author: WELLS, Judge.

text:
    Verena VON MITSCHKE-COLLANDE, and Claudia Miller-Otto, Appellants, v. Thomas KRAMER, et al., Appellees.
    No. 3D03-2440.
    District Court of Appeal of Florida, Third District.
    April 7, 2004.

      Hunter & Williams and Vanee E. Salter and Christopher N. Johnson, Miami, for appellants.
    Hogan & Hartson and Parker D. Thomson and Carol A. Licko and Stephanie L. Carman, Miami, for appellee.
    Before SCHWARTZ, C.J., and WELLS, and SHEPHERD, JJ.
   WELLS, Judge.

Verena von Mitsehke-Collande and Claudia Miller-Otto (collectively “the Heirs”), as the heirs of Siegfried Otto, appeal an order dissolving a lis pendens filed in conjunction with an action against Thomas Kramer for a bill of discovery and for imposition of a constructive trust. For the following reasons, we reverse.

In December 1991, Siegfried Otto entrusted $145 million to Kramer, then his son-in-law, to invest for Otto in Florida businesses and real estate. Otto ultimately lost confidence in Kramer and demanded immediate return of his money. In 1995, Otto and Kramer entered into a settlement agreement pursuant to which Kramer agreed to provide a complete accounting of the assets he had received from Otto and to surrender all assets entrusted to him by Otto. To this end, Kramer was to immediately return 20 million Deutsch Marks to Otto; to either surrender to Otto, or to pay the reasonable value of, certain real estate holdings in Florida (whether held individually or through interests in corporations); and to repay any amounts used by Kramer for private purposes.

Kramer made the initial DM20 million payment as agreed, but in July 1996, brought suit in Switzerland to nullify the settlement agreement. Otto counterclaimed seeking to enforce the agreement. While that action was pending, Otto died and the Heirs were substituted as plaintiffs.

On April 25, 2000, the Swiss trial court rejected Kramer’s attempt to invalidate the 1995 settlement agreement and entered a partial final judgment in favor of the Heirs awarding DM116,498,407 (plus interest) to the Heirs for the value of Miami Beach real estate identified in the 1995 settlement agreement. Recognizing that a value for “objects of art and the not invested assets or surrogates [acquired by Kramer with Otto’s funds]” could not be fixed until Kramer provided the account-ings that he had contractually agreed to supply as part of the 1995 agreement, the Swiss trial court ordered Kramer to submit complete statements of account to the court for consideration.

Kramer appealed this partial judgment thereby staying it.

In July 2000, the Heirs filed the instant action. Alleging that Kramer “as trustee” was obligated by the Swiss partial judgment enforcing the 1995 settlement agreement to return all assets, “or their surrogates,” the Heirs asked for declaratory relief and for imposition of a constructive trust on, among other properties, two parcels of property located on Star Island in Miami Beach. These two parcels were neither identified nor valued in the DM116,498,407 Swiss partial judgment. The Heirs subsequently amended their complaint to ask for a pure bill of discovery. They also recorded a lis pendens against the two Star Island parcels in conjunction with their constructive trust claim.

The action was dismissed, and the Heirs appealed.

While that appeal was pending, Kramer conveyed the two Star Island parcels to Skipworth Properties Ltd., an entity the Heirs argue is Kramer owned. Approximately six weeks after the transfer, this court reversed the dismissal order, abated the constructive trust claim pending finalization of the Swiss appeal, and authorized the Heirs to proceed with their claim for a bill of discovery. Otto’s Heirs v. Kramer, 797 So.2d 594, 597-98 (Fla. 3d DCA 2001).

Kramer then sought to remove the lis pendens, arguing that it had been dissolved when the action was dismissed and that the Heirs had failed to establish a nexus between these two parcels and the now abated constructive trust claim. The lis pendens was dissolved. The Heirs appealed again.

On December 18, 2002, this court reversed the order dissolving the lis pen-dens, concluding that the lis pendens had been reinstated upon reversal of the order dismissing the complaint and that “[a]ny-one acquiring an interest between the time of [its filing] and its reinstatement after appellate review, [took] ... subject to the lis pendens.” Vonmitschke-Collande v. Kramer, 841 So.2d 481, 482 (Fla. 3d DCA 2002) (citation omitted). Less than a month later, on January 9, 2003, a Swiss appellate court affirmed the Swiss partial final judgment in the Heirs’ favor. However, the Swiss judgment remained stayed while Kramer sought yet another Swiss appeal.

The following August, the Heirs moved to extend the lis pendens. Kramer opposed the extension claiming, for the second time, that the Heirs had failed to establish a nexus between the subject property and the abated constructive trust claim. The lis pendens was discharged once again, this time on the ground that the Heirs had failed to establish any nexus between the legal or equitable ownership of the Star Island property and their claim for a constructive trust against Kramer. The Heirs appealed. We reverse.

A lis pendens provides notice to future purchasers or encumbrancers of real property that “a suit [has been] filed that could affect title in [that] property.” Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla.l993)(emphasis added). This serves the purposes of protecting purchasers from unanticipated disputes, and of protecting those claiming an interest in the property from “intervening liens that could impair any property rights claimed and also from possible extinguishment of [any] unrecorded equitable lien.” Id. (emphasis added). In light of these purposes, a lis pendens predicated on an unrecorded document cannot be dissolved where the proponent can “establish a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.” Id. We find that the Heirs satisfied this requirement for two reasons.

First, the Heirs alleged in their complaint that Kramer occupied a position of trust to Otto; that Kramer breached that trust by using Otto’s funds to acquire property for himself; and that pursuant to Kramer’s 1995 agreement with Otto and the Swiss partial judgment enforcing it, Kramer is obligated to return all funds or assets derived from those funds to the Heirs, including the two Star Island parcels. These allegations state a viable claim for imposition of a constructive trust on these parcels. See Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 422 (1927)(noting that “a court of equity will raise a constructive trust and compel restoration where one, through actual fraud, abuse of confidence reposed and accepted, or through other questionable means gains something for himself which in equity and good conscience he should not be permitted to hold”); Socarras v. Yaque, 452 So.2d 992, 994 (Fla. 3d DCA 1984). Because the order discharging the lis pen-dens could jeopardize the Heirs’ unrecorded interest in the property at issue in this viable claim (and jeopardize the rights of subsequent purchasers or encumbrancers as well), we believe that a fair nexus was established:

The relevant question is whether alienation of the property or the imposition of intervening liens ... conceivably could disserve the purposes for which lis pendens exists. Where the answer is yes, fair ne^íüs must be found.

Chiusolo, 614 So.2d at 492 (footnote omitted); Acapulco Constr., Inc. v. Redavo Estates, Inc., 645 So.2d 182, 183 (Fla. 3d DCA 1994)(finding that “it was not the plaintiffs’ burden to establish their constructive trust claim ... but only to establish a ‘fair nexus’ between the apparent legal or equitable ownership of the subject property and the dispute involved in the instant lawsuit ... [which] requires ... [a] showing of only a good faith, viable claim .... ”); see also Christian v. Sanderhoff, 731 So.2d 804, 805 (Fla. 4th DCA 1999)(concluding that a proponent of lis pendens does not have to show a “substantial likelihood of success on the merits” or “establish his claim by the greater weight of the evidence” in order to demonstrate a fair nexus; rather, it is sufficient that the proponent demonstrate that, absent a lis pendens, his unrecorded claim against the property could be jeopardized).

Second, we find that the Swiss partial judgment interpreting and enforcing the 1995 settlement agreement, also establishes a fair nexus in this case. That judgment confirms that Kramer breached a fiduciary/trust relationship that he held with Otto, entitling the Heirs not just to the return of money but also to an accounting to identify additional funds and assets to which the Heirs may be entitled. See Aryeh Trading v. Trimfast Group, Inc., 778 So.2d 336, 337 (Fla. 2d DCA 2000)(confirming that fair nexus may be determined by a review of a complaint, a contract, and any other relevant evidence); Avalon Associates of Delaware Ltd. v. Avalon Park Associates Inc., 760 So.2d 1132 (Fla. 5th DCA 2000)(confirming that the contract at issue established a sufficient nexus between the property and the issues in the lawsuit to meet the standard to maintain a lis pendens).

Kramer successfully argued below that the Heirs could not demonstrate a fair nexus because the two Star Island properties were purchased in 1996, well after Kramer and Otto entered into 1995 settlement agreement, and because the Swiss partial judgment awarded only money. This is incorrect. The 1995 settlement agreement addressed more than just those properties identified at that time; it also obligated Kramer to account for additional funds and the assets acquired with them. This would include assets acquired with Otto’s funds after the 1995 agreement. Moreover, although the Swiss partial judgment does award a money judgment for certain assets identified in the 1995 agreement, it also obligates Kramer to account for all funds and assets obtained from Otto so that the Heirs may identify and value those assets not already accounted for and thereby obtain return of either the assets themselves or their reasonable value. Thus, contrary to Kramer’s suggestions, acquisition of the two Star Island parcels after the 1995 agreement and the entry of a partial money judgment did not preclude a showing of fair nexus.

Finally, we reject the notion that the Heirs failed to demonstrate a fair nexus because the Heirs failed to prove that these two parcels were purchased with funds obtained from Otto (that is, failed to trace Otto’s funds to these parcels). Aside from the fact that the Heirs are not required to prove their constructive trust claim at this juncture, the 1995 agreement and the Swiss partial judgment enforcing it impose the burden on Kramer, not the Heirs, to account for or trace Otto’s funds. Kramer has never done so and has avoided doing so by challenging the 1995 agreement in Swiss courts, thereby staying this obligation. This, coupled with an order precluding discovery of matters prior to January 1, 1996, has effectively stymied the Heirs’ ability to obtain the very evidence now found lacking. Under the circumstances, the Heirs cannot be faulted for failing to adduce this evidence.

Accordingly, we reverse.

