property. We agree and reverse for entry of a conviction and sentence for petit theft.

In Juné 2000 the Price Street Church of God was burglarized. Two speakers, a stereo receiver, two microphones, and a microphone stand were taken. Pickett was arrested and charged with burglary of a structure, grand theft in the third degree (based on a property value of $300 or more), and dealing in stolen property. Following a jury trial, Pickett was convicted of the burglary and grand theft charges. He was sentenced as a habitual felony offender to ten years’ imprisonment for the burglary and five years’ imprisonment for the grand theft.

At trial, the State established that an amplifier, two speakers, and two microphones had been stolen. The amplifier had been purchased as a used piece of equipment three or four years before the theft for $369. The speakers were purchased two years before the theft for about $220. The microphones were purchased for $70.

To establish grand theft of the third degree, the State was required to prove that the value of the stolen property at the time of the theft was $300 or more. See § 812.014(2)(c), Fla. Stat. (2000); Toler v. State, 779 So.2d 594, 595 (Fla. 2d DCA 2001). Value may be established by direct testimony of fair market value or through evidence of the original market cost of the property, the manner in which the items were used, the condition and quality of the items, and the percentage of depreciation of the items since their purchase. Negron v. State, 306 So.2d 104, 108 (Fla.1974), receded from on other grounds, Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); see Korica v. State, 791 So.2d 543, 544 (Fla. 2d DCA 2001) (recognizing the Neg-ron factors to establish fair market value for restitution purposes). Testimony solely as to the cost of the property is insufficient to establish value at the time of the theft. Negron, 306 So.2d at 108; Vinson v. State, 300 So.2d 714, 715 (Fla. 2d DCA 1974).

Because the State only established the purchase price for the items and there was no evidence establishing their value at the time of the theft, we reverse the conviction and sentence for grand theft and remand for entry of a conviction and sentence for petit theft of the second degree. See § 812.014(3)(a). We affirm without comment the conviction and sentence for burglary.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KELLY, JJ., Concur.

      . The State eventually dropped the charge of dealing in stolen property.