author: THOMPSON, J.

text:
    Vernell HOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2525.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.

      James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

Vernell Holden appeals an order denying his motion to suppress cocaine and drug paraphernalia. We affirm.

At the suppression hearing, a police officer testified that Holden and a female were sitting in a vehicle that looked suspicious because the vehicle was backed into a space on the far side of a store. After approximately 30 minutes, another car arrived, and Holden and the female entered the second vehicle and left. The second vehicle returned approximately 15 minutes later. When the second vehicle returned, three police officers approached and questioned the occupants. Unbeknownst to the occupants, the officers requested that a canine unit be dispatched to the scene. When the dog arrived, it signaled the presence of narcotics in the car, and the officers found a small pill bottle containing two pieces of crack cocaine and burnt copper wire. Upon finding the narcotics and paraphernalia, Holden told the officers that the narcotics and paraphernalia belonged to him.

Holden testified that he was at the convenience store with the female because she and her boyfriend had a fight, and he was attempting to find her a place to stay with another female he knew who lived in Holo-paw. Holden called the other female at the pay phone at the store, and then waited for the other female to arrive. Holden denied that they were backed in a parking space. Holden stated that once the female from Holopaw arrived, he and the two females left in the other car, traveled to Holopaw, and decided to return to the store to purchase beer. Holden testified that as soon as they arrived at the store, officers exited their vehicles, ordered Holden and the two females out of their vehicle, and drew their weapons. Holden stated that two police vehicles blocked their car, and that he could not have freely left without hitting a police vehicle.

The trial court found the police officers’ testimony more credible than Holden’s testimony, and ruled that a consensual encounter occurred between Holden and the officers, and that once the canine unit alerted on the car, the officers had probable cause to search.

Holden contends that the trial court erred in denying his motion to suppress because the trial court ignored testimony from the state’s witness that demonstrated that Holden was detained. We disagree. A ruling on a motion to suppress is presumptively correct, and a reviewing court should interpret the evidence and reasonable inferences and deductions drawn from the evidence in a manner most favorable to sustaining the trial court ruling. Morris v. State, 749 So.2d 590 (Fla. 5th DCA 2000). Further, the role of the trial court is to weigh the credibility of witnesses and to resolve ev-identiary conflicts, and on truly discretionary matters, the appellate court must recognize the trial court’s “superior vantage point.” Porzio v. Porzio, 760 So.2d 1075, 1076 n. 1 (Fla. 5th DCA 2000).

Here, the trial court determined that the officers’ testimony was more credible than Holden’s testimony. This finding is supported by the evidence. There was testimony that the occupants voluntarily exited the car when the officers arrived, that the officers did not block the vehicle, and that the officers did not draw their weapons. There was no testimony that the officers used their overhead lights when approaching the vehicle. Furthermore, the officers testified that Holden and the occupants were free to leave at anytime. Compare Baker v. State, 754 So.2d 154 (Fla. 5th DCA 2000) (holding that defendant was detained where officer parked police car behind defendant’s vehicle and activated the blue lights and siren).

We disagree with Holden’s argument that the officers’ request for identification resulted in a detention. When officers have no basis for suspecting a particular individual, they may generally ask questions of that individual and ask to examine the individual’s identification. See Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). In Golphin v. State, 838 So.2d 705 (Fla. 5th DCA 2003), we held that a person is not seized when the person’s license is kept by police for a few minutes to make a warrants check, because the person would be free to withdraw his consent at any time by, for example, asking that his license immediately be returned, and the refusal to comply by police would certainly amount to a detention. Id. Finally, we conclude that the dispatch and use of the narcotics dog did not convert the encounter into a detention. Saturnino-Boudet v. State, 682 So.2d 188 (Fla. 3d DCA 1996), is instructive:

The United States Supreme Court has held that the use of a narcotics sniff dog constitutes neither a search nor a seizure within the meaning of the Fourth Amendment. Place, 462 U.S. at 707, 103 S.Ct. at 2644 — 45[, 77 L.Ed.2d 110]. Accordingly, this court has said:
[0]nce the defendant was legally stopped, the use of a sniff dog was not an unconstitutional search under the Fourth Amendment. A sniff dog’s “alert” can constitute probable cause to conduct a search. Once probable cause existed to search the vehicle, no warrant was needed to authorize the search. Just as no police officer need close his eyes to contraband in plain view, no police officer armed with a sniff dog need ignore the olfactory essence of illegality.

Id. at 193 (citations omitted) (emphasis supplied). In the instant case, the trial court found that the officers had a consensual encounter with Holden and the other occupants of the car. As Satumino-Boudet pointed out, the use of a canine’s sense of smell is similar to an officer’s use of his eyes. The use of a canine unit during a consensual encounter is similar to an officer’s finding illegal items in plain-view during a consensual encounter. See State v. Carley, 633 So.2d 533 (Fla. 2d DCA 1994) (reversing motion suppressing evidence where the officers and defendant were involved in a consensual encounter and a sawed-off shotgun was discovered in plain view).

The order denying Holden’s motion to suppress is AFFIRMED.

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


source: Caselaw Access Project

author: TORPY, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Michael John WEIL, Appellee.
    No. 5D03-3800.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellant.
    Russell E. Crawford, Orlando, for Ap-pellee.
   TORPY, J.

The issue we confront is whether the lower court erred in suppressing evidence seized from Appellee’s residence pursuant to a search warrant. Our resolution of this issue primarily turns on whether the search warrant application contained sufficient facts from which the issuing judge could reasonably infer that the items to be seized were probably in Appellee’s residence. Alternatively, even if the warrant was not sufficiently grounded in probable cause, we are asked to consider whether the “good faith” exception to the exclusionary rule applies to avoid suppression of the evidence. We conclude that the warrant was valid and, alternatively, that the “good faith” exception applies. We therefore reverse the lower court’s order that suppressed the evidence.

The police affidavit upon which the search warrant was based alleged that Ap-pellee had abducted and sexually battered the victim three days earlier. As outlined in the affidavit, initially, Appellee lured the victim from a public place by identifying himself as a police officer. He displayed a police badge. Once inside his vehicle, Ap-pellee handcuffed the victim and then took her to a building where he repeatedly sexually battered her at gunpoint. Appellee then allegedly drove the victim to another public place where he released her, at which time she contacted the police. Although the affidavit is devoid of facts describing how Appellee became a suspect, it states that the victim gave a sworn statement to police describing the events and identified Appellee from a photographic lineup.

The officers made application to search Appellee’s residence for evidence and instruments of the crime, including, but not limited to, shoes, a gun, handcuffs and a police badge. However, nothing in the affidavit provided direct proof that Appel-lee’s residence was the repository of these items. ■

The warrant issued and the subsequent search revealed, among other things, two guns, a badge, a handcuff case (without the handcuffs), and numerous articles of police apparel and equipment. Appellee was subsequently charged by Information with sexual battery with a deadly weapon, kidnapping with intent to inflict bodily harm or terrorize, and falsely personating a police officer during the commission of a felony. By pretrial motion, Appellee sought to suppress the fruits of the search of his premises.

The lower court granted Appellee’s Motion to Suppress, concluding that the warrant was defective because the affidavit failed to set forth a connection between the crime and the residence of Appellee. The lower court also concluded that the “good faith” exception to the exclusionary rule did not apply because the police should have known that the warrant was invalid. We have jurisdiction. Fla. R.Crim. P. 9.140(c)(1)(B).

We begin our analysis by discussion of the applicable standard of review. The lower court’s decision was based solely on a review of the affidavit. No evidence was introduced at the hearing on Appel-lee’s Motion to Suppress. Therefore, our review of the order suppressing the evidence is de novo. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). However, like the lower court, in reviewing the sufficiency of the warrant, we are obligated to afford “great deference” to the issuing judge’s determination that probable cause existed, provided that there existed a “substantial basis” for the issuing judge’s conclusion. United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Clearly, for a search warrant to be valid, it is not necessary that there exist direct proof that the objects of the search are located in the place to be searched. As Professor LaFave observes in his leading treatise on search and seizure:

[CJertainly, there are many instances in which, once the perpetrator of the crime has been identified, it will be permissible to infer that the instrumentalities and fruits of that crime are presently in that person’s residence.... That point emerges clearly in United States v. Jones, [994 F.2d 1051 (3d Cir.1993),] where three men wearing dark clothing and ski masks and carrying firearms robbed the operators of a check-cashing van of about $275,000. Investigation over the next two weeks identified the perpetrators, at which point search warrants were issued to search their residences for the money, clothing and guns. The district court, which suppressed the evidence found in execution of the warrants, emphasized the distinction between probable cause to arrest and probable cause to search. Although the court of appeals reversed, it also started with the premise that probable cause to arrest does not automatically provide probable cause to search the arrestee’s home. * * * However, accepting this premise does not mean that the information used to determine if there was probable cause to arrest is irrelevant when determining if there is probable cause to search. In fact, just the opposite is true. If there is probable cause to believe that someone committed a crime, then the likelihood that that person’s residence contains evidence of the crime increases.
The [Third Circuit] concluded that this likelihood was substantial enough in the [Jones'] case, as (i) “cash is the type of loot that criminals seek to hide in secure places like their homes,” and the intervening two weeks was “long enough to enable the defendants to hide the cash” and “not so long as to dispel the likelihood that it would still be in their residences”; and (ii) “the other items sought, clothing and firearms, are also the types of evidence likely to be kept in a suspect’s residence.”

2 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 3.1(b) (3rd ed.1986) (emphasis supplied) (footnote omitted). See also United States v. Jenkins, 901 F.2d 1075,1081 (11th Cir. 1990) (probable cause that security guard stole cash sufficient to justify search of his residence); United States v. Lockett, 674 F.2d 843, 846 (11th Cir.1982) (probable cause that defendant has committed theft sufficient to justify search of his residence); United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir.1977) (probable cause that defendant was counterfeiting sufficient to search residence for instruments of the crime); United States v. Rahn, 511 F.2d 290, 294 (10th Cir.1975) (probable cause that defendant stole guns sufficient to search residence); United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970) (nexus element of search warrant may be inferred from nature of items to be seized and other factors).