      . Otto also brought suit in the Eleventh Judicial Circuit of Florida seeking to recover funds due under the settlement agreement. That action was dismissed without prejudice on grounds of forum non conveniens.

      . The trial court thereafter refused to permit the Heirs to take discovery on the issues raised in their abated constructive trust claim, the claim to which the lis pendens related. At Kramer's urging, the trial court limited discovery to federal tax records, bank account records, and those records evidencing Kramer's interests in each corporation and partnership named as a defendant in the action, from January 1, 1996 forward.

      . At the time the instant order discharging lis pendens was entered, the partial judgment had already been affirmed by one Swiss appeals court and was pending in another. Pri- or to oral argument in this case, the partial judgment was finally affirmed by the Swiss courts.

      . Kramer suggests that the Heirs waived the right to complain about the constrictions placed on discovery by not appealing these orders. Orders denying or limiting discovery are not, however, appealable in general. See Cruse v. Cruse, 373 So.2d 440, 441 (Fla. 3d DCA 1979)("We dismiss the appeal from the discovery orders for lack of jurisdiction, Fla. R.App. P. 9.130(a)(3), (4)(5) ...”); see also Duran v. MFM Group, Inc., 841 So.2d 500, 501 (Fla. 3d DCA 2003)("As a general rule, certiorari will not be granted to review an order denying discovery since any error in denying the requested discovery can be remedied on plenary appeal”).


source: Caselaw Access Project

author: COPE, J.

license: Public Domain

text:
    Billy LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2658.
    District Court of Appeal of Florida, Third District.
    April 7, 2004.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   COPE, J.

Billy Lee appeals his conviction for felony petit theft. We affirm.

I.

The State charged defendant-appellant Lee with felony petit theft and strong armed robbery by shoplifting at a Wal-greens Store. The store security guard testified that he saw the defendant place six or eight disposable cameras in a plastic bag and walk out of the store without paying for them. The store was equipped with a checkpoint alarm system, so when the defendant left the store, the unpaid-for merchandise caused the checkpoint alarm to go off.

The store security guard testified that he attempted to stop the defendant and the defendant struck him. The security guard apprehended the defendant and turned him over to the police. The state charged the defendant with felony petit theft, see § 812.014(3)(c), Fla. Stat. (2001), and based on the security guard’s account of the struggle with the defendant, strong armed robbery. See id. 812.13(2)(c), (3).

The jury acquitted the defendant of the strong armed robbery charge, but found the defendant guilty of the charge of felony petit theft. The defendant has appealed.

II.

The defendant first argues that the trial court erred in overruling a defense hearsay objection. After the defendant was apprehended, Miami-Dade County police officer Rodriguez came to the store. When he arrived, he spoke to the store security guard, Michael Batchler. The prosecutor asked:

Q. And what did he tell you?
[DEFENSE COUNSEL]: Objection. Hearsay.
THE COURT: Go ahead and answer the question.
The objection’s overruled.
A. Okay. He said basically that he observed the defendant pick up six onetime use Kodak cameras from that shelf, put it in a bag and exit the store without paying for them.

TR. 271.

In its brief here, the State has not made any argument that there was an applicable hearsay exception, so the objection should have been sustained. However, this was merely cumulative of the other testimony in the case and was harmless beyond a reasonable doubt.

The defense argues in substance that the only evidence there was a theft was the testimony of the store security guard. According to the defense, if the store security guard’s testimony were sufficiently undermined, the jury may have acquitted the defendant on the felony petit theft charge.

The defense argument rests on a false premise. To begin with, the bag of cameras was recovered at the scene and brought back to the store where Officer Rodríguez observed it. Furthermore, the fact that the defendant left the store with the merchandise and set off the checkpoint alarm was based on the testimony of other witnesses, not just the security guard. Thus, the objected-to statement by the officer was cumulative and harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).

III.

The defense next argues that the trial court erred in prohibiting defense counsel from calling its investigator to the stand to testify that a defense witness, Keon Nelson, had been intimidated.

Nelson was a stock clerk at the Wal-greens store who heard the Code One announcement and went outside. It appears that in a pretrial statement given to the state attorney’s office, Nelson testified that he and the security guard got into a car and chased the defendant. The defense was particularly interested in witness Nelson because his statement indicated that the security guard had initiated contact with the defendant and the defendant had not struck the security guard.

On the stand, however, witness Nelson testified that he could not identify the defendant. He also stated that there had been more than one shoplifting incident at the Walgreens Store and that he may have been confused about which incident involved the car chase. TR. 288-93.

After Nelson left the stand, the defense asked leave to add a witness to its witness list, Menachem Mayberg, an investigator for the public defender’s office. The defense proffered that the investigator had been in the hallway outside the courtroom where witness Nelson was waiting to be called. The investigator observed security guard Batchler sit next to Nelson and get “in his face,” that is, talk to Nelson in what appeared to be a very forceful manner. On a different occasion, the investigator observed the store manager speak to Nelson very quietly. In both instances the investigator could not hear what was being said.

The defense proffered that the investigator had spoken with Nelson about this camera theft incident on several occasions, including three days before the trial, and Nelson always had a clear recollection of the “camera incident.” The defense argued that the investigator’s observations strongly suggested that Nelson had been pressured to change his testimony to avoid any contradiction regarding whether the defendant had been apprehended in a foot chase, or a car chase. The defense suggested that this was a plausible explanation for witness Nelson’s failure to identify the defendant at trial.

The defense argued that such testimony by the investigator should be allowed under this court’s decision in Lopez v. State, 716 So.2d 301 (Fla. 3d DCA 1998). The court denied leave to add the investigator to the defense witness list, and the investigator did not testify.

Under the circumstances present here, we conclude that the ruling was correct. In Lopez, the entire panel agreed that Judge Sorondo’s concurrence established the correct procedure to follow in a situation like the one now before us. 716 So.2d at 308 (“Judge Sorondo’s concurring opinion addresses the question of what predicate should be laid in order to introduce evidence of third-party threats. Assuming for present purposes that the question of proper predicate is fairly subsumed within defendant’s point on appeal, we entirely agree with Judge Sorondo’s analysis and disposition of that issue.”).

Judge Sorondo’s concurrence states:

The correct procedure in these circumstances is to conduct a hearing outside the presence of the jury. During this hearing the witnesses should be questioned to establish whether they are afraid, and, if so, whether they have been threatened or intimidated. If the state, or the party seeking to explain the witness’s change of testimony, presents evidence of the existence of threats or intimidation, either from the witness’s testimony, through the testimony of third parties, or through some type of physical evidence such as tape recordings, then the same testimony can be presented to the jury. If requested, the trial court should instruct the jury that the evidence is being introduced solely for the purpose of explaining the witness’s change of testimony. If the party opposing the introduction of such evidence desires, the instruction can go further and advise the jury that they must not speculate as to the source of the threats because such information is unknown.

716 So.2d at 310-11 (footnotes'omitted).

In the present case the defense partially complied, because the defense was prepared to offer the testimony of the investigator outside of the presence of the jury. However, under Judge Sorondo’s concurrence, it would also be necessary for witness Nelson to be recalled to be questioned out of the presence of the jury, to determine if there was probative evidence of threats or intimidation such that the jury should be allowed to hear it. Since the defense proposed to call only the investigator, and not Nelson, the Lopez rule was not complied with and the trial court’s ruling was correct on the facts presented.

IV.

For the stated reasons, the conviction for felony petit theft is affirmed.

      . The crime date was November 9, 2001.

      . After the officer had observed the bag, the cameras were returned to the store inventory. This is not a case in which a theft was observed and then the authorities failed to recover the stolen property.

      . If possible in such a hearing the security guard and store manager should be questioned as well.


author: PER CURIAM. (concurring in part, dissenting in part).

text:
    Anthony SIMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3198.
    District Court of Appeal of Florida, Third District.
    April 7, 2004.
    Anthony Simon, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and SHEPHERD, JJ.
   PER CURIAM.

Affirmed.

SCHWARTZ, C.J., and SHEPHERD, J., concur.

COPE, J.

(concurring in part, dissenting in part).

Defendant-appellant Anthony Simon filed a motion to correct illegal sentence which argued, among other things, that the sentencing order on counts three through eight illegally imposed a firearm mandatory minimum sentence, when the defendant had been acquitted of the use of a firearm in the underlying crimes. The State’s response demonstrates that there is no illegal sentence, because the sentencing orders on counts three through eight contain a scrivener’s error. The oral pronouncement at sentencing was for mandatory minimum sentences under the habitual violent felony offender (HVFO) statute and no mandatory minimum sentences were imposed under the firearm statute.

I acknowledge that this disposes of the illegal sentence claim. Further, since the defendant is serving a life sentence with a mandatory minimum sentence of fifteen years as an HVFO on count one, the sentences on counts three through eight do not make a practical difference.

Nonetheless, the defendant is entitled to have the sentencing order corrected to accurately reflect the trial court’s oral pronouncement. The State suggests, and I agree, that we should remand for that purpose. It is true that the defendant can file another postconviction motion requesting correction of the scrivener’s error, but it would be more efficient for us to send it back to accomplish that purpose at this time.


author: PER CURIAM.

text:
    Immanuel JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1017.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Immanuel Johnson, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003).

FARMER, C.J., GUNTHER and WARNER, JJ., concur.


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    Jane Elizabeth ESPEJO-NORTON, Appellant, v. In re the ESTATE OF Dorothea MERRY, Appellee.
    No. 3D03-1576.
    District Court of Appeal of Florida, Third District.
    April 7, 2004.
    Campbell & Malafy and John Campbell, Miami, for appellant.

      Sheldon Zipkin, North Miami Beach, for appellee.
    Before SCHWARTZ, C.J., COPE and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Floyd v. Fed. Nat’l Mortgage Ass’n, 704 So.2d 1110, 1112 (Fla. 5th DCA 1998); Canzoniero v. Canzoniero, 305 So.2d 801, 803 (Fla. 4th DCA 1975). See also Estate of Bateman, 290 So.2d 528 (Fla. 3d DCA 1974)(record shows that executor made diligent efforts to locate heir).

