author: PADOVANO, J.

text:
    David J. WEISS and Parillo, Weiss & O’Halloran, Appellants, v. Gerald L. LEATHERBERRY, Appellee.
    No. 1D02-4800.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2003.
    Rehearing Denied Jan. 21, 2004.

      Richard Burton Bush and Patricia A. Lynch of Bush, Augspurger & Lynch, P.A., Tallahassee; Robert C. Bauroth of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for Appellants.
    James F. McKenzie of McKenzie & Taylor, P.A., Pensacola, for Appellee.
   PADOVANO, J.

This is an appeal from a summary judgment for the client in a suit against his lawyer for legal malpractice. The action was initiated according to the terms of an agreement between the client and the injured party in a previous case. We conclude that the agreement is the equivalent of an assignment of the malpractice claim. Because a legal malpractice claim is not assignable under Florida law, the purported assignment in this case is void and the action cannot be maintained in its present form. We reverse the judgment for the client and remand the case to the trial court to determine how the parties intend to proceed in the absence of the agreement.

The present controversy began at the conclusion of a previous case involving the negligent operation of a motor vehicle. Gerald Leatherberry failed to yield the right of way, and the car he was driving struck a car driven by Margaret Green. There appears to be no dispute that Leath-erberry was at fault. Green sustained injuries as a result of the collision and she sued Leatherberry for damages.

Green’s lawyer, James McKenzie, served a proposal for settlement on January 23, 1997, in the amount of $100,000.00. Leath-erberry was represented by David Weiss, the lawyer his insurance company provided. Weiss accepted the proposal for settlement on Leatherberry’s behalf and communicated the acceptance in a letter faxed to McKenzie on February 24, 1997. On the same day, McKenzie sent a letter to a lawyer in Weiss’ firm revoking the proposal for settlement. The revocation letter was transmitted by United Parcel Service overnight delivery. Although McKenzie received the acceptance letter before Weiss received the revocation letter, the original of the acceptance was not filed in the court file.

After Weiss communicated the acceptance of the proposal for settlement, Leatherberry sought an opinion from another lawyer, Arthur Shimek, regarding the offer. On February 27, 1997, Shimek wrote to Weiss to inform him that he was not to accept any offer on Leatherberry’s behalf without written authorization. Shi-mek wrote in his letter, “Mr. Leatherberry denies that he authorized you to accept the offer of judgment.”

At that time, McKenzie evidently believed that Green was bound by the acceptance. McKenzie wrote a letter to the trial judge on March 3, 1997, requesting cancellation of the upcoming trial and pretrial conference. He stated in this letter that the defense attorney “has now filed an acceptance of the plaintiffs offer of judgment.” He explained later that he thought the original of the acceptance had been filed in the court file.

Over the course of the next few months Shimek engaged in conversations with Weiss and McKenzie to determine whether the proposal for settlement was in Leath-erberry’s best interest. The parties were unsuccessful at mediation and they continued to prepare the case for trial as if the settlement might not come to fruition. As the trial date approached, the relationship between Shimek and Weiss began to deteriorate. Shimek expressed the view that Weiss was not acting in Leatherberry’s best interest, which prompted Weiss to file a motion to withdraw as counsel. This motion was denied.

One week before the trial, Shimek sent a letter to Leatherberry’s insurance carrier recommending that it should attempt to enforce the settlement. Weiss then filed a motion in which he contended that the proposal for settlement had been accepted and should be enforced. A hearing was held on the motion on January 16, 1998. McKenzie’s partner, Daniel Soloway, argued that the proposal had not been properly accepted because the original of the acceptance was not filed in the court file on or before the thirtieth day, February 24, 1997, as required by section 768.79, Florida Statutes. He also argued that there was a dispute as to whether Leather-berry had authorized the acceptance.

The trial judge agreed with Soloway and held that the parties did not have an enforceable settlement agreement. Following the denial of the motion, the case was tried before a jury and a verdict was returned in favor of Margaret Green. After appropriate adjustments, the verdict resulted in a judgment against Leatherberry for $977,773.51.