Here, Appellee makes no argument that police lacked probable cause to arrest him. Indeed, the affidavit clearly links him to the crime through direct evidence. When this evidence is considered in light of the nature of the crime and items to be seized and the fact that three days had elapsed since the crime occurred, we conclude that the issuing judge had a substantial basis for inferring that these items were probably at Appellee’s residence. In our view it makes no difference that the items sought were not the “fruits” of a crime. The inference that items such as shoes, a gun, handcuffs and a badge might be kept in a criminal’s residence is similarly (if not more) compelling. See, e.g., United States v. Jones, 994 F.2d 1051, 1056 (3d Cir.1993) (probable cause that defendant committed robbery supported issuance of warrant to search for suspect’s clothes); United States v. Anderson, 851 F.2d 727, 729 (4th Cir.1988) (probable cause that defendant committed murder sufficient to support warrant to search residence for gun used in murder); United States v. Steeves, 525 F.2d 33, 38 (8th Cir.1975) (people who own pistols usually keep them in their homes); Bastida v.Henderson, 487 F.2d 860, 863 (5th Cir. 1973) (likely place to find assailant’s gun is: on his person or in his residence).

Even assuming that a “substantial basis” for issuance of the warrant did not exist, however, we nevertheless conclude that the evidence should not have been suppressed. No evidence was adduced' to establish bad faith on the part of the police, nor can it be said that the police acted unreasonably in reliance on the warrant. Under these circumstances, the so-called “good faith” exception to the exclusionary rule clearly applies. Leon, 468 U.S. at 916-926,104 S.Ct. 3405.

REVERSED and REMANDED.

SAWAYA, CJ., and ORFINGER, J., concur.


author: SAWAYA, C.J.

text:
    J.J.N., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-675.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.

      James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Défencíer, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General,-Daytona Beach, for Ap-pellee.
   SAWAYA, C.J.

J.J.N., a minor, was charged with possession of cannabis. The trial resulted in a withheld adjudication of delinquency and a sentence of probation, forty hours of community service and a suspension of his driving privilege. J.J.N. appeals, claiming that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove that he had constructive possession of the cannabis. We agree and reverse.

J.J.N. and two other boys were standing in a group at a city bus stop. A school resource officer observed the three boys and saw one of them throw a cigarette to the ground and extinguish it with his foot. The officer confronted the three boys and asked J.J.N. if he could search his person. The officer found cigarettes in JJ.N.’s pocket and an extinguished cigarette on the ground near his foot. The officer also noticed a baggie on the ground near JJ.N.’s foot, which the officer suspected contained cannabis. A subsequent test of the substance in the baggie confirmed the officer’s suspicion. Although he denied that the suspected cannabis belonged to him, J.J.N. was taken into custody and transported to a location referred to as the “Ninth Grade Center.” J.J.N. testified that he and the officer were alone in a room at the Center and that the officer coerced J.J.N. into admitting that the cannabis was his.

During the trial, J.J.N. argued that his admission should be suppressed because he was not provided a Miranda warning at the time he was questioned and because the officer coerced him into making the admission. The trial court agreed and ruled that the admission would not be considered. After the State presented its evidence, J.J.N. requested that the trial court grant him a judgment of acquittal on the basis that the State failed to prove the element of possession. The trial court denied the request and hence this appeal.

In order to determine whether the trial court erred when it denied J.J.N.’s request for a directed verdict, we must apply the de novo standard of review. Johnston v. State, 863 So.2d 271 (Fla.2003), cert. denied, —U.S. -, 124 S.Ct. 1676, 158 L.Ed.2d 372 (2004); Pagan v. State, 830 So.2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); Sutton v. State, 834 So.2d 332 (Fla. 5th DCA 2003). We should refrain from reversing this conviction if it is supported by competent substantial evidence. Johnston; Pagan; Sutton. Sufficient evidence to sustain a conviction exists if, after viewing the evidence in the light most favorable to the State, we conclude that a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. Johnston; Pagan; Sutton.

“A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Orme v. State, 677 So.2d 258, 262 (Fla.1996) (quoting State v. Law, 559 So.2d 187 (Fla.1989)), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997). Although the state is not required to “ ‘rebut conclusively, every possible variation of events’ which could be inferred from the evidence,” it does have the burden to produce competent evidence that is inconsistent with the theory of events advanced by the defendant. Darling v. State, 808 So.2d 145, 156 (Fla.2002) (quoting Law, 559 So.2d at 189). Therefore, in cases where the evidence is entirely circumstantial, “not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of inno-eence.” Pagan, 880 So.2d at 803 (citation omitted).

In order to convict an individual of the offense of possession of cannabis, the state must prove that the defendant had actual or constructive possession of the contraband. See § 893.13(6)(a), Fla. Stat. (2002) (“It is unlawful for any person to be in actual or constructive possession of a controlled substance.... ”)• In the instant case, the defendant was not found in actual possession of the cannabis. Therefore, the State must show constructive possession of it in order to secure a conviction. See Davis v. State, 761 So.2d 1154, 1158 (Fla. 2d DCA 2000) (“Because the State’s evidence of actual possession ■ created nothing more.than a strong suspicion of Mr. Davis’s guilt, the State was forced to rely on a theory of constructive possession.”); State v. Wallace, 734 So.2d 1126 (Fla. 3d DCA 1999); see also Earle v. State, 745 So.2d 1087, 1088 (Fla. 4th DCA 1999) (“Where, as in this case, a defendant is not in actual possession of cocaine, the state must establish constructive possession.”). Cases of constructive possession of drugs are typically considered circumstantial evidence cases. See E.H.A. v. State, 760 So.2d 1117 (Fla. 4th DCA 2000); Wallace, 734 So.2d at 1129 (“Since the appellee was. not found to be in actual possession of the narcotics, the state had the burden of circumstantially establishing his constructive possession of the drugs.”); Isaac v. State, 730 So.2d 757 (Fla. 2d DCA 1999); Green v. State, 667 So.2d 208 (Fla. 2d DCA 1995). The instant case is no exception.

In order to prove, constructive possession, the State must prove that the accused had dominion and control over the contraband, that he had knowledge that the contraband was in his presence, and that he had knowledge of the illicit nature of the contraband. Brown v. State, 428 So.2d 250 (Fla.1983); Sierra v. State, 746 So.2d 1250 (Fla. 5th DCA 1999); Jordan v. State,, 548 So.2d 737 (Fla. ,4th DCA 1989); Corson v. State, 527 So.2d 928 (Fla. 5th DCA 1988). “Where the premises on which the contraband is found is not in the 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. Sierra. Mere proximity to contraband is not sufficient to establish constructive possession. Davis; Sierra; Dupree v. State, 705 So.2d 90 (Fla. 4th DCA 1998).

A case with facts similar to the instant case is King v. State, 817 So.2d 935 (Fla. 5th DCA 2002), wherein the defendant was arrested after a plastic baggie was located near his feet in the parking lot of an apartment complex. We held that the evidence was insufficient to demonstrate that King had dominion and control over the contraband or had knowledge of its presence. Specifically, we noted that no fingerprints were found on the baggy located near his feet, no drugs were discovered on his person, and no one saw King discard the bag. Like King, in the instant case, no one saw J.J.N. discard the baggie that was found near his feet and there is nothing in the record to indicate that his fingerprints were on it. We also noted that, as in the instant case, the cannabis was found in a public place when King was arrested and that more than mere proximity to the defendant must be shown to sustain a conviction.

Another notable case from this court is J.A.C. v. State, 816 So.2d 1228 (Fla. 5th DCA 2002), wherein a vehicle in which the defendant was a passenger, was stopped for a traffic violation. When the officer approached the vehicle, he observed marijuana smoke billow from the interior of the car as the driver rolled down the window and he smelled burned marijuana on the clothing of the defendant when he exited the vehicle. When the officer searched the car he found a burnt marijuana cigarette in the ashtray next to the passenger seat where the defendant was sitting. This court held that the evidence produced by the state was not inconsistent with the theory of innocence presented by the defendant which was that the burnt marijuana cigarette belonged to the driver and he did not know it was in the ashtray. This court reversed the defendant’s conviction for possession of marijuana. With facts far less egregious in the instant case, we can do no less.

We conclude that the State has failed to present evidence from which the trier of fact could exclude every reasonable hypothesis except that of guilt and has failed to meet its burden to produce competent evidence that is inconsistent with the theory of events advanced by J.J.N., which is that the cannabis was not his. Even if we did not apply the circumstantial evidence standard, we would hold that after viewing the evidence in the light most favorable to the State, a rational trier of fact could not find the existence of the elements of the crime of possession of cannabis beyond a reasonable doubt.

REVERSED.

GRIFFIN and MONACO, JJ, concur.

      . We note that J.J.N. made an admission at the Center and that evidence of an inculpato-ry statement is direct, not circumstantial, evidence. See Jorge v. State, 861 So.2d 1279, 1280 (Fla. 3d DCA 2003). We also note that where both direct and circumstantial evidence are admitted to prove guilt, the circumstantial evidence standard does not apply. But the trial court held that the statement was inadmissible and would not be considered. Therefore, without the inculpatory statement, the circumstantial evidence standard remains applicable to the instant case.

      . The Legislature enacted section 893.101, Florida Statutes (2002), to eliminate the element of knowledge of the illicit nature of the drugs for offenses charged under Chapter 893. The statute provides in pertinent part that "knowledge of the illicit nature of a controlled substance is not an element” of drug offenses, but lack of such knowledge "is an affirmative defense.” § 893.101(2), Fla. Stat. (2002). Because the offense in the instant case occurred on March 14, 2002, and the statute became effective on May 13, 2002, the statute is inapplicable. See Ch.2002-258, § 1, at 1848, Laws of Fla. We come to this conclusion based on numerous decisions that hold the statute may not be applied retroactively. See Jones v. State, 857 So.2d 969 (Fla. 2d DCA 2003); Garcia v. State, 854 So.2d 758 (Fla. 2d DCA 2003); Thomas v. State, 844 So.2d 723, 725 (Fla. 5th DCA 2003); 'Blunt v. State, 831 So.2d 770, 772 (Fla. 4th DCA 2002). Hence, for offenses that occur after the effective date of section .893.101, knowledge of the illicit nature of the drugs will not be an element in constructive possession cases. Rather, the defendant who commits a drug offense after May 13, 2002, may only raise lack of knowledge as .an affirmative defense. .


author: ORFINGER, J.

text:
    ORANGE COUNTY, Florida, Petitioner, v. Shirley J. BUTLER, Respondent.
    No. 5D04-773.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.