COPE and SHEVIN, JJ., concur.

SCHWARTZ, Chief Judge

(specially concurring).

This is a fascinating case in which one of the two goddaughters who were the named residual devisees of the testatrix’s $400,-000.00-plus estate turned up several years after the estate had been closed, after she had quite erroneously been declared dead by the circuit court, and after all the proceeds had been distributed to the other devisee. Because, insofar as the record shows, diligent, although futile, efforts had been expended to find her, I must agree with affirmance of the order before us denying her motion to reopen the estate. See Estate of Bateman, 290 So.2d 528 (Fla. 3d DCA 1974); Phillips v. Ball, 1960 OK 145, 358 P.2d 193 (Okla.1960).

It should be pointed out, however, a separate action may now be successfully maintained against the other devisee to impose a constructive trust upon the half of the estate that that devisee received, but which in law and equity belongs to the appellant. As the Restatement says:

§ 126. Rights of Intended Payee or Grantee. Business Transaction.
(1) Where a person has paid money or transferred property to another in the erroneous belief, induced by a mistake of fact, that he owed a duty to the other so to do, whereas such duty was owed to a third person, the transferee, unless a bona fide purchaser, is under a duty of restitution to the third party.
:¡: * *
Illustrations:
2. A, administrator of B’s estate, pays money out of the assets of the estate to C, B’s brother, whom both A and C believe to be B’s sole relative. Later D, B’s son and next of kin, believed to be dead, appears. D is entitled to restitution from C. (e.s.)

Restatement (First) of Restitution § 126 comment c (1937). Accord Phillips, 1960 OK at 145, 358 P.2d at 193; Hewitt v. Hewitt, 17 F.2d 716 (9th Cir.1927); 31 Am.Jur.2d Executors and Administrators § 964 (2003). See also Kramer v. Freedman, 272 So.2d 195 (Fla. 3d DCA 1973)(constructive trust imposed on beneficiaries although direct attack on validity of will in probate court failed), cert. discharged, 295 So.2d 97 (Fla.1973).

      . The "missing" devisee, with the commonplace name of Dr. Jane Elizabeth Espejo Norton, was a physician admitted to practice in both California and Florida.


text:
    Nelson RICARDO, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 3D02-3160.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.

      Jones & Wolfe and K.P. Jones, Fort Lauderdale, for appellant.
    Stuart B. Yanofsky, for appellee.
    Before COPE, GODERICH and SHEVIN, JJ.
   PER CURIAM.

Nelson Ricardo appeals a summary judgment for United Auto Insurance Company on his claim for coverage under an automobile liability policy. We reverse for further proceedings.

On August 4, 2000, United issued a Personal Auto Policy to Ricardo with an effective date of August 4, 2000 to August 4, 2001. In February 2001, Ricardo was involved in a one-car accident in the covered automobile. However, due to the fact that a woman other than his wife was in the car at the time of the accident, Ricardo initially reported that the car was stolen. The true facts of the accident later came to light and Ricardo eventually pled guilty to making a false insurance claim. Later, Ricardo sought coverage under the “collision” portion of the policy, which United rejected, resulting in this suit.

Attached to the Complaint was a copy of what Ricardo believed was a copy of his policy, including a cover page which indicated that it was policy type “UAU 100 (11/99).” However, also attached to the complaint was a computer generated form, apparently created on the date of issuance of the policy number referred to in Ricardo’s complaint, which states: “Endorsements made part of this policy at time of issue: UAU 100 1/98.” Thus even as of the filing of the Complaint, there was at least a facial uncertainty as to whether United initially provided Ricardo with a correct copy of the policy it intended to issue to him.

Subsequently, in the course of discovery in this action United also produced a copy of the 11/99 policy to Ricardo and that policy was used in conjunction with the deposition of United’s representative. This created further confusion as to which policy controlled the facts of this case.

Eventually, United filed a Motion for Summary Judgment. In its Motion, United, for the first time took the position that Ricardo’s policy was not the “UAU 100 (11/99)” policy, but was instead the “UAU 100 1/98” referred to in the computer generated form attached to the Complaint. Ascertaining the correct policy is important because the policies contain different language regarding the consequences of misrepresentations.

In analyzing the consequences of fraud in connection with an insurance claim, the insurance policy language must be examined. The Florida Supreme Court has said:

[T]here are different versions of anti-fraud provisions that can be divided into three categories: (1) those that state that any misrepresentation will void the entire policy; (2) those that state that any misrepresentation as to a particular coverage voids coverage under that part; and (3) those that neither reference the “entire policy” nor “this coverage part.”

Flores v. Allstate Ins. Co., 819 So.2d 740, 748 (Fla.2002) (emphasis in original).

Under the “General Provisions” of the 1/98 policy, paragraph 10 states:

MISREPRESENTATIONS AND FRAUD
This policy may be void if “you”: a.) have concealed or misrepresented any material facts or circumstances concerning this insurance or the subject thereof; or b.) in any case of fraud, have attempted fraud or falsely sworn, touching upon any matter relating to this insurance or the subject thereof.

R. 171 (emphasis added). Thus, under the 1/98 policy, United would be entitled to summary judgment because under the quoted policy language, United is allowed to void the policy where the insured has “attempted fraud or falsely sworn, touching upon any matter relating to this insurance or the subject thereof.”

The analysis differs, however, if the 11/99 policy is controlling. It does not contain similar language. The “Misrepresentation and Fraud” language of that policy facially relates only to applications. R. 26.

The trial court granted summary judgment to United based on the language contained in the 1/98 policy and Ricardo has appealed. On appeal, Ricardo claims that there is a question of fact as to which policy was in force and that summary judgment for United was in error on that ground. We agree. It is not clear in the present record which policy was issued to Ricardo and thus which version of the policy is controlling. We therefore reverse and remand for further proceedings to determine which is the correct policy.

United argues alternatively that there is no coverage on account of another exclusion, exclusion 17, which excludes “Loss to your covered auto while it is being used in any illegal activity or fraudulent conduct (other than a traffic violation) in which ‘you’ or a family member are a willing participant.” R. 17 (emphasis in original); see R. 162. The exclusion does not apply because the car was not being used in illegal activity or fraudulent conduct.

For the stated reasons, the summary judgment is reversed and the cause remanded for further proceedings consistent herewith.

      . Had this been true, Ricardo would have been entitled to coverage under the "comprehensive” portion of the policy.


author: GODERICH, Judge.

text:
    Eric Lamont COX, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-755.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.

      Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, Douglas J. Glaid, Assistant Attorney General, and Venus Zilieris, Certified Legal Intern, for appellee.
    Before GODERICH, GREEN, and WELLS, JJ.
   GODERICH, Judge.

The defendant, Eric Lamont Cox, appeals from his convictions and sentences. We affirm.

The defendant was charged with burglary with assault or battery; battery on a person sixty-five years of age or older; and strong arm robbery. Prior to trial, the State filed a motion to rely on Williams rule evidence to prove identity. Specifically, the State sought to introduce a subsequent robbery that the defendant had committed.

At the Williams rule hearing, the victims of both the collateral robbery and the robbery at issue testified. The trial court ruled that the collateral robbery was admissible because the testimonies of both victims were “virtually identical.”

Following a trial where the collateral crime was admitted, the jury found the defendant guilty as charged. This appeal follows.

The defendant contends that the trial court abused its discretion by admitting the collateral crime. We disagree.

Pursuant to section 90.404(2)(a), Florida Statutes (2000), “[s]imilar fact evidence of other crimes ... is admissible when relevant to prove a material fact in issue, such as proof of ... identity ..., but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” In order to introduce a collateral crime to establish identity, the collateral crime and the crime at issue “must share some unique features suggesting the same perpetrator.” Black v. State, 630 So.2d 609, 618 (Fla. 1st DCA 1993), review denied, 639 So.2d 976 (Fla.1994); see also Williams v. State, 662 So.2d 419 (Fla. 3d DCA 1995)(“Proper Williams rule evidence is that which possesses ‘obvious and telling similarities’ to the crime charged.”) (citations omitted); Drake v. State, 400 So.2d 1217, 1219 (Fla.l981)(“A mere general similarity will not render the similar facts legally relevant to show identity.”).

Here, a careful review of the record indicates that both the collateral robbery and the robbery at issue share “unique features suggesting the same perpetrator.” Black, 630 So.2d at 618. Further, contrary to the defendant’s assertion, although there were dissimilarities between the two crimes, the collateral crime was properly admitted where the dissimilarities were insubstantial and the similarities were unique. See Chandler v. State, 702 So.2d 186, 194 (Fla.1997)(holding that although the collateral crime and crime charged were “not exactly the same,” collateral crime evidence still admissible where there were unique similarities between the two crimes), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998); Black, 630 So.2d at 617-18 (holding that collateral crime admissible to establish identity where similarities are substantial and dissimilarities are inconsequential); Gore v. State, 599 So.2d 978, 984 (Fla.)(holding that collateral crime admissible where “similarities are pervasive, and the dissimilarities insubstantial.”), cert. denied, 506 U.S. 1003, 113 S.Ct. 610, 121 L.Ed.2d 545 (1992). Accordingly, we affirm the defendant’s convictions and sentences.

Affirmed.

      . Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).


text:
    Israel VAZQUEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 3D03-307.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Israel Vazquez, for appellant.
    John D. Maher, Tallahassee, for Unemployment Appeals Commission.

      Before LEVY, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Israel Vazquez(“claimant”) appeals the Unemployment Appeal Commission’s (“Commission”) order dismissing his appeal. We reverse.