Leatherberry appealed to this court, contending that the trial court erred in setting aside the settlement agreement without conducting an evidentiary hearing. Green restated her argument that the acceptance was invalid because it had not been filed in the court file. During the oral argument, one of the judges on the panel pointed out that rule 1.442 of the Florida Rules of Civil Procedure does not require the filing of an acceptance with the court. Leatherberry could have taken the position that rule 1.442 would prevail on a procedural matter such as this and would therefore take precedence over the contrary provisions in section 768.79, Florida Statutes, but he did not make this argument in the trial court or on appeal. Ultimately, the court rejected Leatherberry’s contention that the trial judge had erred in declining to enforce the settlement and it affirmed the judgment for Green. See Leatherberry v. Green, 741 So.2d 501 (Fla. 1st DCA 1999).

After the judgment had been affirmed, Green and Leatherberry entered into an agreement. On January 7, 2000, they made a written contract that required Leatherberry to immediately pursue a legal malpractice claim against Weiss and his law firm, and to assign all of the benefits from the lawsuit to Green. In return, Green agreed that she would not execute her judgment against Leatherberry’s assets as long he diligently pursued the malpractice claim and cooperated with attorney Daniel Soloway in the prosecution of the claim.

As agreed, Leatherberry filed a legal malpractice claim against Weiss and his law firm. Both sides moved for summary judgment in the case. The plaintiffs counsel argued that Weiss should have filed the acceptance in the court file and, at the least, he should have argued that filing with the court was not necessary under the rule. This argument was supported by the affidavits of two other lawyers who rendered opinions that Weiss’ performance fell below the applicable standard of care.

• Counsel for the defense maintained that the plaintiffs motion for summary judgment should be denied on the ground the agreement was an invalid attempt to assign a malpractice claim. He also argued that Leatherberry should be estopped by his own conduct from claiming that he had an agreement, and that there were disputed issues of fact on the claim of legal malpractice. Counsel for attorney Weiss did not present affidavits refuting the assertion that Weiss had departed from the standard of care.

The trial court determined that there was no dispute as to any material issue of fact and rendered summary judgment for the plaintiff, Leatherberry. The court also determined that the matter of damages could be computed simply by deducting the amount of the offer from the amount of the judgment. After adjusting for post-judgment interest, the trial court rendered a judgment in favor of Leatherberry and against Weiss and his firm in the amount of $1,262,552.51. This judgment has become the subject of the present appeal.

We have serious reservations about the propriety of resolving the claim in this case by summary judgment. A jury could reasonably find that the loss was caused by Leatherberry’s own conduct and not by any negligence on the part of his lawyer. It would be difficult for Leatherberry to maintain that he had an enforceable settlement agreement when he has insisted all along that he did not authorize Weiss to accept the proposal. A jury might also conclude that the outcome would have been different had Leatherberry not waited until the week before the trial to seek enforcement. In March of 1997, Green’s own lawyer thought the parties had a binding agreement. Perhaps it would have been finalized if attorney Shimek had not interceded to make the point that Weiss lacked authority and to continue the discussions about the settlement.

Negligence cases often present fact-intensive issues of causation and this one appears to be no exception. However, we need not determine whether the summary judgment should be reversed on the ground that there were disputed issues of material fact, because we have concluded that there is a much more fundamental problem with the judgment in this case. The action against Weiss was asserted by the terms of an agreement that is tantamount to an assignment of a claim for legal malpractice. Because a claim for legal malpractice is not subject to assignment, the action cannot be maintained under the agreement, and the judgment must be reversed.

Florida courts follow the majority rule that a cause of action for legal malpractice is not assignable. See Forgione v. Dennis Pirtle Agency, 701 So.2d 557 (Fla.1997); Washington v. Fireman’s Fund Insurance Co., 459 So.2d 1148 (Fla. 4th DCA 1984). This rule is predicated upon the unique relationship between the lawyer and client. An injury resulting from an attorney’s negligence in the representation of a client is personal to the client. Consequently, a cause of action arising from the breach of a lawyer’s duty to a client can only be asserted by the client.