      Thomas B. Drage, Jr., County Attorney, and Vivien J. Monaco, Assistant County Attorney, Orange County Attorney’s Office, Orlando, for Petitioner.
    Charlie S. Martin of McLeod, McLeod & McLeod, P.A., Apopka, for Respondent.
   ORFINGER, J.

■ Orange County, Florida, seeks certiorari review of a circuit court order granting Shirley J. Butler’s petition for writ of cer-tiorari. The circuit court’s order quashed a decision of the Orange County Board of Commissioners (Board), which found that Butler’s property was in violation of the Orange County Zoning Code, and ordered her to correct the violation. We grant the petition and issue the writ.

This dispute began when the Orange County Code Enforcement Board (CEB) found Butler in violation of sections 38-3 and 38-77 of the Orange County Code (Code), concluding that “creating a junkyard, extensive auto repairs and open/outside storage of junk, auto parts, trash, debris, and tires is not permitted in resi-dentially zoned areas,” and requiring her to undertake remediation. In an effort to comply with the CEB order, Butler filed an application for a non-conforming land use, claiming that her property had been utilized “as a hobby shop since 1953 for the purpose of repairing race car vehicles owned by [Butlerls], husband and five sons.” Orange County’s zoning manager denied Butler’s request for a non-conforming use, determining that there was insufficient evidence that the property had been continuously used for racing activities and that the dominant use of the property was for the storage of junk.

Butler appealed the zoning manager’s determination to the Orange County Board of Zoning Adjustment (BZA). After a public hearing, the BZA upheld the zoning manager’s determination that Butler’s property was in violation of Code section 38-77 because the “outdoor/open storage of junk, tires, automobile parts, debris, and other similar waste materials is not a legal non-conforming use for the property.” Butler then appealed the BZA decision to the Board, which upheld the BZA’s determination that Butler’s open storage of junk was not a legal non-conforming use for the property.

Butler then filed a petition for certiorari in the circuit court. Upon consideration, the circuit court, acting in its appellate capacity, granted Butler’s petition and quashed the decision of the Board. In doing so, the circuit court focused on Butler’s claim that her family’s use of the property for their hobby of car racing and repair, constituted a legal non-conforming land use because it had been continuously used in that fashion since before the Orange County Code became effective. The circuit court concluded the record contained no substantial, competent evidence to support Orange County’s determination that Butler’s use of the property to repair race cars as a hobby was not a legal nonconforming use. However, the circuit court failed to address Orange County’s determination that Butler’s outdoor storage of junk; tires, automobile parts and other debris is not a legal non-conforming use of the property.

In its petition, Orange County argues that the Board considered competent, substantial evidence supporting its conclusion that Butler’s property was being primarily used for the outside storage of junk, tires, automobile parts, debris and other similar waste materials, all pointing to the dominant use of the property as a junkyard. Orange County complains that by focusing only on whether Butler had used the property continuously since 1953 for race car repairs, the circuit court ignored the substantial evidence supporting the determination that Butler was using her property as a junkyard. Orange County contends if Butler was using her property as a junkyard, it was irrelevant that she might be entitled to a legal non-conforming use for her family’s hobby involving racing. We agree.

We grant Orange County’s petition for certiorari because the circuit court exceeded the scope of its review authority. The decision by the Board to uphold the BZA’s decision is a quasi-judicial decision. As a result, the standard of review at the circuit court level was limited to whether the Board had provided Butler procedural due process, observed the essential requirements of law and based its decision on competent substantial evidence. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). At the district court level, our inquiry is limited to whether the circuit court provided procedural due process and whether it applied the correct law. Id.

In the instant case, the record is replete with evidence supporting the Board’s conclusion that Butler was using her property as a junkyard for the “outdoor/open storage of junk, tires, automobile parts, debris and other similar waste materials.” The circuit court focused only on whether there was any substantial competent evidence supporting Orange County’s determination that Butler’s use of the property to repair race cars as a hobby was not a legal, nonconforming use. But in doing so, the circuit court failed to consider the abundant evidence of Butler’s primary use of her property as a junkyard, a prohibited activity, irrespective of her ability to use her land for her family’s racing hobby.

As a result, the circuit court departed from the essential requirements of law. A local government’s quasi-judicial decision must be upheld if there is any competent, substantial evidence supporting it. Dorian v. Davis, 874 So.2d 661 (Fla. 5th DCA 2004); Eckler v. Orange County, 763 So.2d 545 (Fla. 5th DCA 2000) (holding that a quasi-judicial determination by a local government should be upheld if any valid reason is supported by the record).

As a result, we grant Orange County’s petition for writ of certiorari and quash the circuit court’s order.

CERTIORARI GRANTED; ORDER QUASHED.

GRIFFIN and MONACO, JJ., concur.


author: GROSS, J.

text:
    TOTALE, INC., a Florida corporation, and Harold Van Arnem, Appellants, v. Donald C. SMITH, Appellee.
    No. 4D02-4801.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.

      Drew M. Levitt and Lee D. Sarkin, Boca Raton, for appellants.
    Robert B. Macaulay, Isaac J. Mitrani and Pamela Chamberlin of Mitrani, Rynor, Adamsky & Macaulay, P.A., Miami, for appellee.
   GROSS, J.

In the circuit court, Donald Smith brought suit against appellants, Totale, Inc. and Harold Van Arnem, over a $100,000 investment gone bad. A jury found that (1) both Totale and Van Arnem had committed securities fraud and common law fraud; (2) Totale was unjustly enriched at Smith’s expense; and (3) that Totale, but not Van Arnem, had committed civil theft. The jury assessed damages of $350,000.

We write to address the propriety of the damage award. As to the other issues, we find no error.

The evidence at trial was that Smith sent a $100,000 check to a law firm for his investment in Totale. According to the pretrial stipulation, Totale received the check on March 3,1999.

The trial focused on the issue of liability. Smith presented a convincing and comprehensive case for liability on the securities and common law fraud counts. During the trial, the parties paid little attention to the issue of damages. With the consent of the parties, the court’s charge to the jury on damages was vague. Once it finished the instructions on the elements of the various theories of recovery, the court charged the jury;

If you find for the defendants, you will not consider the matter of damages, but if you find for Mr. Smith, you should award him an amount of money that the greater weight of the evidence shows will fairly and adequately compensate him.

After posing interrogatory questions on the theories of recovery, the verdict form asked one damages question: “What was the amount of damages suffered by Plaintiff?”

During closing argument, the only damages figure argued by Smith’s attorneys was $100,000. One attorney said:

Obviously, [Smith’s] injured. He’s out $100,000 ... and I’m asking you to find, for Don Smith, civil theft against Mr. Van Arnem in the amount of $100,000, the exact amount of his check.

Moments later, while discussing the fraud counts, the attorney mentioned damages by stating: “So what Mr. Van Arnem did ... is he lied to Don Smith through his agent ... and again, it’s the same $100,000 damages.”

The goal of damages in tort actions is to “restore the injured party to the position it would have been in. had the wrong not been committed.” Nordyne, Inc. v. Fla. Mobile Home Supply, Inc., 625 So.2d 1283, 1286 (Fla. 1st DCA 1993). In Martin v. Brown, 566 So.2d 890 (Fla. 4th DCA 1990), we described the “flexibility theory” which allows two standards for measurement of damages in a fraud case:

Florida has adopted two standards for the measurement of damages in an action for fraudulent representation. Either may be used to do justice as the circumstances demand. The first standard is the “benefit of the bargain” rule which awards as damages the difference between the actual value of the property and its value had the alleged facts regarding it been true. The second standard is the “out-of-pocket” rule which awards as damages the difference between the purchase price and the real or actual value of the property.

Id. at 891-92; see also Nystrom v. Fabada, 652 So.2d 1266, 1268 (Fla. 2d DCA 1995); Nordyne, 625 So.2d at 1286. “The ‘flexibility theory’ permits the court to use either the ‘out-of-pocket’ or the ‘beneflt-of-the-bargain’ rule, depending upon which is more likely [to fully] compensate the injured party.” Nordyne, 625 So.2d at 1286. The “trial court may instruct the jury on the ‘out of pocket’ rule or the ‘benefit of the bargain’ rule as justice demands.” Getelman v. Levey, 481 So.2d 1236, 1239 n. 4 (Fla. 3d DCA 1985) (emphasis added).

DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532 (Fla. 3d DCA 1970), instructs how to apply the “flexibility theory” to do justice in a particular case:

(1) [I]f the defrauded party is content with the recovery of only the amount that he actually lost, his damages will be measured under that rule; (2) if the fraudulent representation also amounts to a warranty, recovery may be had for loss of the bargain, because a fraud accompanied by a broken promise should cost the wrongdoer as much as the latter alone; (3) where the circumstances disclosed by the proof are so vague as to cast virtually no light upon the value of the property had it conformed to the representations, the court will award damages equal only to the loss sustained; and (4) where the damages under the ‘benefit of the bargain’ rule are proved with sufficient certainty, that rule will be employed.

Id. at 536 (quoting 37 Am.JuR.2d Fraud and Deceit § 352). In cases involving a fraudulent sale of stock, “[u]nder either .measure , of damages, plaintiffs must prove the actual value of the stock[ ] ... at the time of purchase.” Strickland v. Muir, 198 So.2d 49, 51 (Fla. 4th DCA 1967), receded from on other grounds by Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828 (Fla. 4th DCA 1999) (en banc).