The claimant worked for H & D Electric Company and was let go on furlough after the employer determined that it did not have enough work for all its employees. The claimant filed a request for unemployment benefits which he received. Subsequently, a claims adjuster issued a determination that the claimant was disqualified from receiving benefits on the basis he voluntarily left his prior job. The adjustor held that the claimant was overpaid benefits and that he needed to repay the benefits in the amount of $2,475. The claimant filed a timely appeal and a hearing was scheduled.

The claimant did not receive notice of the hearing because notice was forwarded to his previous address. The claimant was unable to pick up his correspondence until after the scheduled hearing date. The Commission dismissed his appeal pursuant to Florida Administrative Code Rule 60BB-5.017(2), finding the claimant failed to show good cause for his failure to appear at the hearing.

Upon learning that his appeal had been dismissed, the claimant filed a timely request to reopen the case. A hearing was set for the claimant to show good cause why he did not appear at the first hearing and to determine whether an additional hearing on the merits should be set. The claimant appeared for the hearing but was unaware of his right to present evidence. The Commission found that the claimant failed to show good cause for proceeding with an additional hearing and reinstated the dismissal order.

It is well known and settled that unemployment compensation appeals are generally handled by the parties themselves without an attorney, assisted only by the appeals referee.” See Algor v. Florida Unemployment Appeals Com’n, 516 So.2d 1113, 1114 (Fla. 2d DCA 1987). The claimant has a right to a hearing to determine the factual issue of good cause and to prove, if he can, that he had good cause for not attending the hearing. Algor, 516 So.2d at 1114.

Accordingly, we reverse the order of the Commission, with instructions to remand the cause to the appeals referee for a proper hearing on the factual question of good cause.


text:
    John BALLESTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1588.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    John Ballester, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, LEVY and GREEN, JJ.
   PER CURIAM.

This is an appeal of an order denying the motion of defendant-appellant Balles-ter for postconviction relief under Florida Rule of Criminal Procedure 3.850. The proceeding below was an evidentiary hearing on remand from Ballester v. State, 781 So.2d 503 (Fla. 3d DCA 2001).

The trial court found that the defendant had shown good ground for relief from the time bar of Rule 3.850. See Demps v. State, 696 So.2d 1296 (Fla. 3d DCA 1997). The trial court denied the motion as being impermissibly successive and, alternatively, on the merits.

For simplicity we assume (without deciding) that there was no successiveness bar. On the merits, the trial court rejected the defendant’s claim that his trial counsel had been ineffective with respect to the issue of voluntary intoxication. We affirm because this ruling is supported by competent substantial evidence. See Machin v. State, 867 So.2d 514 (Fla. 3d DCA 2004). Further, the claim that trial counsel was ineffective for failing to advise the defendant of the potential consequences of future recidivism was correctly rejected on authority of Major v. State, 814 So.2d 424 (Fla.2002).

Affirmed.


text:
    Andrew MARC, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-528.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Andrew Marc, in proper person. Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, SHEVIN, and WELLS, JJ.
   PER CURIAM.

Affirmed. Foster v. State, 794 So.2d 731 (Fla. 3d DCA 2001).


text:
    Egnio A. GUTIERREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3401.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Egnio A. Gutierrez, in proper person.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before COPE, LEVY and GREEN, JJ.
   PER CURIAM.

Affirmed. Wright v. State, 869 So.2d 24 (Fla. 2d DCA 2004) (en banc); Urruchurtu v. State, 858 So.2d 387 (Fla. 3d DCA 2003).


text:
    Coley GARRETT, Jr., and Mary Garrett, his wife, Appellants, v. KUEHNE & NAGEL, INC., a foreign corporation, Appellee.
    No. 3D03-177.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Goldstein & Cohen, P.A.; Hersch & Talisman, P.A., and Patrice A. Talisman, Miami, for appellants.
    Douberley & Cicero and William M. Douberley, Miami, for appellee.
    Before LEVY and WELLS, JJ., and BARKDULL, THOMAS H., JR., Senior Judge.
   PER CURIAM.

Affirmed. See and compare Benjamin v. Biel, 831 So.2d 1227 (Fla. 4th DCA 2002); Barbour v. Brinker Fla., Inc., 801 So.2d 953 (Fla. 5th DCA 2001); Barton Protective Servs., Inc. v. Faber, 745 So.2d 968 (Fla. 4th DCA 1999); Joseph F. Maimone Sec. and Investigations, Inc. v. American Exp. Travel Related Servs., 598 So.2d 272 (Fla. 3d DCA 1992); Allstate Ins. Co. v. Shilling, 374 So.2d 611 (Fla. 4th DCA 1979).


text:
    B.A., Appellant, v. DEPT. OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-1877.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Maria A. Berry, for appellant.
    Calianne P. Lantz, Assistant District Legal Counsel, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See M.M. v. Dept. of Children and Family Services, 867 So.2d 573 (Fla. 3d DCA 2004).


text:
    STATE of Florida, o/b/o Vivian BOATSWAIN, Appellant, v. Freddie L. LYNN, Appellee.
    No. 3D03-1311.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.

      Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General (Tallahassee), and Denise L. Kelly, Assistant State Attorney, for appellant.
    John H. Lipinski, Hollywood, for appel-lee.
    Before GERSTEN, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Kroner v. Singer Asset Finance Company, L.L.C., 814 So.2d 454 (Fla. 4th DCA 2001).


author: COPE, J. GREEN, J.

text:
    Robert MORRIS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D03-2318.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for respondent.
    Before COPE, GREEN and FLETCHER, JJ.
   COPE, J.

Robert Morris petitions for a writ of prohibition by which he seeks to bar his trial on the charge of possession of a firearm by a convicted felon. The petition is well taken and we grant it.

I.

The defendant was charged with armed robbery, grand theft, attempted armed robbery, and possession of a firearm by a convicted felon. Count four, the firearm possession count, was severed prior to trial.

The case proceeded to trial on the charges of armed robbery, attempted armed robbery, and grand theft. The only issue at trial was whether the defendant had been correctly identified as the perpetrator of the holdup.

The two victims testified that they were walking in the Coconut Grove area of Miami when the defendant robbed them at gunpoint. The defense acknowledged that the victims had been robbed, but argued that the defendant was not the perpetrator. The defense emphasized the differences between the defendant’s actual appearance and the description given by victims at the time of the crime; the fact that no physical evidence connected him to the crime; and the fact that the defendant was not arrested until a week after the crime, not contemporaneously. The jury acquitted the defendant.

The State now seeks to proceed to trial against the defendant on the severed charge of possession of a firearm by a convicted felon. The defendant moved to dismiss, arguing that the State is collaterally estopped from trying the severed count where the jury in the first trial necessarily made a finding that the defendant did not commit the crimes. The trial court denied the motion and this petition followed.

II.

We conclude that the petition should have been granted and that the case is controlled by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In Ashe, three or four perpetrators robbed six participants in a poker game in the basement of a home. The State prosecuted Ashe for robbing victim number one. The identification evidence was weak, as the robbers had worn masks. The jury acquitted Ashe of robbing victim number one. The State then tried Ashe for the robbery of victim number two and convicted him.

The United States Supreme Court ruled that collateral estoppel barred the prosecution of Ashe for the robbery of victim number two. The Court held that the concept of collateral estoppel “is embodied in the Fifth Amendment guarantee against double . jeopardy.” 397 U.S. at 445, 90 S.Ct. 1189. The Court stated:

[T]he record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that [victim number one] had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of [victim number two] wholly impermissible.

Id.

That logic is directly applicable here. The only issue in the first trial of this defendant was whether the’ defendant had robbed the two victims. By its verdict the jury found that the defendant was not the robber. This finding bars the second prosecution, where that second prosecution is based on the claim that the defendant possessed a firearm during the very same armed robbery. See id.; see also Gragg v. State, 429 So.2d 1204, 1206-08 (Fla.1983); State v. Short, 513 So.2d 679, 681-82 (Fla. 2d DCA 1987).

The State argues that the decision in State v. Harwood, 800 So.2d 308 (Fla. 3d DCA 2001), supports the ruling below, but that is not so. In Harwood the defendant was charged with armed robbery and other offenses at his first trial, at which he was acquitted. Id. at 308. Thereafter the State proceeded against the defendant on the severed count of unlawful possession of a firearm by violent career criminal.

We held that collateral estoppel did not bar the second prosecution, based on the pertinent facts of that case. An examination of the briefs in Harwood reveals that in the first prosecution, the victims testified that they were robbed by the defendant in their home at gunpoint. The defendant testified that there was an encounter between him and the victims in their home, but that the victims owed him money and gave him money and property voluntarily. The jury acquitted the defendant. Against that factual background, we said collateral estoppel did “not bar prosecution of the severed count because the issue of whether the defendant possessed a firearm was not necessarily determined by the jury. The jury’s decision to acquit the defendant could have been grounded on an issue other than whether the defendant possessed a firearm during the incident.” Id. at 309 (citation omitted). Both sides in Harwood agreed that there was an encounter between the victims and the defendant but disagreed on what happened during the encounter. The acquittal was not dispositive of whether the defendant possessed a firearm during the encounter.

Here by contrast, the jury’s previous acquittal of the defendant necessarily concluded that no encounter occurred between defendant and the victims. That conclusion is dispositive of the firearm charge in this case.

For the stated reasons, the petition for writ of prohibition is granted.

FLETCHER, J., concurs.

GREEN, J.

(specially concurring).

I agree that the State is collaterally estopped from prosecuting the petitioner for the charge of possession of a firearm by a convicted felon after he was acquitted of armed robbery, grand theft, and attempted armed robbery involving the same criminal episode, but write separately to elaborate.

In Ashe, the United States Supreme Court concluded that collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. Thus, where an issue of ultimate fact has been determined by a valid and final judgment in a criminal case, that issue cannot again be litigated, between the same parties, in a future lawsuit. See 397 U.S. at 443, 90 S.Ct. 1189. Where a previous judgment of acquittal has been based upon a general verdict, a court must “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. at 444, 90 S.Ct. 1189.