The rule that a legal malpractice claim cannot be asserted by third party is based on strong public policy considerations and it has been applied even in the absence of a formal assignment of the claim. For example, in National Union Fire Insurance Company v. Salter, 717 So.2d 141 (Fla. 5th DCA 1998), the court held that an insurance company could not pursue a legal malpractice claim under its right of subrogation. The court held that the reasons for prohibiting the assignment of legal malpractice claims apply with equal force to subrogation claims. In either case, the claim would be asserted by a party having no relationship with the lawyer and no true interest in the quality of the representation provided by the lawyer.

The agreement in the present case does not purport to be an assignment of the cause of action, but it has the same effect. Green traded her right to execute her judgment against Leatherberry for the right to obtain the proceeds of Leatherber-ry’s malpractice suit against Weiss. Leatherberry was the plaintiff in the suit, at least nominally, but he had no control over the litigation. The agreement required him to pursue the case and cooperate with a lawyer selected by Green as a condition of avoiding the execution of Green’s judgment against him. The lawyer in question is one of the lawyers who represented Green in the previous negligence suit and helped to obtain Green’s judgment against Leatherberry.

Counsel for Leatherberry relies on the decision in Kozich v. Shahady, 702 So.2d 1289 (Fla. 4th DCA 1997), but that case is distinguishable. Mr. Kozieh assigned the “right to a jury award” in a personal injury case to his brother and, thereafter, initiated an action for malpractice against the lawyers representing him in the case. The lawyers argued that Kozieh lacked standing to assert a malpractice claim because he no longer had any interest in the underlying case. The court concluded that this arrangement was not an assignment of a legal malpractice claim, because Kozieh retained “the ability to control the conduct of the trial, to accept or reject any settlement offers, and to maintain the attorney-client relationship.” Kozich, 702 So.2d at 1290.

In contrast, Mr. Leatherberry has no control over the malpractice claim. He could not dismiss the claim without violating his agreement with Green. In fact, he would be unable to dismiss the case even if he concluded, at some point, that the claim was unmeritorious. Furthermore, he could not unilaterally decide to accept or reject an offer in the case, because the agreement requires him to cooperate with Green’s lawyer. The potential conflict is apparent. Green’s lawyer obviously has a right to recover a percentage of the uncollected judgment in the automobile negligence case, and he has authority under the agreement to overrule any decision Leath-erberry might wish to make regarding the prosecution of the malpractice case.

The agreement in this case is like the one invalidated by the court in Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627 (Texas App.2000). A corporation obtained a judgment against Mr. Tate, and then the parties entered into an agreement for an assignment of the proceeds of Tate’s action for legal malpractice. As in the present case, the corporation agreed not to execute its judgment, and Tate agreed to employ the corporation’s lawyer and to cooperate with that lawyer. Tate was the plaintiff, but he had no control over the litigation.

On these facts, the court of appeals held that the agreement was essentially an assignment of the cause of action. The court concluded that the corporation was the real party in interest and that Tate was merely the named plaintiff. Additionally, the court stated that the public policy considerations prohibiting the assignment of a cause of action for legal malpractice apply with equal force to an agreement like the one at issue. Two former adversaries had joined together to find a method by which one of them could be discharged from a financial obligation and the other could collect on a judgment.

We come now to the most difficult task in this case, and that is identifying the proper remedy. Our holding that the agreement between Green and Leather-berry is an unlawful assignment of a malpractice claim compels a conclusion that the cause of action asserted under the agreement cannot be maintained. It follows that the judgment for Leatherberry must be reversed, but this does not necessarily mean that Weiss is entitled to prevail on the merits of the case.