Under this approach to determining damages, the crucial time for the measurement is the time of the fraudulent representation. Later appreciation or depreciation of the property that is subject of the false representation .generally does not alter the fraud damage computation. For example, Schryburt v. Olesen, 475 So.2d 715 (Fla. 2d DCA 1985), involved the sale of a home by fraud. One item of damages awarded by the trial court was $15,393 for “loss of appreciation.” Id. at 717. The second district struck that item of damages from the award, analogizing it to the loss of anticipated profits. The court wrote that [a]nticipated profits may constitute an element of damages where resale of the subject matter is contemplated by the parties and known to the repre-sentor, and where the plaintiffs pursue an action for both breach of contract and for fraud in inducing the contract.” Id,.; see also Nordyne, 625 So.2d at 1286-87 (holding that in a case involving fraud that induced the buyer to purchase a business, evidence of lost profits was properly admitted under either the “out-of-pocket” or the “benefit-of-the-bargain” approach to damages).

In this case, Smith had no problem demonstrating a loss under the “out-of-pocket” measure of damages. He received nothing in return for his $100,000 investment so his loss is $100,000 plus pre-judgment interest since March 3, 1999. However, using the DuPuis approach, Smith may not recover “benefit of bargain” damages because the evidence at trial of a loss in excess of the $100,000 was “so vague as to cast virtually no light upon the value of the property had it conformed to the representations.” Du-Puis, 231 So.2d at 536 (citation omitted).

Smith argues that the testimony of Philip McKnight, an associate of Van Arnem who worked for Totale, supports the $350,000 verdict. McKnight testified that the value of the company, in connection with a 2000 private placement of up to $20 million in financing, was between $130 million and $155 million; in November 1998, in connection with the completely different financing program that lured Smith, “there were discussions about the valuation, and there was a range, and the number that I recall was approximately $25 million.” There was no other testimony concerning the value of the company in 1998 and 1999, at the time Smith made his investment. The argument that the five-fold increase in value reflects the valuation of the company as it was fraudulently represented to Smith is too speculative to support a damage award in excess of the $100,000 in lost principal. The trial judge recognized this weakness in the damages award by its comment at the hearing on a motion for remittitur, that “[t]here wasn’t any testimony by anybody that said [Smith] lost anything other than the $100,000.”

For these reasons we affirm the final judgment, reverse the damage award, and remand to the trial court for entry of an amended final judgment, with pre-judgment interest since March 3,1999.

GUNTHER and TAYLOR, JJ., concur.

      . The court's dismissal of the third-party complaint without prejudice was well within the trial court's discretion. See Fla. R. Civ. P. 1.270(b); Gortz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, 769 So.2d 484, 487-88 (Fla. 4th DCA 2000); Brodfuehrer v. Estate of Brodfuehrer, 833 So.2d 784, 787 (Fla. 3d DCA 2002). The trial court properly excluded evidence of a settlement with a non-party. There was abundant proof to support the securities and common law fraud claims against Van Arnem.


author: PER CURIAM.

text:
    Gernard L. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2167.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.

      Robert H. Trachman of Law Offices of Robert H. Trachman, Ft. Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee. ■
   PER CURIAM.

In Jackson v. State, 738 So.2d 382 (Fla. 4th DCA 1999), we affirmed Gernard Jackson’s convictions for kidnapping, robbery with a firearm, armed burglary, and misdemeanor battery. We held that Jackson’s attorney had failed to preserve an objection to records produced by Bell-South. Id at 385-86. Those records showed that on the night of the crimes, a phone call was made from the victims’ •home phone to a pager assigned to Jackson. Id. at 384.

Jackson moved for post-conviction relief, arguing that his trial counsel was ineffective for failing to properly object to the BéílSouth records. The circuit court denied the motion without a hearing. We reversed, and remanded for an evidentiary hearing “to determine if [the] evidence would have been admitted if the proper objection had been made.” Jackson v. State, 831 So.2d 722, 723 (Fla. 4th DCA 2002).

The circuit court held an evidentia-ry hearing and concluded that the Bell-South records would have been admitted, even if the proper objection had been made. The court observed that BellSouth was not a party to the litigation, and therefore had “absolutely no reason” to provide false or incorrect information. We affirm.

The witness who testified at the hearing was a “qualified witness” to testify about the records. § 90.803(6)(a), Fla. Stat. (2002).

Jackson complains that the record introduced “was prepared specifically for trial.” However, “[c]omputer printouts, like business records, are admissible if the custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product.” Pickrell v. State, 301 So.2d 473, 474 (Fla. 2d DCA 1974) (emphasis omitted). Data compiled and presented in printouts prepared for trial may be admissible under the business records exception, even though the printouts themselves are not kept in the ordinary course of business. See United States v. Fujii, 301 F.3d 535, 539 (7th Cir.2002). The fact that the information was printed out at the request of a party to the lawsuit does not “deprive the printouts of its business-record character.” Id.

United States v. Linn, 880 F.2d 209 (9th Cir.1989), abrogated on other grounds by Florida v. White, 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999), is instructive. There, the defendant objected to the admission into evidence of a computer printout which recorded a 6:29 p.m. telephone call from the co-defendant’s hotel room to the defendant’s hotel room. The defendant challenged the admissibility of the computer printout as “an untrustworthy record.” The Ninth Circuit characterized the argument as “frivolous,” noting that the “record” was generated automatically, and was retained in the ordinary course of business, as records of outgoing telephone calls regularly are. Id. at 216.

Linn is consistent with federal cases that have admitted computer business records' when the records are kept pursuant to a routine procedure to ensure accuracy, are not mere accumulations of hearsay or uninformed opinion, and were created for a motive that would ensure accuracy. See, e.g., United States v. Catabran, 836 F.2d 453, 457-58 (9th Cir.1988).

Applying Linn and Catabran, we do not find that the trial court abused its discretion in ruling that the records here were admissible. The BellSouth witness testified that every call was automatically “tagged” by computer and that the computer sent to the billing records every phone call that originated from a given number. At midnight, each day’s billing records were archived. The records were kept in the ordinary course of business. There is an obvious motive for accuracy in billing records. The information about the phone call on the night of the crime was extracted from the archived records in response to the subpoena.

AFFIRMED.

STONE, GROSS and HAZOURI, JJ., concur.

      . Rule 803(6) of the Federal Rules of Evidence, the federal business records exception rule, is substantially similar to Florida’s version, pursuant to section 90.803(6)(a).


author: TAYLOR, J.

text:
    Stephen Daryl LEVENSON, Appellant, v. Kevin McCARTY, Office of Insurance Regulation, Appellee.
    Nos. 4D03-3016, 4D03-3865.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.

      Bijan Parwaresch of Bijan Parwaresch, P.A., Miami Beach and Christian Carraza-na of .Christian Carrazana, P.A., Miami Beach, for appellant.
    Anthony B. Miller, Tallahassee, for ap-pellee.
   TAYLOR, J.

Stephen Daryl Levenson appeals the denial of his motion to set aside the order revoking his insurance license. We reverse, holding that the Office of Insurance Regulation’s attempted personal service was legally inadequate.

Personal service at Levenson’s last known residence was unsuccessful. The attorney for the Office of Insurance Regulation then made no attempt to contact the licensee by phone, despite the prior direct contacts between the agency and the licensee. Also, no attempt was made to contact either of the licensee’s known attorneys.

The key consideration in this case is the statute on license revocations. It provides:

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of 'a final order, the agency has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57. When personal service cannot be made and the certified mail notice is returned undelivered, the agency shall cause a short, plain notice to the licensee to be published once each week for 4 consecutive weeks in a newspaper published in the county of the licensee’s last known address as it appears on the records of the agency.

Fla. Stat. § 120.60(5)(2003)(emphasis added).

This statute is consistent with the common law in permitting service by publication only where personal service cannot be made. See Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225 (Fla.1986).

Constructive service statutes are strictly construed against a plaintiff who seeks to obtain service of process under them. Wiggins v. Portmay Corp., 432 So.2d 802, 804 (Fla. 1st DCA 1983). Where the agency cannot show that personal service cannot be made, the appeals court will vacate the final order and remand for a hearing under Chapter 120. Schram v. Dept. of Prof l Regulation, 603 So.2d 1307, 1310 (Fla. 1st DCA 1992). Thus, the key question in this appeal is the adequacy of the agency’s personal service effort.

In Smetal Corp. v. West Lake Inv. Co., 126 Fla. 595, 172 So. 58, 62 (1936), the court stated:

Reasonable diligence in such matters is an honest effort, and one appropriate to the circumstances, to ascertain whether actual notice may be given, and, if so, to give it. Such effort, however, need not embrace a search in remote parts of the state ... and it is not essential that all possible or conceivable means should be used. But the effort should usually extend to inquiry of persons likely or presumed to know the facts sought.

(citation omitted; emphasis added).

On point is the opinion in Torelli v. Travelers Indemnity Co., 495 So.2d 837, 838 (Fla. 3d DCA 1986), wherein the court stated:

The failure of the plaintiff to follow an obvious lead to the defendant’s whereabouts, that is, to make inquiry of the defendant’s known attorney, compels us to conclude, unlike the trial court, that the plaintiff did not exercise due diligence in attempting to locate the defendant and was thus not entitled to assert that the defendant was concealing her whereabouts or was no longer a resident of Florida so as to trigger the operation of the “substituted service on non-resident motor vehicle owner” statute....

(citation omitted; emphasis added).

In this case, the attorney for the Office of Insurance Regulation made no attempt to contact the licensee by phone or through his known attorneys. Because this was not a case where personal service could not be made, service by publication was not justified.

REVERSED and REMANDED for proceedings on the merits.

WARNER and KLEIN, JJ., concur.


text:
    The J.M. SMUCKER CO., Petitioner, v. Glen RUDGE, on behalf of himself and all others similarly situated, Respondents, The J.M. Smucker Co., v. Debra Frenkel, on behalf of herself and all others similarly situated, Respondents, The J.M. Smucker Co., v. Ann Hart Berning, on behalf of herself and all others similarly situated, Respondent.
    No. 3D04-1402.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.

      Tew Cardenas LLP and Lawrence A. Kellogg, P.A., for petitioner.
    Harke & Clasby, LLP, Lance A. Harke, P.A., and David J. Maher; Shepherd, Finkelman, Miller & Shah, LLC, and Scott R. Shepherd (Fort Lauderdale); Tomchin & Odom, P.A., and Kenneth A. Tomchin (Jacksonville); Barbara Slott Pegg (Ponte Vedra Beach); and, for respondent.
    Before SCHWARTZ, C.J., and COPE and SHEPHERD, JJ.
   PER CURIAM.