However, Ashe was factually dissimilar from this case. In Ashe, the Court was confronted with the issue of whether the doctrine of collateral estoppel barred the subsequent prosecution of a defendant for armed robbery of a victim after this same defendant had been acquitted of armed robbery of another victim involved in the same episode. Id. at 438-40, 90 S.Ct. 1189. Specifically, in Ashe, six men were playing poker and robbed at gunpoint by several masked men. Id. at 437, 90 S.Ct. 1189. The defendant was charged as being one of the robbers. Id. at 437-38, 90 S.Ct. 1189. The State brought him to trial for armed robbery of one of the victims, and his defense was that of misidentifieation. Id. at 438, 90 S.Ct. 1189. He was acquitted. Id. at 439, 90 S.Ct. 1189. The State subsequently brought the defendant to trial for the robbery of another victim of the same incident, where he was convicted. Id. at 439^40, 90 S.Ct. 1189. The Supreme Court reversed, finding that once an earlier jury had determined, upon conflicting testimony, that there was at least a reasonable doubt as to whether the defendant was one of the robbers, the doctrine of collateral estoppel barred the State from relitigating the identification evidence in a second prosecution for the robbery of another victim in the hope that a different jury might find the same evidence more compelling. Id. at 445-46, 90 S.Ct. 1189.

The State in this case, however, is not, as in Ashe, attempting to separately prosecute the same charges on behalf of multiple victims. Rather, the State seeks to prosecute the petitioner for a separate crime which admittedly arose out of the same criminal episode, for which the petitioner was acquitted, but which requires separate elements of proof. The crime of unlawful possession of a firearm by a convicted felon, is a “victimless crime,” in the sense that society as a whole is deemed the victim, rather than the two individual victims of the armed robbery. See Nelson v. State, 195 So.2d 853, 855 (Fla.1967) (finding purpose of statute prohibiting possession of firearms by convicted felons is to protect the public). The elements of proof for this crime differ from those elements of proof of the crimes for which the petitioner was acquitted.

In this case, the petitioner was acquitted, pursuant to a general verdict, of armed robbery, attempted armed robbery, and grand theft. The State posits that it is therefore not collaterally estopped from prosecuting the petitioner for the severed charge of unlawful possession of a firearm by a convicted felon, claiming that this record does not show whether the jury’s acquittal was based on the petitioner’s mis-identification defense or on the minimal police investigation of the crime. The State points out that none of the stolen items or the weapon were ever retrieved and there was no evidence that the petitioner made a purchase with the proceeds of the victim’s $4,000 watch. It claims that these facts may have been the basis for the jury’s reasonable doubt. In support of its argument, the State cites to Ashe for the proposition that:

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’

See Ashe, 397 U.S. at 444, 90 S.Ct. 1189. Following Ashe, the Florida Supreme Court, in Gragg v. State, 429 So.2d 1204, 1206 (Fla.1983), held that “the test to determine whether collateral estoppel acts as a bar to further prosecution is not whether the factual issue in question was inherently decided by the jury’s prior verdict, but rather whether such factual issue was actually decided by the jury in reaching its verdict.”

Based upon Ashe and Gragg, the State appears to posit that because the jury could have based its acquittal solely on the dearth of evidence against the petitioner, the issue of whether the petitioner was unlawfully in possession of a firearm was not actually litigated. A review of the record evidence, however, refutes any such theory. At no time, in this case, did the defense ever dispute the fact that the victims were robbed at gunpoint. The defense merely disputed that the petitioner was the armed robber. In acquitting the petitioner, the jury must have concluded that the petitioner was not the armed robber. To accept the State’s theory that the jury might have decided this case on some other issue is to engage in the kind of speculation which the U.S. Supreme Court has cautioned against:

If a later court is permitted to state that the jury may have disbelieved substantial and uncontradicted evidence of the prosecution on a point the defendant did not contest, the possible multiplicity of prosecutions is staggering. * * * In fact, such a restrictive definition of ‘determined’ amounts simply to a rejection of collateral estoppel, since it is impossible to imagine a statutory offense in which the government has to prove only one element or issue to sustain a conviction.

Ashe, 397 U.S. at 444 n. 9, 90 S.Ct. 1189; see also Gragg, 429 So.2d at 1206-07 (holding that in collateral estoppel cases, courts should limit inquiry to whether factual basis exists for jury’s verdict).

Thus, based upon the record evidence in this case, the issue of identity in the first case is dispositive of the unlawful gun possession charge, and the State is legally foreclosed from proceeding with that prosecution. That is to say that now that a jury has determined that there is reasonable doubt that the petitioner committed the robbery, the State may not present the same or different identification evidence to' prove that the petitioner possessed a gun, when, according to the uncontested testimony at trial, the man who committed the robbery was the same man who possessed the gun.

The protections afforded by the double jeopardy clause are intended to provide finality for criminal defendants. Once a defendant has been found not guilty of a crime, he cannot be tried again for that same crime. The collateral estoppel doctrine is a corollary to that principle: once a defendant has successfully litigated a particular issue, the State cannot make him relitigate it. That is exactly what the State attempts to do here. A trial against the petitioner on firearm possession would amount to nothing more than another trial about whether the same two victims identified the right man. As the Supreme Court said in Ashe: “whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time.” 397 U.S. at 445-46, 90 S.Ct. 1189 (internal citations omitted).

For the above reasons, I agree that the petitioner’s request for writ of prohibition should be granted.

      . The defense closing argument included:

      Robert Morris did not commit the crime that he has been accused of.
      ... [W]hat happened to [the victims] was horrible. That is not an issue in this case. That fact is not in dispute, that they were violently robbed.... The only issue in this case is who is responsible for that.
      TR. 253-55.

      . To prove the crime of unlawful possession of a firearm by a convicted felon, the State needs to establish the following two elements beyond a reasonable doubt:
      1) The defendant has been convicted of a felony; and
      2) After the conviction, the defendant owned or had in his care, custody, possession; or control, a firearm.

        See § 790.23, Fla. Stat. (2001); Fla. Std. Jury Instr. (Crim.) 10.15.
      To prove robbery with a deadly weapon (or firearm), the State needed to prove beyond a reasonable doubt that:
      1) Defendant took the money or property described from the person or custody of the victim.
      2) Force, violence, assault, or putting in fear was used in the course of the taking.
      3) The property taken was of some value.
      4) The taking was with the intent to permanently or temporarily deprive the victim of his or her right to the property or any benefit from it, or appropriate the property to the defendant’s own use or to the use of any person not entitled to it.
      5)The defendant carried a deadly weapon (or firearm) in the course of committing the robbery.

        See § 812.13, Fla. Stat. (2001); Fla. Std. Jury Instr. (Crim.) 15.1.
      To prove grand theft in the third degree, the State needed to prove the following elements beyond a reasonable doubt:
      1) Defendant knowingly and unlawfully obtained the property of victim.
      2) He did so with intent to, either temporarily or permanently, deprive victim of his or her right to the property or any benefit from it or appropriate the property to the defendant's own úse or to the use of any person not entitled to it.
      3) The value of the property taken was $300 or more but less than $20,000.

        See § 812.014, Fla. Stat. (2001); Fla. Std. Jury Instr. (Crim.) 14.1.

      . In its opening statement, defense counsel said:
      The prosecutor was correct in his opening statement when he told you that on August 18, 2002, [the young man and the young woman] were victims. They were both victims of a robbery.
      He was incorrect, however, when he told you that Robert Morris was the person that committed this crime. What this case is about, folks, is misidentification.
      In closing argument, defense counsel stated:
      That fact is not in dispute, that [the victims] were violently robbed when they were walking to their home.... The only issue in this case is who is responsible for that.

      The State has not proved this case to you. They have proved that a crime was committed. They did not prove Robert Morris was the person that committed it.
      Even the prosecution, in closing, told the jury that identity was the only issue:
      As you know, the issue in this case has been ID. Let's go through some of the reasons why the identification in this case of Robert Morris is legitimate, and valid, and should be believed.
      Moreover, the defense declined to have the jury instructed on any lesser included charges.


text:
    Donald GRAINGER, Appellant, v. INDIAN RIVER TRANSPORT/ZURICH U.S., Appellees.
    No. 1D02-4776.
    District Court of Appeal of Florida, First District.
    April 19, 2004.

      Gary Boynton, Orlando and Bill McCabe, Longwood, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez and Silver, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

The claimant appeals an order denying his request for a neurological examination and his related motion for attorney fees. We reverse. The judge of compensation claims should have granted the requested examination and, because the claimant should have prevailed on that point, he is also entitled to attorney fees. In January of 2000, the claimant was diagnosed with right carpal tunnel syndrome, which the employer and carrier accepted as compen-sable. He underwent surgery for carpal tunnel release on his right hand on March 31, 2000. In May of 2000, he began treating with orthopedist Dr. Brian Barnard for complaints of migraine headaches, para-cervical muscle pain, numbness in his right arm, burning pain in the right forearm and hands, and tenderness in his right palm at the operative site of the carpal tunnel surgery. He continued treating with Dr. Barnard for a little more than a year.

In his notes from the claimant’s final visit in September of 2001, Dr. Barnard expressed the opinion that the claimant’s symptoms did not seem to be due to carpal tunnel syndrome. However, he recommended that the claimant have a neurological evaluation to determine whether there was such a relationship. Dr. Barnard stated that he “would like to see the [claimant] back if there is any indication of the symptoms being related to carpal tunnel syndrome.”

The claimant then filed a petition for benefits on January 15, 2002, seeking evaluation by a neurologist. Dr. Barnard was deposed in connection with the claim. He testified that he could not say within a reasonable degree of medical certainty that the claimant’s need for treatment by a neurologist was directly related to the compensable accident. He explained that he did not know the reason for the claimant’s symptoms and that a neurologist would be needed to make that determination.