The invalidity of the agreement has no effect on the underlying cause of action for legal malpractice, assuming the claim is asserted by proper person. Leatherberry may decide that he will assert a claim of malpractice against Weiss, even though he is no longer bound by the agreement. On the other hand, he may have no interest in the claim now that he is no longer protected by the agreement.

The best available solution is to remand the case to the trial court for a hearing to determine how Leatherberry intends to proceed. If he does not wish to pursue the action, he can simply file a voluntary dismissal. If he does intend to purse the action, the litigation must start over from the beginning and the parties will not have the benefit of any order entered in the proceeding initiated under the agreement. We could not hold that the agreement to assign the cause of action is invalid and at the same time affirm decisions made in litigation pursued under the agreement.

For these reasons we reverse the judgment for Leatherberry and remand the case to the trial court for a determination whether the action will be dismissed or whether it will be prosecuted independently of the agreement.

Reversed and remanded.

VAN NORTWICK and HAWKES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John M. FERENC, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D03-2557.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2003.
    Rehearing Denied Jan. 15, 2004.
    John M. Ferenc, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

ERVIN, BOOTH and KAHN, JJ., concur.


author: ALLEN, J.

text:
    Joseph P. DEANGELO, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1772.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2003.
    Rehearing Denied Jan. 12, 2004.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   ALLEN, J.

The appellant in this direct criminal appeal contends that his convictions for attempted premeditated murder and attempted felony murder of a single victim in the course of a single criminal episode constitute a double jeopardy violation. Because this argument is supported by the supreme court’s discussion in Gordon v. State, 780 So.2d 17 (Fla.2001), we reverse the judgment in part and remand this case to the trial court for vacation of one of the convictions.

Gordon acknowledges the well-established principle that convictions for both premeditated murder and felony murder are impermissible when only one death has occurred, and also recognizes that this principle was not abrogated by the enactment of section 775.021(4), Florida Statutes. Gordon further observes that a logical extension of this principle is that dual convictions for attempted premeditated murder and attempted felony murder are also impermissible. This discussion from Gordon provides the basis for our decision in the present case.

We recognize that the Gordon court referred to an earlier version of the crime of attempted felony murder. However, the legislature has now revived the crime by its enactment of section 782.051(1), Florida Statutes, the statute under which the appellant was convicted in the present case. Comparison of the elements of the current offense with those of the former crime, as set forth in Amlotte v. State, 456 So.2d 448 (Fla.1984), reveals that the respective elements are nearly identical. Although section 782.051(1) includes “attempt” as one of its elements and thus creates a stand-alone crime, and although the current offense is slightly narrower than its earlier counterpart in that the requisite act committed during the underlying felony cannot be an essential element of that felony, we do not discern any material distinction between the two crimes for purposes of applying the principle recited in Gordon.

The judgment is accordingly reversed to the extent that it reflects convictions for both attempted premeditated murder and attempted felony murder, and this case is remanded to the trial court for vacation of one of the convictions. The trial court should allow the appellee to select the conviction to be vacated.

DAVIS and BENTON, JJ., concur.


author: FLETCHER, Judge.

text:
    MIAMI-DADE COUNTY, Petitioner, v. OMNIPOINT HOLDINGS, INC., Respondent.
    No. 3D01-2347.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.

      Robert A. Ginsburg, County Attorney, Jay W. Williams, Assistant County Attorney, for petitioner.
    Hayes & Martohue and Deborah L. Martohue (St.Petersburg), for respondent.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   ON REMAND

FLETCHER, Judge.

In Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 2003 WL 22208012 (Fla. Sept. 25, 2003), the Florida Supreme Court quashed this court’s decision in Miami-Dade County v. Omnipoint Holdings, Inc., 811 So.2d 767 (Fla. 3d DCA 2002) and remanded the cause with instructions for this court to review again the circuit court’s certiorari decision, this time limiting our review to the standards established in City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982), Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838 (Fla.2001), and Florida Power & Light Co. v. City of Dania, 761 So.2d 1089 (Fla.2000). As a result this court is limited in its review on remand to the only remaining issue: whether the circuit court applied the correct law. Vaillant at 626; G.B.V. at 843; and Florida Power at 1092. (The issue as to whether the circuit court afforded procedural due process was not raised by the pax-ties, thus need not be addressed.)