Petitioner, J.M. Smucker Co. (“Smucker”), seeks certiorari review of an order denying its motion to stay proceedings in these three consolidated Florida putative class actions pending the resolution of a substantially identical purported national class action in Illinois state court. We have jurisdiction, see Fla. R.App. P. 9.030(b)(2) and REWJB Gas Investments v. Land O’Sun Realty Ltd., 645 So.2d 1055 (Fla. 4th DCA 1994), rev. denied, 654 So.2d 919 (Fla.1995), and quash the order of the trial court.

On May 16, 2003, Sari Smith filed a class action lawsuit in the Circuit Court of Cook County, Illinois, Smith v. J.M. Smucker Co., No. 03CH08522, (the “Illinois case”) on behalf of “[a]ll purchasers in the United States of America of spreadable fruit products labeled Simply 100% Fruit manufactured, produced, and sold by J.M. Smucker Co. excluding its directors, officers and employees” for consumer fraud, deceptive business practices, unjust enrichment, and breach of warranty, alleging that Smucker’s Simply 100% Fruit products do not contain 100% fruit. Within a few months thereafter, three additional purported class action lawsuits were filed by the respondents herein, each seeking to certify classes of Florida purchasers of Smucker’s Simply 100% Fruit products and making the same operative allegations. The Illinois case is being vigorously litigated, and a resolution of the class certification issue is anticipated in the near future.

The issue in this case is whether the Florida actions are so similar in parties and issues as to be unnecessarily duplica-tive of the previously filed Illinois state proceeding. If so, principles of comity among sovereigns suggest that this court should stay the proceedings in these cases pending the resolution of the Illinois case. Polaris Public Income Funds v. Einhorn, 625 So.2d 128 (Fla. 3d DCA 1993) (citing Bedingfield v. Bedingfield, 417 So.2d 1047, 1048 (Fla. 4th DCA 1982), rev. dismissed, 427 So.2d 736 (Fla.1983)). “This principle holds true whether the action was earlier filed in a state or federal court.” Polaris Public Income Funds v. Einhom, 625 So.2d 128, 129 (Fla. 3d DCA 1993) (citing Ricigliano v. Peat, Marwick, Main & Co., 585 So.2d 387 (Fla. 4th DCA 1991)).

In this case, all of the Florida lawsuits contain the same basic allegations as the pre-existing Illinois case. The issues of law and fact are identical in all three Florida cases: (a) whether Defendant’s spreadable fruit products labeled Simply 100% Fruit contain less than 100 percent fruit; (b) whether Defendant misrepresented and/or omitted information about its spreadable fruit products labeled Simply 100% Fruit; and (c) whether Defendant has been unjustly enriched to the detriment of Plaintiff and the class. We find that the allegations and causes of action in the Florida cases are substantially identical to the allegations made in the Illinois case, and that all three Florida cases should be stayed pending the resolution of the national class action pending in Illinois state court. In so doing, we reject respondents’ argument that Smucker’s contesting of the class certification in Illinois precludes it from seeking a stay of the Florida actions. To hold otherwise would obligate Smucker’s to stand mute on national class issue in order to obtain temporary relief here. We also reject respondents’ contention that Smucker’s will not be irreparably harmed. The lower court’s failure to stay the Florida case subjects Smucker’s to duplication of efforts and costs, as well as the possibility of inconsistent judgments.

Based on the foregoing we conclude that the trial court departed from the essential requirements of law in denying relief to Smucker’s on its Motion to Stay. See Sabol v. Bennett, 672 So.2d 93 (Fla. 3d DCA 1996). As such, we grant the petition for certiorari, quash the non-final order of the trial court, and remand with instructions to grant the requested stay.

      . Eighteen other similar state court class actions have been filed in eleven states.


text:
    Roxana DELGADO, Appellant, v. J. BYRONS, INC., a Florida corporation, Appellee.
    No. 4D03-3766.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.

      Mark K. Koenig of the Law Offices of Mark K. Koenig, West Palm Beach, for appellant.
    Steven M. Pincus of C. Brooks Ricca, Jr. & Associates, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Roxana Delgado sued J. Byrons, Inc. for negligence in 1997. Following a contentious period of discovery, J. Byrons filed a Renewed Motion to Strike Plaintiffs Pleadings and For Sanctions based on discovery violations. The trial court granted the motion. J. Byrons then sought both attorney’s fees based on a proposal for settlement and entry of final judgment. The trial court awarded attorney’s fees and entered a final judgment. Delgado appeals both the order granting the motion to strike and dismissing the cause and the final judgment granting attorney’s fees. We dismiss the appeal as to the issues raised regarding the motion to strike, and affirm as to the award of attorney’s fees.

Delgado raises three issues on appeal. In the first issue, Delgado asserts that the trial court erred by granting J. Byrons’s motion to strike. The order granting the motion to strike was entered on February 13, 2003, and stated: “ORDERED and ADJUDGED that said Motion is hereby GRANTED; Plaintiffs pleadings are stricken and cause dismissed w/o prejudice.” The notice of appeal was not filed until after the September 9, 2003 final judgment awarding attorney’s fees. J. By-rons maintains that Delgado cannot seek review of this order because she did not timely appeal.

“Although the phrase ‘without prejudice’ ordinarily indicates that an order is not final, there is one circumstance in which [a] dismissal without prejudice is final. If the effect of the order is to dismiss the case ... the language ‘without prejudice’ would not affect the finality of the order.” Philip J. Padovano, Florida Appellate Practice § 21.2 (2d ed.1997); see also Silvers v. Wal-Mart Stores, Inc., 763 So.2d 1086, 1086-1087 (Fla. 4th DCA 1999)(case against one defendant was dismissed “without prejudice to plaintiffs refiling a separate suit,” and such an order is a final, appealable order); Martinez v. Collier County Pub. Sck, 804 So.2d 559, 560 (Fla. 1st DCA 2002)(“Dismissal without prejudice is final if its effect is to bring an end to judicial labor.”).

In the case at bar, the dismissal of Delgado’s cause ended the judicial labor as to her case and required her to file a new action to re-initiate proceedings. However, Delgado would have been unable to do so because the four-year statute of limitations for negligence had run. See § 95.11(3)(a), Fla. Stat. As such, it is apparent that the words “without prejudice” did not prevent the February 13 order from being a final, appealable order. See Walden v. Adekola, 773 So.2d 1218, 1219 (Fla. 3d DCA 2000)(“However, as plaintiff points out, the statute of limitations has expired so that the dismissal is, as a practical matter, with prejudice.”). Because Delgado did not appeal the February 13 order within thirty days, this court is without jurisdiction. See Fla. R.App. P. 9.110(b). Consequently, this appeal is dismissed as to Delgado’s first issue on appeal.

Additionally, the appeal is dismissed as to Delgado’s second issue regarding the alleged use of a proposed order by the trial court, as the issue addresses the preparation of court orders involving discovery violations and sanctions, the subject matter of the February 13 order that was not timely appealed.

We affirm on Delgado’s third issue addressing the trial court’s grant of attorney’s fees to J. Byrons based on a proposal for settlement without further discussion.

DISMISSED IN PART; AFFIRMED IN PART.

GUNTHER, STEVENSON and HAZOURI, JJ., concur.


author: POLEN, J.

text:
    GAEDEKE HOLDINGS, LTD., a Texas limited partnership by and through its general partner, Gaedeke Investments, Inc., a Texas corporation authorized to transact business in the State of Florida and transacting business in the State of Florida, Appellant, v. MORTGAGE CONSULTANTS, INC., a Georgia corporation doing business without authority in the State of Florida, Randy Nier, and Scott Olinick, Appellees.
    No. 4D03-3894.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.

      Debra Mann Cohen of Mandel, Weis-man, Heimberg, Brodie & Griffin, P.A., Boca Raton, for appellant.
    Jerald A. Goldstein, Boca Raton, for ap-pellees.
   POLEN, J.

Appellant, Gaedeke Holdings, Ltd., has timely appealed an order denying its motion for attorneys’ fees and costs. For the following reasons, we reverse in part and remand with instructions for the trial court to enter an order consistent with this opinion.

This appeal arose from a breach of a lease and guaranty suit by Gaedeke against Mortgage Consultants, Inc. in May of 1999. An Agreed Final Judgment was entered in January of 2000 against Mortgage Consultants for $25,733.69. After Gaedeke attempted to execute on the judgment and discovered that Mortgage Consultants was insolvent, Appellees Nier and Olinick were impled for alleged fraudulent transfers. On March 6, 2003, prior to the trial against Nier and Olinick, Gaedeke filed a motion for attorneys’ fees and costs against Mortgage Consultants. A hearing was held on this motion on May 29, 2003. Nier’s counsel submitted a memorandum of law and Olinick’s counsel failed to appear whatsoever. On May 29, 2003, the trial court entered a Final Judgment and Order on Plaintiffs Motion for Taxation of Costs and Attorney’s Fees awarding Gae-deke $43,208.52 for costs and fees against Mortgage Consultants. Gaedeke was also granted leave to amend its pleadings upon proof of fraudulent transfers.

Prior to the trial against Nier and Olin-ick, requests for admission were served. Olinick denied all of the requests for admission. At the trial, the trial court held that there were fraudulent transfers. A final judgment was entered against Nier and Olinick on August 22, 2003. Gaedeke then sought to recover attorneys’ fees and costs under section 56.29(11), Florida Statutes, from Nier and Olinick based on the collection of the judgment against Mortgage Consultants. The trial court requested memorandums of law on the issue. On September 24, 2003, the trial court denied Gaedeke’s Motion for Costs and Fees against Nier and Olinick, specifically finding:

Under Florida law, the Plaintiff is not entitled to an award of attorneys’ fees in any supplemental proceedings against either Randy Nier or Scott Oliniek. This includes the $40,643.52 sought in the Plaintiffs March 6, 2003 Motion on Taxation of Costs and Attorney Fees, ... See § 56.29 Fla. Stat. (2003); Dusoe v. Securis International, 672 So.2d 89 (Fla. 1st DCA 1996); Rosenfeld v. TPI International Airways, 630 So.2d 1167 (Fla. 4th DCA 1993); Bonizo Properties v. Schroeder, 528 So.2d 1304 (Fla. 4th DCA 1988).