On October 22, 2002, following the hearing on the petition for benefits, the judge of compensation claims entered an order denying the claim for a neurological evaluation and also denying attorney fees and costs. The judge found Dr. Barnard credible and accepted his opinions. However, he went on to find that the doctor’s referral to a neurologist was based on speculation alone, noting that there was no indication in the record to support the contention that the industrial injury was the major contributing cause of the need for the suggested evaluation.

The claimant correctly contends that he needed to show only that an evaluation was reasonably required by the nature of his injury to obtain an evaluation as to the etiology of his condition. He argues that the undisputed facts establish that a neurological evaluation was reasonably required by the nature of his injury. Because the purpose of the recommended neurological evaluation was to determine whether his ongoing symptoms were related to his carpal tunnel syndrome, the claimant maintains that he was entitled to the evaluation.

This argument is based primarily on our decision in Sumner v. Gardinier, Inc., 526 So.2d 1068 (Fla. 1st DCA 1988), which stands for the principle that the employer should be ordered to pay for a diagnostic test, when the purpose of the test “is to determine the cause of a claimant’s symptoms, which symptoms may be related to a compensable accident.” Sumner, 526 So.2d at 1070; see also Green v. Chromalloy-Turbocumbustor, 540 So.2d 874 (Fla. 1st DCA 1989). The correctness of an order refusing a medical evaluation “must be tested by whether the claimant adequately demonstrated that [the evaluation was] reasonably required by the ‘... nature of the injury....’ ” Sumner, 526 So.2d at 1070. If the claimant meets this burden, then the evaluation should be ordered. Id.; see also Green, 540 So.2d at 876; Prince v. Prince Ins. Servs., 556 So.2d 1195 (Fla. 1st DCA 1990).

On the evidence presented here, the judge should have granted the request for a neurological evaluation. Even if it is ultimately determined that the claimant’s symptoms were not caused by his carpal tunnel syndrome, the employer and carrier should have been ordered to pay for the evaluation to determine the etiology of his medical problem. It is the purpose of the diagnostic testing and evaluation, not the results thereof, that determines the com-pensability of such services. See Prince, 556 So.2d at 1196; Martinez v. Assoc, of Poinciana, 642 So.2d 118, 119 (Fla. 1st DCA 1994).

The employer and carrier attempt to distinguish the Sumner case by pointing out that the version of the workers’ compensation statute in effect at the time of Sumner made no formal provision for an independent medical examination. Therefore, the employer and carrier contend, it was proper for the court to award an evaluation by a urologist in Sumner, but only a request for an independent medical examination under the current statute was proper in the present case. This analysis, however, places form over substance. The reasoning behind the Sumner opinion remains valid, whether the claimant formally requests an independent medical examination or phrases his request as an “evaluation” with a given type of physician. The judge applied an incorrect standard when he ruled that the record did not show that the carpal tunnel was the major contributing cause of the need for the suggested evaluation. A claimant must establish a causal relationship between his injury and the compensable accident in order to secure treatment, but not to be entitled to diagnostic testing to determine the cause of his symptoms. See Kohout v. Benefit Administrators, 781 So.2d 1164, 1165 (Fla. 1st DCA 2001); Kentucky Fried Chicken v. Tyler, 716 So.2d 295 (Fla. 1st DCA 1998).

The claimant in the present case established through the testimony and medical records that the nature of his injury made the requested evaluation reasonably necessary to determine whether the industrial accident was the cause of his symptoms. See Sumner, 526 So.2d at 1070. Because this was demonstrably the purpose of the evaluation, the claimant was entitled to a diagnostic neurological examination.

For these reasons we reverse the order of the judge of compensation claims with instructions to grant the neurological examination and to award attorney fees on the petition for benefits.

Reversed.

WOLF, C.J., ERVIN and PADOVANO, JJ., Concur.


text:
    Leon Claude FOWLER, Appellant, v. GARY’S ORNAMENTAL and Protegrity Services, Inc., Appellees.
    No. 1D04-0421.
    District Court of Appeal of Florida, First District.
    April 19, 2004.
    Leon Claude Fowler, pro se, appellant.
    Cord Byrd of Rigell, Ring & Ardman, West Palm Beach, for appellees.
   PER CURIAM.

DISMISSED. See Mintz v. Broward Correctional Institute, 800 So.2d 343 (Fla. 1st DCA 2001) (holding that an order of a Judge of Compensation Claims which merely grants a motion to dismiss is a nonfinal and nonappealable order).

ERVIN, WEBSTER and DAVIS, JJ., concur.


text:
    COLONY INSURANCE COMPANY, Appellant, v. JOHNSON & JOHNSON, INC.; Commerce and Industry Insurance Company; and Steve Odiorne, d/b/a Odiorne Insurance Agency, Appellee.
    No. 1D03-5517.
    District Court of Appeal of Florida, First District.
    April 19, 2004.
    Hinda Klein and Doreen Lasch of Con-roy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellant.
    J. Andrew Bertron, Jr., J. Kendrick Tucker, and Mary K. Simpson of Huey, Guilday, Tucker, Schwartz & Williams, P.A., Tallahassee; Richard S. Kuhl and Daniel J. Lynn of Jackson and Campbell, Washington, D.C.; Richard B. Bush of Bush, Augspurger & Lynch, P.A., Tallahassee; and, Beverly Heckler-Smith of Fuller, Johnson & Farrell, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response and supplemental response to this Court’s order of February 13, 2004, as well as the appellee’s reply thereto, we hereby dismiss this appeal for lack of jurisdiction.

DISMISSED.

ALLEN, PADOVANO and HAWKES, JJ., concur.


text:
    Mary FRANKLIN, Appellant, v. SUNLAND/FLORIDA DEPARTMENT OF INSURANCE RISK MANAGEMENT, Appellee.
    No. 02-5141.
    District Court of Appeal of Florida, First District.
    April 19, 2004.
    Arthur C. Beal, Jr., of Arthur C. Beal, Jr., P.A., Tallahassee, for Appellant.
    Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Harrell v. Florida Construction Specialists, 834 So.2d 352 (Fla. 1st DCA 2003).

WOLF, C.J., PADOVANO and POLSTON, JJ., concur.


author: BROWNING, J.

text:
    GENERAL ELECTRIC, Appellant, v. DEPARTMENT OF TRANSPORTATION and Florida Drawbridges, Inc., Appellees.
    No. 1D03-0390.
    District Court of Appeal of Florida, First District.
    April 19, 2004.

      Donna E. Blanton and Jeffrey L. Frehn of Radey, Thomas, Yon & Clark, P.A., Tallahassee, for Appellant.
    Pamela S. Leslie, General Counsel and Gregory G. Costas, Assistant General Counsel, Attorney for Department of Transportation.
    David B. Mankuta and Margaret Z. Vil-lella of Atkinson, Diner, Sonte, Mankuta & Plouchas, P.A., Hollywood, Attorney for Florida Drawbridges, Inc.
   BROWNING, J.

Appellant seeks review of a final order summarily dismissing Appellant’s bid protests because its bid bonds were deficient. We agree with Appellant that Appellant did not have sufficient notice of the deficiency, and was not given a chance to correct any deficiency. Thus, we reverse without deciding whether the bonds were, in fact, deficient.

The dispute began when Appellee Florida Drawbridges was awarded three Department of Transportation (Department) contracts and Appellant filed three formal bid protests. With each protest, Appellant filed a required security bond, listing as principal on the bond “GE Industrial Systems.” Florida Drawbridges, the successful bidder, intervened in the three bid protest proceedings, held before the Division of Administrative Hearings (DOAH). Florida Drawbridges then filed motions for a summary recommended order in each case, on the ground that Appellant failed to list the proper principal on the bonds. After the three eases were consolidated, the ALJ recommended dismissal and the Department followed his recommendation.

On appeal, Appellant argues that it did not receive adequate notice of the deficiency in the bonds and, in the alternative, argues that the bonds were not deficient because GE Industrial Systems is the same entity as Appellant. Appellant is correct that notice and an opportunity to cure are required before a bid protest is dismissed solely due to a deficient bond. ABI Walton Ins. Co. v. Dep’t of Mgmt. Servs., 641 So.2d 967 (Fla. 1st DCA 1994). Appellees argue that ABI Walton is distinguishable because it interpreted section 287.042(2)(c), Florida Statutes, whereas the instant bonds were posted pursuant to section 337.11(5), Florida Statutes. However, the due process requirements outlined in ABI Walton apply to bid protests filed pursuant to both sections.

The Department argues that Appellant received sufficient notice of the deficiency from the motions for summary dismissal filed by Florida Drawbridges. However, this Court specifically stated in ABI Walton that the agency must give the protestor both notice of a bond deficiency and an opportunity to cure such deficiency. ABI Walton, 641 So.2d at 968 & 969. Thus, notice in the instant case is insufficient as it did not come from the Department, and such failure cannot be cured by the allegations of Florida Drawbridges’ motions for summary dismissal. Accordingly, Appellant is entitled to relief.

REVERSED and REMANDED to the Department for further proceedings consistent with this opinion.

BOOTH and PADOVANO, JJ., concur.


text:
    James A. CLEMMONS, M.D., and Ronnie B. Finch, Appellants, v. WASHINGTON COUNTY; Florida Board of County Commissioners; Northwest Florida Community Hospital; and, Northwest Florida Healthcare, Inc., Appellees.
    No. 1D04-0882.
    District Court of Appeal of Florida, First District.
    April 20, 2004.
    Mark D. Dreyer, Panama City, for Appellants.
    Nevin Zimmerman, Panama City, and Gerald Holley, Chipley, for Appellees.
   PER CURIAM.

The appellants have filed this appeal seeking review of an order entitled “Order Granting Defendants’ Motion to Dismiss.” This order determined that the court is required to sustain the decisions of the defendants, who are governmental entities. However, because this order does not enter judgment, this appeal is premature and must be dismissed for lack of jurisdiction. Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995). “To be appealable as a final order, an order must contain unequivocal language of finality.” See, e.g., Hoffman v. Hall, 817 So.2d 1057, 1058 (Fla. 1st DCA 2002).