Gaedeke first challenges the trial court’s ruling that, as a matter of law, Gaedeke is not permitted to recover attorneys’ fees and costs for supplemental proceedings against Nier and Oliniek. We find no error in this ruling. Gaedeke moved for fees and costs against the im-pled defendants under section 56.29(11), which provides:

Costs for proceedings supplementary shall be taxed against the defendant as well as all other incidental costs determined to be reasonable and just by the court including, but not limited to, docketing the execution, sheriffs service fees, and court reporter’s fees. Reasonable attorney’s fees may be taxed against the defendant.

Rosenfeld v. TPI Int'l Airways, 630 So.2d 1167, 1169 (Fla. 4th DCA 1993), is controlling on this issue.

[W]e believe an analysis of chapter 56 demonstrates that attorney’s fees, if awarded, are to be assessed against the judgment debtor. Supplementary proceedings under the statute are proceedings subsequent to judgment to aid a judgment creditor in collecting his judgment against the judgment debtor. Section 56.29, providing for impleading additional parties, contains no authority for assessing fees against the implied third party defendant. The statute authorizes fees against “the defendant.” Throughout the statute, use of the term “the defendant” clearly references the judgment debtor. Thus, under rules of statutory construction, we fail to find authority for allowing attorney’s fees otherwise than against the judgment debt- or.

Id.; see also Speer v. Mason, 769 So.2d 1102, 1105 (Fla. 4th DCA 2000) (holding Florida law does not allow for award of prevailing attorney’s fees against individual, who was made party to appeal through supplementary proceedings); Dusoe v. Securis Int’l, Inc., 672 So.2d 89, 90 (Fla. 1st DCA 1996) (holding no Florida law supports assessment of attorneys’ fees and costs against implied third party defendants under section 56.29(11)).

This is not the end of our analysis, however. Gaedeke correctly argues that it is still entitled to attorneys’ fees from Mortgage Consultants incurred in the collection of Mortgage Consultants’ judgment debt. Likewise, pursuant to section 56.29(5), “the judge may order any property of the judgment debtor [ ] in the hands of any person or due to the judgment debtor to be applied toward the satisfaction of the judgment debt.” Although Gaedeke is not entitled to a direct award of attorneys’ fees against the impled defendants, see Rosenfeld, to hold that Gaedeke cannot collect Mortgage Consultants’ judgment debt from the fraudulently transferred assets would fly directly in the face of the fraudulent transfers statute. Moreover, it matters not that the judgment debt consists of attorneys’ fees. Because the trial court found that Mortgage Consultants fraudulently transferred funds to Nier and Oliniek, leaving it with assets insufficient to satisfy the $43,208.52 judgment debt, the trial court should have applied those fraudulently transferred assets toward satisfaction of said debt. Nier and Oliniek claim that the trial court was without jurisdiction to enter the May 29, 2003 award of attorneys’ fees because the Agreed Final Judgment failed to reserve jurisdiction. Without commenting on the merits of this argument, we find that because that award was not timely appealed, this court is without jurisdiction to review it. See Brown v. State, 661 So.2d 96, 96 (Fla. 4th DCA 1995); Semler v. Citicorp Sav. of Fla., 541 So.2d 1369, 1369 (Fla. 4th DCA 1989). Accordingly, we remand this case back to the trial court with instructions that an order should be entered applying the fraudulently transferred assets toward satisfaction of Mortgage Consultants’ May 29, 2003 judgment debt. See § 56.29(5).

We next address Gaedeke’s argument that it was error not to award it costs as the prevailing party in the supplemental proceedings. Section 57.041(1) provides that “[t]he party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment....” The Appellees correctly contend that section 56.29(11) precludes any award of costs against impled defendants. See Rosenfeld. However, section 56.29(11) specifically provides that “costs for proceedings supplementary shall be taxed against the defendant.” Accordingly, we find the trial court erred in refusing to award costs against Mortgage Consultants. On remand, the trial court should award costs against Mortgage Consultants and apply the fraudulent transfers toward satisfaction of the cost award as well. We find all of Gaedeke’s remaining arguments to be unpersuasive.

REVERSED and REMANDED.

MAY, J„ and BERNSTEIN, SCOTT M., Associate Judge, concur.


text:
    GOLF SCORING SYSTEMS UNLIMITED, INC., Appellant, v. Joseph W. REMEDIO, Appellee.
    No. 4D03-4142.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.

      Gary M. Bagliebter and Temple F. Kearns of Shutts & Bowen LLP, Fort Lauderdale, for appellant.
    Louis E. Lozeau, Jr. of Wright, Ponsoldt & Lozeau, Trial Attorneys, L.L.P., Stuart, for appellee.
   PER CURIAM.

Joseph Remedio filed suit against Golf Scoring Systems Unlimited, Inc. in Martin County for breach of contract and specific performance of agreements related to the development and marketing of computerized golf scoring devices. Golf Scoring filed a motion to dismiss Remedio’s complaint for improper venue based on a Bro-ward County forum selection clause contained in the agreements. The trial court denied the motion, finding the clause permissive. We reverse.

Both the initial agreement for the development and marketing of computerized golf scoring devices and a subsequent Patent and Technology License Agreement included the following forum selection clause:

GOVERNING LAW AND VENUE:
This Agreement and the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of Florida. The parties hereto consent to Broward County, Florida, as the proper venue for all actions that may be brought pursuant hereto.

Additional agreements between the parties neither included or altered this clause. Remedio maintains that the clause is permissive and Golf contends that the clause is mandatory. The trial court determined that the clause was permissive, relying on Granados Quinones v. Swiss Bank Corp., 509 So.2d 273 (Fla.1987).

The status of the forum selection clause raises an issue of contract interpretation. When interpreting a contract, a court should give effect to the plain and ordinary meaning of its terms. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 132 (Fla.2000) (citing Scudder v. Greenbrier C. Condo. Ass’n, 663 So.2d 1362, 1367 (Fla. 4th DCA 1995)); Am. Real Estate Holdings Ltd. P’ship v. Twin Cities Investors, Inc., 740 So.2d 562, 565 (Fla. 4th DCA 1999). “Words should be given their natural meaning or the meaning most commonly understood in relation to the subject matter and circumstances, and reasonable construction is preferred to one that is unreasonable.” Thompson v. C.H.B., Inc., 454 So.2d 55, 57 (Fla. 4th DCA 1984).

Under Florida law, a forum selection clause is considered mandatory where it requires “ ‘that a particular forum be the exclusive jurisdiction for litigation concerning the contract.’ ” Granados Quinones, 509 So.2d at 274 (citation omitted). On the other hand, “[p]ermissive clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in any other forum.” Id. at 274-275. Generally, a forum selection clause “will be considered permissive where it lacks words of exclusivity.” Shoppes Ltd. P’Ship v. Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002). Exclusivity exists where “forum selection clauses state or clearly indicate that any litigation must or shall be initiated in a specified forum,” but not where words such as “may” are used. Id. To be mandatory the clause need only contain terms expressing that nature, not magic words. See Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999)(indicating that a venue clause need only be phrased in “mandatory terms” to be considered mandatory).

In the case at bar, the forum selection clause does not state that it is mandatory by employing the magic words “must” or “shall.” The forum selection clause also does not state that it is permissive by using words such as “may.” However, the forum selection clause does clearly indicate that it is mandatory in nature. The clause includes the phrase “the proper venue.” “The” is a definite article “used as a function word with a noun modified by an adjective or by an attributive noun to limit the application of the modified noun to that specified by the adjective or the attributive noun <[the] right answer>.” Webster’s New Collegiate Dictionary 1199 (1980 ed.). As such, “the” limits that to which it refers to only one, to the exclusion of all others. Thereforé, Broward County is the exclusive and mandatory forum in the case at bar. Consequently, we reverse and remand for dismissal.

REVERSED AND REMANDED.

GUNTHER, STEVENSON and HAZOURI, JJ., concur.


author: STEVENSON, J.

text:
    Tiffany BOSWELL, Appellant, v. John J. BOSWELL and Independent Stave Company, Inc., a Missouri corporation, and/or ISCO Holding Co., Inc., a Missouri corporation, Appellees.
    No. 4D03-4184.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.

      Jeffrey D. Fisher,. Odette Marie Ben-deck and Georgia T. Newman of Fisher & Bendeck, P.A., West Palm Beach, for appellant.
    Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., and Mark T. Luttier of Bur-man Critton Luttier & Coleman, P.A., West Palm Beach, for appellee John J. Boswell.
   STEVENSON, J.

In this divorce action, Tiffany Boswell appeals a non-final order granting appel-lees’ motion to strike her motion for temporary relief. The trial court granted the motion to strike based on a prior agreement between the parties, which purportedly was non-modifiable and had settled all pre-trial temporary relief issues. Im her motion for temporary relief, appellant alleged legal and equitable grounds upon which to challenge the prior agreement. We reverse.

We find that the trial court erred in granting the motion to strike without affording appellant an evidentiary hearing to attempt to prove the factual basis for her challenges to the validity and application of the prior agreement, which purported to settle the temporary relief issues. Alternatively, if the trial court had determined that the grounds challenging the prior agreement were legally insufficient, and that the existence of the prior agreement alone served to defeat any claim for temporary relief,. the appellant’s motion should have been denied on its face since no amount of evidence would have been relevant to the outcome of the hearing.

In conclusion, based on our review of the pleading at issue, there was simply no legal basis upon which to strike appellant’s motion for temporary relief. See Fla. Fam. L.R.P. 12.150; Fla. R. Civ. P. 1.150(a)(court may strike “sham” pleading); see also Fla. Fam. L.R.P. 12.140; Fla. R. Civ. P. 1.140(f)(court may “strike” redundant, immaterial, impertinent or scandalous matter from a pleading). A motion to strike should rarely be used to challenge the merits of a pleading. Cf. Van Valkenberg v. Chris Craft Indus., Inc., 252 So.2d 280, 284 (Fla. 4th DCA 1971)(stating that “a motion to strike is not favored and is viewed with skepticism”), quashed on other grounds, 267 So.2d 642 (Fla.1972). Here, the trial court’s failure to enter a written order ruling on the merits of the motion for temporary relief was error, and additionally, frustrates appellate review.

REVERSED and REMANDED.

GUNTHER and HAZOURI, JJ., concur.


author: STONE, J.

text:
    S.C., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D03-4669.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Frank A. Kreidler, Lake Worth, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   STONE, J.

We affirm an order terminating the mother’s parental rights to two children following the mother’s default.

The Department of Children and Families (“Department”) filed a petition to terminate the mother’s parental rights in April 2003. The children had been living in Florida with their father since 1999; however, the father died in November 2002. The mother lived in Virginia.

In June 2003, the court held a permanent commitment advisory hearing for the permanent commitment of the children and for termination of the mother’s parental rights. The mother was personally served with a summons and notice. Prior to the hearing, the mother informed Department that she was unable to personally appear. In turn, Department advised her that she could appear by telephone from her Virginia home. Department instructed the mother to stand by the telephone between 2:00 p.m. and 3:00 p.m. on June 11, 2003. The court was informed of and agreed to this arrangement. The court called the mother’s correct phone number at 2:21 p.m. and again at 2:38 p.m. Department also attempted to contact the mother throughout the hearing, however, the mother never answered the calls.

As a result of the mother’s failure to appear at the hearing, the court declared a default, took testimony regarding the children’s best interests, and terminated the mother’s parental rights based on “constructive consent.” The mother did not appeal the order but did, thereafter, contact Department, claiming that she had telephone problems on the day of the hearing. At that time, and in light of a status hearing scheduled for July 23, 2003, Department requested the mother be provided legal counsel. Hearings were held on July 23, 2003 and July 30, 2003, unattended by the mother, regarding the appointment of legal counsel. The mother filed an affidavit of insolvency on July 29, 2003, and the court appointed an attorney to the mother on July 30, 2003. The attorney then filed a motion to set aside default.

The mother was afforded an opportunity to appear at a status check on August 20, 2003, but she again failed to do so. Counsel for the mother advised the court that, while he wanted to seek to vacate the default order, the mother had failed to get back to him concerning the “basic information” he needed. The status check was reset for September.

The mother was present, for the first time, at the October hearing on her motion to set aside default. There, the mother testified that she had a working telephone and that when the court called her on June 11, 2003, she answered the telephone and “said hello twice,” yet nobody was there. The mother later changed her testimony, this time stating:

I recognized Florida number on my caller I.D. and, I believe I tried calling it back. And, It also depends on what time did I receive the call from Florida. Cause, I might have — and, I’ll correct myself. I might have not been home at the time that you made that call ...; But, I might have went out and tried to make it back I time enough to get the phone call. And, I might have not made it back in time.

After listening to a tape recording of the June 11 hearing, and considering the mother’s testimony and demeanor, the trial court found her testimony full of “contradictions” and “inconsistencies.” The court further found that the mother’s testimony was not credible and that her failure to appear was not a result of mistake, inadvertence, surprise, or excusable neglect. Therefore, the court denied the mother’s motion to set aside default and ordered the termination of her parental rights.

The trial court did not abuse its discretion in denying the mother’s motion to set aside default. Because the trial court heard the evidence and observed the mother’s demeanor, this court should not reweigh the lower court’s conclusions as to her truthfulness. See Rathburn v. Dep’t of Children & Families, 826 So.2d 521, 523 (Fla. 4th DCA 2002). Further, section 39.801(3)(d), Florida Statutes, and Florida Rule of Juvenile Procedure 8.510(a)(3), provide statutory and procedural authority for the court to accept a parent’s failure to appear at an advisory hearing as constructive consent to termination of parental rights by default. See In re W.C., 797 So.2d 1273, 1274 (Fla. 1st DCA 2001). These provisions recognize the trial court’s authority to terminate parental rights even if the parent does not participate in the hearing process. J.B. v. Dep’t of Children & Families, 768 So.2d 1060, 1067 (Fla. 2000).

Certainly, this court has made it clear that constructive consent in termination of parental rights cases should be a disfavored result. See R.P. v. Dep’t of Children & Families, 835 So.2d 1212, 1214 (Fla. 4th DCA 2003); AM. & Z.M. v. Dep’t of Children & Families, 853 So.2d 1084 (Fla. 4th DCA 2003)(arriving at a hearing one hour late because the parents were mistaken about the public transportation schedule); A.J. v. Dep’t of Children & Families, 845 So.2d 973 (Fla. 4th DCA 2003)(where parents arrived 25 minutes late for the third day of the hearing because they had been delayed by public transportation). In those opinions, we recognized that custody and dependency should not be decided by “gotcha” practices when a parent makes a reasonable effort to be present at a hearing and is delayed by circumstances beyond his or her control. A.J., 845 So.2d at 976. The circumstances in those cases, however, are significantly different from those found here; in each of those cases the parent’s failure to appear was accompanied by a reasonable effort and a reasonable explanation.

Other courts contrast parents who fail to appear at a hearing without a reasonable explanation with those who have made some reasonable effort to be present. In In re W.C., a father, living out of state, did not personally appear at an advisory hearing concerning the termination of his parental rights. 797 So.2d at 1274. Finding that the father had been adequately noticed of the hearing requiring his presence, the First District held that the clear language of section 39.801(3)(d), Florida Statutes, revealed the legislature’s intent to require the personal participation of any parent risking a termination of rights. Id. at 1275. While recognizing the significance of a parent’s rights, the court concluded that the father’s intentional failure to appear amounted to constructive consent. Id. at 1276. See J.T. v. Dep’t of Children & Families, 800 So.2d 692, 693-94 (Fla. 5th DCA 2001)(holding that where parents failed to appear at the advisory hearing, their failure to provide the court with a reasonable excuse for their absence supported termination under section 39.801(3)(d)). See also S.B. v. Dep’t of Children & Families, 851 So.2d 689, 693 (Fla.2003)(suggesting, and although decided on another issue, the supreme court was not troubled by a dependency adjudication founded on constructive consent).

Here, the mother has provided the court with no reasonable excuse for her failure to appear by telephone. To the contrary, she provides contradictory stories to support her lack of response, first explaining that she heard her phone ring and that she answered the phone, then claiming that there was a problem with her otherwise working telephone, and finally admitting that she was not even home on the day of the noticed hearing. Here, despite the efforts of the court and Department to accommodate the mother’s alleged inability to travel from Virginia to Florida, the trial court reasonably concluded, particularly when she made no appearances at any of the preceding hearings and had not visited either of her children in the past three years, that the mother intentionally failed to appear at, or participate in, the hearing.

The mother also contends that the court acted improperly by allowing her to appear by telephone, suggesting that section 89.801(3), Florida Statutes, prohibits a parent from appearing by telephone. However, neither the plain language of the statute nor cáse law indicate that an agreement between the parties and the trial court for a parent to appear by telephone is improper.

As a result of Department’s consent for the mother to appear at the July 11th proceeding by telephone, she argues that the trial court erred in the delayed appointment of counsel. Therefore, the mother asserts that Department’s consent caused her to not attend the hearing, at which time she would have been provided the services of a court-appointed lawyer. In other words, Department’s efforts to accommodate the mother, by consenting to a telephone appearance because she could not travel to Florida, led to the mother’s delay in proving indigency and subsequent delay in appointing counsel. We reject this reasoning because the responsibility for the mother’s failure to travel to Florida, to participate in the hearing by telephone, or to follow-up if there was a problem with her phone, lies with her and not the trial court or Department. To hold otherwise would suggest that the trial court or Department could not accommodate a parent in this manner where providing for participation by telephone is necessary and reasonable.

We also note that it was Department, on its own accord, that requested the court to appoint counsel to the mother and, when so advised, the court granted the request.

We, therefore, conclude that the mother has failed to demonstrate reversible error or abuse of discretion.

KLEIN and TAYLOR, JJ., concur.

      . We note that the mother does not challenge the default judgment based on lack of notice or insufficient service of process.

      . We note that Department also argues that there are many other cases in which constructive consent has been upheld by this court but where the issue has not been addressed by written opinion.


author: DELL, JOHN W., Senior Judge.

text:
    Mario ABREU, Appellant/Cross-Appellee, v. LLOYD’S, LONDON, Appellee/Cross-Appellant.
    No. 3D03-1379.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.

      Lopez & Best and Virginia M. Best, for appellant/cross-appellee.
    Adorno & Yoss, P.A., and Jack R. Reiter and William S. Berk and Effie D. Silva, for appellee/cross-appellant.
    Before SCHWARTZ, C.J., and GODERICH, J., and DELL, JOHN W., Senior Judge.
   DELL, JOHN W., Senior Judge.

Mario Abreu (“Abreu”) appeals from a Final Judgment in favor of appellee, Lloyd’s of London (“Lloyd’s”)- Lloyd’s cross-appeals from an order denying its motion to dismiss for lack of prosecution. We reverse the trial court’s Final Judgment in favor of Lloyd’s and affirm the trial court’s denial of Lloyd’s motion to dismiss for lack of prosecution.

Lloyd’s insured a truck owned by Abreu. During the night of April 26, 1998, Abreu’s truck was stolen. He had parked the truck for the night on the side of a street. Abreu filed a claim with Lloyd’s. Lloyd’s denied coverage pursuant to the special conditions set forth in section 5 of its policy. Section 5 provides in part: “Warranted vehicle not left on open highway overnight.” Abreu filed suit and the parties agreed to refer the case to a General Master. The General Master concluded that Lloyd’s’ failure to define the term “open highway” did not render the term ambiguous and that “under the plain meaning of the policy, the theft of the truck wás not covered, ... as [Abreu] parked the truck on an open highway overnight.” The trial court approved the General Master’s Report and entered Final Judgment in favor of Lloyd’s. Abreu argues that Lloyd’s failure to define the term “open highway” made the provision ambiguous as applied to his claim and that because of this ambiguity the policy must be construed in his favor. We agree.

The supreme court explained in State Farm Fire & Cas. Co. v. CTC Dev. Corp., that:

The lack of a definition of an operative term in a policy does not necessarily render the term ambiguous and in need of interpretation by the courts ... [h]owever, where policy language is subject to differing interpretations, the term should be construed liberally in favor of the insured and strictly against the insurer.