KAHN, VAN NORTWICK and POLSTON, JJ., concur.


text:
    Sherron Hobbie HARGROVE, Jr., d/b/a B & H Contracting, Appellant, v. MEADOWS DEVELOPMENT OF NORTHWEST FLORIDA, INC., a Florida Corporation, Appellee.
    No. 1D04-0262.
    District Court of Appeal of Florida, First District.
    April 20, 2004.
    Mark A. Bednar, Pensacola, for Appellant.
    Lisa S. Minshew, Pensacola, for Appel-lee.
   PER CURIAM.

The appellant brought this appeal seeking review of an order styled as a “Final Summary Judgment.” This order granted a motion for summary judgment and stated that the appellant holds no right, title, lien, or interest in the subject property. However, because a related counterclaim arising out of the same construction project is still pending before the trial court, the instant order is not final nor is it a partial final judgment appealable pursuant to Florida Rule of Appellant Procedure 9.110(k). See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99-100 (Fla.1974); Howland v. DOT, 826 So.2d 1080 (Fla. 1st DCA 2002). Therefore, we must dismiss this appeal for lack of jurisdiction. See Fla. R.App. P. 9.030(b)(1).

DISMISSED.

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    Geoffery MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1454.
    District Court of Appeal of Florida, First District.
    April 20, 2004.
    Nancy Daniels, Public Defender, and Archie Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s revocation of his community control in a brief filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After reviewing the record, we affirm the revocation of the appellant’s community control in all respects, but the case is remanded with directions for correction of the order in accordance with this opinion.

The trial court’s order revoking appellant’s community control states that the appellant violated condition 5 by driving with a suspended or revoked license. However, in response to the appellant’s timely objection, at the revocation hearing the trial court agreed that the appellant could not have committed this offense because he did not possess any license at all. Since a written order of revocation must conform to the oral pronouncements made at the revocation hearing by the trial judge, Wood v. State, 682 So.2d 1217 (Fla. 1st DCA 1996), the trial court shall, upon remand, strike the finding of violation of condition 5, and correct the order of revocation of community control to accurately reflect the oral pronouncement made at the revocation hearing.

AFFIRMED AND REMANDED WITH DIRECTIONS.

WOLF, C.J., ERVIN and VAN NORTWICK, JJ., concur.


text:
    William OROZCO, Appellant, v. DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION and Risk Management, Appellees.
    No. 1D03-2076.
    District Court of Appeal of Florida, First District.
    April 20, 2004.
    Jerome Hurtak, Miami, for appellant.
    Sandra H. Mays, Tallahassee, for appel-lees.
   PER CURIAM.

Affirmed. James v. Armstrong World Ind., Inc., 864 So.2d 1132 (Fla. 1st DCA 2003).

WOLF, C.J., ERVIN and VAN NORTWICK, JJ., concur.


text:
    Mark DAVIS, Appellant, v. OKALOOSA COUNTY, Florida, Jerry Madden, and Dewey Madden, Jr., Appellee.
    No. 1D03-5420.
    District Court of Appeal of Florida, First District.
    April 20, 2004.
    Robert O. Beasley of Litvak, Beasley & Wilson, L.L.P., Pensacola, for Appellant.
    J. Andrew Talbert, Pensacola, and Gillis E. Powell, Crestview, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of January 21, 2004, the Court has determined that the order on appeal, which quiets title to specified property, is interrelated with the pending claims for trespass and nuisance contained in Counts II and III of the complaint. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); see also Howland v. State, 826 So.2d 1080 (Fla. 1st DCA 2002). Accordingly, the appeal is hereby dismissed as premature. The appellant’s Motion to Compel, filed on January 27, 2004, is denied as moot.

KAHN, VAN NORTWICK and POLSTON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Alexander TORRES, Appellee.
    No. 4D02-4292.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Garcia, 866 So.2d 124 (Fla. 4th DCA 2004).

WARNER, POLEN and MAY, JJ„ concur.


author: WARNER, J.

text:
    Jose Perez ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4424.
    District Court of Appeal of Florida, First District.
    April 21, 2004.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his conviction for attempted sexual battery on the ground that the trial court erred in admitting evidence pursuant to section 90.404(2)(b), Florida Statutes (2001), which provides a relaxed standard for admission of other acts of child molestation where a crime involving child molestation is charged. Appellant claims the statute is unconstitutional. We agree with the reasoning of McLean v. State, 854 So.2d 796 (Fla. 2d DCA 2003), which held the statute constitutional in cases, such as this, where identity of the perpetrator is not in issue. We affirm appellant’s conviction and sentence.

During appellant’s trial for sexual battery of his stepdaughter in the home, two other children testified that appellant had molested them when they spent the night at his home. Appellant objected, claiming that section 90.404(2)(b) was unconstitutional for violating both due process and ex post facto provisions of the constitution and permitting the introduction of irrelevant evidence. The trial court denied the motion and admitted the testimony. Appellant was convicted of three counts of attempted sexual battery.

Section 90.404(2)(b)1 provides that in criminal cases where a “defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.” This section was passed by the legislature in 2001 and was adopted by the supreme court as part of the Evidence Code. See In re Amendments to the Florida Evidence Code, 825 So.2d 339, 339-41 (Fla.2002). As noted in McLean, this section relaxed the requirements of Williams v. State, 110 So.2d 654 (Fla.1959), of striking similarity between the other wrongful act and the charged crime in child molestation cases. See McLean, 854 So.2d at 801. Although the supreme court itself had relaxed the standard in familial settings, see Heuring v. State, 513 So.2d 122, 124 (Fla.1987), the charged crime and the other wrongful acts were still required to have some shared similarities.

The new evidence code provisions relaxed the standard even further, allowing the admission of other wrongful acts of child molestation without limiting them to similar acts. Despite this broadening, in McLean the court held that the provision does not violate due process, finding that it is “virtually identical to Federal Rule of Evidence 414, which has withstood constitutional attack;” the trial court is still required to exclude testimony where the probative value is outweighed by the prejudicial effect; the introduction of the testimony is preceded by a cautionary instruction to the jury; and “case law still requires that such testimony not become a central feature of the trial.” 854 So.2d at 802. Although the court expressed a concern that such testimony is fraught with risks despite limiting instructions to the jury, especially where identity is an issue, at least where the issue of identity is not in dispute, the provision does not violate due process. Id. As identity is not an issue in this case, we also hold, under the reasoning of McLean, that the statute is constitutional.

Appellant also raises an ex post facto claim because he was accused of offenses occurring prior to the adoption of section 90.404(2)(b). McLean also disposed of this claim. A law violates the ex post facto clause by “altering] the rules of evidence in a manner that permits a conviction with less or different testimony.” Id. at 803 (citations omitted). The McLean court relied on Glendening v. State, 536 So.2d 212 (Fla.1988). That court noted “[t]he proscription against laws which affect the legal rules of evidence and receive less, or different, testimony in order to convict the offender has been construed as prohibiting those laws which “ ‘change the ingredients of the offence or the ultimate facts necessary to establish guilt’ ”, [whereas] “[c]hanges in the admission of evidence have been held to be procedural.” 536 So.2d at 215 (quoting Miller v. Florida, 482 U.S. 423, 433, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987)). On this basis it found that section 90.803(23), involving a hearsay exception for child victim statements, was procedural because “ ‘[t]he crime for which the present defendant was indicted, the punishment prescribed therefore, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by’, the enactment of’ the statute. Id. (quoting Hopt v. People, 110 U.S. 574, 589-90, 4 S.Ct. 202, 28 L.Ed. 262 (1884)). This same reasoning was applied in McLean to reach the conclusion that section 90.404(2)(b) does not violate the ex post facto clause because it is a procedural change. See McLean, 854 So.2d at 803. We adopt McLean’s reasoning.

The trial court carefully and repeatedly instructed the jury as to how to use this Williams rule evidence. It did not become a feature of the trial. The trial court did not err in admitting this evidence.

We affirm the remaining issues without further discussion. We also certify the same question regarding the constitutionality of section 90.404(2)(b) as was certified in McLean. See id. at 803-04.

POLEN and KLEIN, JJ., concur.


author: FARMER, C.J.

text:
    Sainovul SAINTILUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2592.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Barbara A. Zappi, Assistant Attorney General, Fort Lauderdale, for appellee.
   FARMER, C.J.

Defendant appeals his conviction because of improper and prejudicial evidence used against him by the state. We reverse his conviction because the trial court erred in allowing detectives to testify as to hearsay statements identifying defendant as the perpetrator.

The crimes occurred in mid-morning in front of a bank. The victim was shot during a struggle with an assailant over a bank deposit bag and was in a coma for several weeks. When he awoke from the coma, he identified defendant from a photo array as his attacker. A few months later, he identified defendant in a live lineup. And three other witnesses identified him in a photo lineup. Yet six other witnesses could not identify him. No physical evidence linked him to the crime. He asserted an alibi defense at trial, that he was at home on the morning of the crime watching television and playing games with his girlfriend and his friend Billy.

At trial during the state’s case, the prosecutor questioned a police officer who had investigated the case and compiled the photo lineup. The following exchange occurred:

State: On your investigation interviewing witnesses, did you get a possible suspect, a nickname who could be in this case?
Witness: Yes, I did.
Defense: Objection to the hearsay, Judge.
State: For purposes of identification, Judge, it’s not hearsay.
Court: Overruled.
State: What was the nickname you received?
Witness: TuTu.

Meanwhile another detective testified that he attempted to “try and identify two individuals whose names were given as Tutu and Eric.” Over a hearsay objection, he testified that someone from the police identified “Tutu” as defendant.