720 So.2d 1072, 1076 (Fla.1998). Here, the lack of a definition of the term “open highway” constituted an ambiguity that cannot be cured by simply looking to the terms “highway” and “open” as defined in various dictionaries and the Florida Statutes. For example, Lloyd’s cites section 633.021(12), Florida Statutes (2003), in support of its argument that the term “open highway” applies to a vehicle parked on the side of a street. Section 633.021(12) provides, in part:

‘Highway’ means every way or place of whatever nature within the state open to the use of the public, as a matter of right, for purposes of vehicular traffic and includes public streets, alleys, roadways, or driveways upon grounds of colleges, universities, and institutions and other ways open to travel by the public

The broad scope of the term “highway” as defined in this statute highlights the ambiguity created by the term “open highway” as used in the policy. Lloyd’s has shown that the definition of the term “highway” may include streets and many “other ways open to travel by the public.” Id. It follows that if the term “open highway” applies to streets, as Lloyd’s argues, it must also apply to alleys, roadways, driveways, and similar means of travel. The result of such an interpretation would virtually eliminate coverage under the policy for the theft of a vehicle parked overnight on or at the side of a street or any other public way. “When an insurer fails to define a term in a policy, ... the insurer cannot take the position that there should be a ‘narrow, restrictive interpretation of the coverage provided.’ ” State Comprehensive Health Ass’n v. Carmichael, 706 So.2d 319, 320-21 (Fla. 4th DCA 1997) (quoting Budget Rentr-A-Car Sys., Inc. v. Gov’t Employees Ins. Co., 698 So.2d 608, 609 (Fla. 4th DCA 1997)). Consequently, the lack of a definition of the term “on open highway” precludes Lloyd’s from taking the position that the theft coverage provided by this policy does not apply to a vehicle parked overnight on the side of a street. We therefore hold that the term “open highway,” as used in this policy, is ambiguous and that the trial court erred when it entered judgment for Lloyd’s on Abreu’s claim for the theft of his truck.

As to the cross-appeal, we affirm the trial court’s denial of Lloyd’s’ motion to dismiss for lack of prosecution. See Lukowsky v. Hauser & Metsch, P.A., 677 So.2d 1383 (Fla. 3d DCA 1996); Air Line Pilots Ass’n v. Schneemilch, 674 So.2d 782 (Fla. 3d DCA 1996).

Accordingly, we reverse the Final Judgment in favor of Lloyd’s and remand this matter to the trial court to determine damages and for entry of a judgment in favor of Abreu. We affirm the denial of Lloyd’s’ motion to dismiss for lack of prosecution.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

       Specifically, Lloyd's cites to § 316.003(53), Fla. Stat. (2003); § 322.02(38), Fla. Stat. (2003); § 633.021(12), Fla. Stat. (2003); Merriam-Webster's Collegiate Dictionary 587 (11th ed.2003); Merriam-Webster’s Collegiate Dictionary 868 (11th ed.2003); Black's Law Dictionary 734 (7th ed.1999); Roget's II, The New Thesaurus (3d ed.1995); Merriam-Webster’s Collegiate Thesaurus 369 (1988).


text:
    Jerome BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1085.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.

      See also, 772 So.2d 627.
    Jerome Bailey, Madison, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jerome Bailey appeals an order summarily denying his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part, reverse in part, and remand.

The post-conviction motion concerns the first two of Bailey’s three counts, all committed on March 18, 1995. In those two counts, Bailey was charged with (I) attempted first degree murder with a firearm, a life felony, and (II) attempted robbery with a firearm.

Pursuant to plea negotiations, the state amended count I of the information to charge attempted first degree murder, a first degree felony, omitting the firearm specifically so that Bailey could receive an enhanced sentence for count I as a habitual felony offender. Bailey entered no contest pleas to the two counts. The plea colloquy established that Bailey understood that he could be habitualized. He was sentenced on each of these two counts to twenty-five years as a habitual violent felony offender with a fifteen-year mandatory minimum. A firearm mandatory minimum was imposed only with respect to the second count.

In his motion, Bailey argued that the first count was reduced from a life felony to a first degree felony because he possessed a “handgun” instead of a “firearm”; however, because the two are synonymous as a matter of law, his first count was a life felony, which was not subject to habitualization at the time the offense was committed. Accordingly, he asked that his habitual offender sentence be vacated in favor of a non-habitual sentence. Bailey is not entitled to this relief; the prosecuting authority has the discretion to determine what level of offense is to be charged, and because the offense was amended to a first degree felony prior to entry of the plea, that was the offense to which Bailey pled.

First degree murder is a capital felony, see § 782.04(l)(a), Fla. Stat. (1993); and the attempt to commit a capital felony is a first degree felony, see § 777.04(4)(b), Fla. Stat. (1993). Without enhancing the offense, such as for use of a firearm, attempted first degree murder is not a life felony. See, e.g., Hall v. State, 855 So.2d 116 (Fla. 2d DCA 2003).

On a separate point in his motion, Bailey asserted that he could not legally receive a fifteen-year mandatory minimum for the attempted robbery with a firearm, a second degree felony, but could receive at most a ten-year mandatory minimum. This claim is correct. See § 775.084(4)(b)2., Fla. Stat. (1993); Ruffin v. State, 835 So.2d 272, 273 (Fla. 3d DCA 2002). We therefore reverse the trial court’s summary denial of the motion to this extent only, and remand either for correction of the mandatory minimum sentence in count II or for the attachment of portions of the record that refute this claim.

Affirmed in part, reversed in part, and remanded.

WARNER, POLEN and GROSS, JJ„ concur.

      . Bailey filed with this court a notice of supplemental authority citing Cook v. State, 866 So.2d 1291 (Fla. 4th DCA 2004), in which this court reversed the denial of a rule 3.800(a) motion to correct illegal sentence, holding that Cook's habitual offender sentence for the life felony of attempted first degree murder (without mentioning a firearm) was illegal, because the offense was committed on May 4, 1997, at a time when Chapter 95-182, the legislation making a life felony subject to ha-bitualization, was unconstitutional pursuant to State v. Thompson, 750 So.2d 643 (Fla. 1999). We take this opportunity to clarify the Cook opinion: although the opinion did not reflect it, the offense in that case in fact was the life felony of attempted first degree murder with a firearm.

      . Robbery with a firearm is a first degree felony, see § 812.13(2)(a), Fla. Stat. (1993), and the attempt to commit a first degree felony is a second degree felony, see § 777.04(4)(c), Fla. Stat (1993).


text:
    Ronald FRAZIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1522.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.

      Bennett H. Brummer, Public Defender and J. Rafael Rodriguez, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before GREEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

We find no merit to appellant’s arguments that the trial court failed to conduct an adequate Nelson inquiry and Faretta hearing or that the trial court abused its discretion in denying a juror’s request to take notes during the trial. Accordingly, we affirm the convictions.

The appellant also argues that the trial court erred in sentencing him to concurrent minimum mandatory life sentences as a prison releasee reoffender (PRR) and a violent career criminal. We disagree as to his sentence for robbery with a firearm but agree as to his sentences for two counts of carjacking with a firearm and attempted first degree murder with a firearm.

The Florida Supreme Court, in Grant v. State, 770 So.2d 655 (Fla.2000), held that although concurrent sentences as a PRR anda habitual felony offender did not violate double jeopardy, the imposition of such sentences did violate the PRR act itself. Citing to Walls v. State, 765 So.2d 733, 734 (Fla. 1st DCA 2000), the court stated:

[BJecause “section 775.082(8)(e) only authorizes the court to deviate from the [Act’s] sentencing scheme to impose a greater sentence of incarceration,” a trial court is “without authority to sentence [a defendant to an equal sentence] under the habitual felony offender statute,” even where such sentence is imposed concurrently with the PRR sentence. Thus, the trial court erred in imposing two concurrent, equal sentences in this case, not because such sentencing violated double jeopardy, but because it is not authorized by the Act.

Id. at 659; Bloodworth v. State, 790 So.2d 1032, 1033 (Fla.2001); Martin v. State, 813 So.2d 1036 (Fla. 3d DCA 2002); Watts v. State, 789 So.2d 547 (Fla. 3d DCA 2001).

Thus, pursuant to Grant, the appellant was properly sentenced for robbery with a firearm, a first degree felony. Under the PRR Act, a first degree felony is punishable by thirty (30) years imprisonment. See § 775.082(8)(a)2.b., Fla. Stat. (1997). As a violent career criminal, however, the appellant faced life imprisonment for this first degree felony. See § 775.084(4)(c)l., Fla. Stat. (1997). Since this life sentence as a violent career criminal was greater, the trial court’s imposition of the same was not error.

The trial court’s imposition of the concurrent life sentences for the two counts of carjacking was error because the sentence for each carjacking conviction under both the PRR Act and the Violent Career Criminal Act is life. As the State properly concedes, pursuant to section 775.082, a court may impose a concurrent sentence under section 775.084 only if it is a greater sentence. Since these sentences are equal, the appellant must be resen-tenced on these counts. See Rodriguez v. State, 863 So.2d 1287 (Fla. 3d DCA 2004); Miller v. State, 780 So.2d 277 (Fla. 3d DCA 2001); Martin v. State, 813 So.2d 1036 (Fla. 3d DCA 2002); Bromell v. State, 777 So.2d 438 (Fla. 4th DCA 2001).

Likewise, the appellant needs to be re-sentenced for his conviction of attempted first degree murder with a firearm. Pursuant to section 777.04(4)(b), an attempted capital felony is a first degree felony but not a felony punishable by life. In this case, however, since the jury found that the appellant used a firearm, the crime is reclassified as a life felony pursuant to section 775.087(l)(a). Consequently, his sentence under the PRR Act and Violent Career Criminal Statute would be life and thus equal. Therefore, he must also be resentenced for this conviction as well.

Accordingly, we affirm the appellant’s conviction and sentence for robbery with a firearm. However, we vacate his sentence for two counts of carjacking and one count of attempted first degree murder and remand for resentencing.

Affirmed in part and vacated and remanded in part.

      . See Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973).

      . See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).