The testimony of the two detectives was inadmissible under a number of cases. See, e.g., Wilding v. State, 674 So.2d 114, 118-19 (Fla.1996), receded from on other grounds by Devoney v. State, 717 So.2d 501 (Fla.1998); Conley v. State, 620 So.2d 180 (Fla.1993); State v. Baird, 572 So.2d 904 (Fla.1990); Hurst v. State, 842 So.2d 1041 (Fla. 4th DCA 2003); Stribbling v. State, 778 So.2d 452 (Fla. 4th DCA 2001).

In spite of substantial authority condemning this attempt to adduce prejudicial hearsay, the state often persists in offering this kind of hearsay to explain the “state of mind” of the officer who heard the hearsay, or to explain a logical sequence of events during the investigation leading up to an arrest. This type of testimony occurs with the persistence of venial sin. The state’s insistence on attempting to adduce this particular brand of hearsay requires trial judges to be constantly on their guard against it.

The essence of the officer’s testimony here was that unnamed witnesses had identified someone named Tutu as being involved in the robbery. Another detective sought to establish that Tutu was in fact the defendant, based on information he received from still other police officers. The only purpose of this testimony was to admit these hearsay statements to link defendant to the crimes, even though such hearsay is clearly inadmissible. For as we have explained,

“[wjhere the implication from in-court testimony is that a non-testifying witness has made an out-of-court statement indicating a defendant’s guilt offered to prove the defendant’s guilt, the testimony is not admissible.”

Schaffer v. State, 769 So.2d 496, 498 (Fla. 4th DCA 2000).

The state argues that the testimony was admissible to “show why the officer prepared an array of photographs which included the defendant’s photograph.” But a “police officer’s state of mind is generally not a material issue in a criminal prosecution.” Baird, 572 So.2d at 907. Nor is it necessary for the police to show why they prepared an array of photographs or even, necessarily, why they included a defendant’s photo in the group. If this testimony is not being offered for the truth of its contents — as evidence of defendant’s guilt — plainly it is not admissible because it is irrelevant.

This case is very similar to Wilding. There, the prosecutor was allowed to ask the lead detective in a murder investigation if he had received an anonymous tip that named the defendant in connection with the murder. 674 So.2d at 118. The argument for admissibility was that the testimony was relevant “to show the logical sequence of events regarding the murder investigation.” 674 So.2d at 118. The supreme court found that such testimony went beyond that authorized in Baird:

“In Baird, we held that it was error for an investigator to testify that he received information that the defendant, who was on trial for racketeering and bookmaking, was a major gambler and operating a major gambling operation in the area. We explained:
[Wjhen the only purpose for admitting testimony relating accusatory information received from an informant is to show a logical sequence of events leading up to an arrest, the need for the evidence is slight and the likelihood of misuse is great. In light of the inherently prejudicial effect of an out-of-court statement that the defendant engaged in the criminal activity for which he is being tried, we agree that when the only relevance of such a statement is to show a logical sequence of events leading up to an arrest, the better practice is to allow the officer to state that he acted upon a “tip” or “information received,” without going into the details of the accusatory information.
572 So.2d at 908.
“We recognize that the information received in the tip in this case was not detailed to the jury to the same extent as was the information received in Baird. However, similar evils are involved in both cases.”

Wilding, 674 So.2d at 118-19; see also Tumblin v. State, 747 So.2d 442, 444 (Fla. 4th DCA 1999) (holding it was improper to allow officer to testify that he arrested defendant after talking with a non-testifying eyewitness); Trotman v. State, 652 So.2d 506, 507 (Fla. 3d DCA 1995) (finding that trial court erred in permitting officer to testify that he went to the location of crime and arrested defendant after speaking to unidentified, non-testifying witness).

In Boykin v. State, 601 So.2d 1312 (Fla. 4th DCA 1992), we found similar testimony harmless. We do not find these errors to be harmless in this case because of the conflicting testimony over the identification of the perpetrator of the robbery. In many cases we would find such testimony as was adduced here to be prejudicial.

REVERSED FOR NEW TRIAL.

GUNTHER and GROSS, JJ., concur.


author: GROSS, J.

text:
    FREEDOM INSURORS, INC., a Florida corporation, Appellant, v. M.D. MOODY & SONS, INC., a Florida corporation, Appellee.
    No. 4D03-2831.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.

      Steven M. Pincus of C. Brooks Ricca, Jr. & Associates, P.A., West Palm Beach, for appellant.
    Lawrence Bunin of Lawrence Bunin, P.A., Plantation, and Bradshaw Lotspeich, Miami Beach, for appellee.
   GROSS, J.

Appellant, Freedom Insurers, Inc. appeals the circuit court’s order staying a writ of garnishment, but not dissolving it. We affirm. The trial court followed precedent in staying a garnishment proceeding once a supersedeas bond became effective.

Appellee, M.D. Moody & Sons, Inc., recovered a final judgment against Freedom for $526,634.88, after taking into account a partial satisfaction of judgment. Freedom timely appealed the judgment. On April 15, 2003, Freedom obtained a supersedeas bond in the amount of $589,831.06 in favor of Moody through Machinery Insurance, Inc. However, Freedom did not file the bond with the clerk of the circuit court.

On May 9, 2003, Moody filed a motion for writ of garnishment. The writ issued and was served on the garnishee, Regions Bank, which answered on June 9 that it had $39,481.54 of Freedom’s property in its possession. On June 13, 2003, Freedom moved to dissolve the writ, arguing that by posting the bond, it was entitled to an automatic stay pending appellate review. Also on June 13, Freedom filed the supersedeas bond with the clerk of the circuit court.

On the motion to dissolve, the circuit court ruled: “The writ of garnishment is stayed, but not dissolved. The amount of the supersedeas bond may be reduced by $39,481.54.”

Freedom argues that the automatic stay provided for in Florida Rule of Appellate Procedure 9.310(b)(1) became effective on April 15, 2003, when it obtained the bond.

We hold that the stay did not become effective until Freedom filed the bond with the clerk on June 13, 2003. Freedom did not “post” the bond within the meaning of rule 9.310(b)(1) when it obtained the bond on April 15; “posting” requires the further act of filing the bond with the clerk of the circuit court.

Rule 9.310(b)(1) states that a party may obtain an automatic stay pending review, by “posting a good and sufficient bond.” The rule also states that multiple parties having common liability may “file a single bond.” The rule should not be read to create a different procedure for single and multiple parties. The act of filing a bond requires service of the bond on all parties. See Fla. R.App. P. 9.420(b). Without such service, the parties might be unaware that an automatic stay has gone into effect.

For the purpose of determining the moment when an automatic stay becomes effective under rule 9.310(b)(1), case law has treated “posting” as a synonym for “filing,” which rule 9.420(a)(1) defines as filing with the clerk or the court. See Mellon United Nat’l Bank v. Cochran, 776 So.2d 964 (Fla. 3d DCA 2000) (indicating that “[n]o notice of appeal, motion for stay or supersedeas bond was filed by [the individual party]”) (emphasis added); City of Miami v. Arostegui, 616 So.2d 1117, 1120 (Fla. 1st DCA 1993) (observing that under rule 9.310(b)(1), the “filing of the appropriate bond triggers the automatic stay”).

The effect of perfecting a super-sedeas is that it “stays further proceedings, but does not interfere with what has already been done.” Thalheim v. Camp Phosphate Co., 48 Fla. 190, 37 So. 523, 525 (1904). As the supreme court has explained:

A supersedeas has the effect to suspend all further proceedings in relation to the judgment, but it does not, like a reversal, annul it. Being preventive in its effect, it does not undo or set aside what the trial court has adjudicated, but simply stays further proceedings in relation to the judgment appealed from until the appellate court acts upon the decision of the lower court.

Bacon v. Green, 36 Fla. 313, 18 So. 866, 869 (1894).

Given the supreme court’s characterization of the effect of a supersedeas, the proper remedy in this case was to stay the garnishment proceeding once the superse-deas went into effect on June 13. See Fla. Steel Corp. v. A.G. Spanos Enters., Inc., 332 So.2d 663, 664-65 (Fla. 2d DCA 1976) (holding that where judgment has been superseded pending appeal, a garnishment proceeding directed at that judgment should be stayed, and not dissolved); see also GEICO Fin. Servs. v. Kramer, 575 So.2d 1345, 1347 (Fla. 4th DCA 1991) (following Fla. Steel); Richard’s Paint Mfg., Co. v. Onyx Paints, Inc., 394 So.2d 1064, 1066 (Fla. 4th DCA 1981) (same). This is what the circuit court did; the court accommodated Freedom by reducing the amount of the bond by the amount held in the garnishment.

We reject Freedom’s argument that the circuit court did not have jurisdiction to issue the writ of garnishment because of the language of the final judgment. See Friedman v. Friedman, 825 So.2d 1010, 1011 (Fla. 4th DCA 2002) (“There is no need, either for purposes of finality, or for obtaining a writ of execution, for a money judgment to provide for execution to issue .... Execution only needs to be addressed if the court wishes to stay execution.”); Kramer, 575 So.2d at 1346 (finding that executory language in a final judgment is not essential to the finality of the judgment).

AFFIRMED.

WARNER and STEVENSON, JJ., concur.


text:
    K.P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-745.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.

      John H. Lipinski of The Law Office of J.H. Lipinski, Esquire, P.A., Miami, for appellant.
    -Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, K.P., raises four issues on appeal, the first three of which we find to be without merit. On the fourth issue, the record indicates that the trial court “reserved” on the issue of restitution but that a clerical error exists on the disposition order which indicates restitution was ordered. We remand for correction of the disposition order.

AFFIRMED and REMANDED FOR CORRECTION OF CLERICAL ERROR.

FARMER, C.J., GUNTHER and HAZOURI, JJ., concur.


text:
    Vandairy CLECKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1054.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Dejesus v. State, 862 So.2d 847 (Fla. 4th DCA 2003).

WARNER, POLEN and MAY, JJ., concur.