Our determination hei-e begins with the language of Vaillant, G.B.V., and Florida Power as stated in G.B.V. at 842:

“A decision granting or denying a [quasi-judicial] application is governed by local regulations, which must be uniformly administered. The allocation of burdens expressed in Irvine v. Duval County Planning Commission, 495 So.2d 167 (Fla.1986), is applicable to such proceedings:
[0]nce the petitioner met the initial burden of showing that his application met the statutory criteria for granting such [applications], ‘the burden was upon the Planning Commission to demonstrate, by competent substantial evidence presented at the hearing and made part of the record, that the [application] requested by petitioner did not meet such standards and was, in fact, adverse to the public interest.’ ” [e.s.]

The G.B.V. court went on to say:

“To deny a [quasi-judicial] application, a local government agency must show by competent substantial evidence that the application does not meet the published criteria.” [e.s.]

Neither a quasi-judicial body nor a reviewing circuit court is permitted to add to or detract from these criteria (the local regulations) when making its assigned determination. Thus in Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 2003 WL 22208012 (Fla. Sept. 25, 2003) the Florida Supreme Court held that certiorari review is not the proper vehicle to challenge the constitutionality of a statute or an ordinance.

Put another way, quasi-judicial boards do not have the power to ignore, invalidate or declare unenforceable the legislated criteria they utilize in making their quasi-judicial determinations. See Baker v. Metropolitan Dade County, 774 So.2d 14, 19-20 nn. 12-14 (Fla. 3d DCA 2001), rev. denied, 791 So.2d 1099 (2001). Thus quasi-judicial boards cannot make decisions based on anything but the local criteria enacted to govern their actions.

In the instant case the circuit court appellate division was petitioned by Omni-point Holdings, Inc. to quash the Miami-Dade County zoning board’s denial of Om-nipoint’s application (to construct a communications tower) on two grounds. First, Omnipoint argued that the board’s denial is violative of the Federal Telecommunications Act, 47 U.S.C. § 332 (1996). This Act allows local governments to regulate the placement of personal wireless facilities, so long as such regulation does not unreasonably discriminate among like service providers, or prohibit the provision of wireless services. Based on Omnipoint’s argument the circuit court concluded that the zoning board’s denial violates the Act and thus must be quashed. By considering the Act, however, the circuit court did not apply the correct law. This is so as the Federal Telecommunications Act is not a part of the local zoning criteria, thus the circuit court’s decision on certiorari review cannot validly be bottomed on the Federal Act.

The circuit court gave a second reason for its quashal of the zoning board’s denial: that the zoning board’s decision is not supported by substantial competent evidence (which is defined as “such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.”) Whether there was substantial competent evidence is an issue outside our review authority. We are not, however, precluded from reviewing the circuit court’s decision to assure that the court applied the correct law to the information offered to the zoning board as evidence. For example, in Machado v. Musgrove, 519 So.2d 629 (Fla. 3d DCA 1987), rev. denied, 529 So.2d 693 and rev. denied, 529 So.2d 694 (Fla.1988), this court observed that a zoning staff report that was irrelevant to the issue involved was entitled to no consideration in arriving at a conclusion as to whether the substantial competent evidence test had been met. In Jesus Fellowship, Inc. v. Miami-Dade County, 752 So.2d 708 (Fla. 3d DCA 2000), this court concluded, inter alia, that the circuit court, by approving the use of lay opinion testimony where technical expertise was required, failed to apply the correct law.

Our review of the circuit court’s decision here leads us to the conclusion that the circuit court applied correct law in the process of reaching its conclusion as to the sufficiency of the evidence. As it not our function to pass on the sufficiency of the evidence itself, we stop at this point. Accordingly, the petition for writ of certiorari is denied.

      . See City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100 (Fla. 3d DCA 1983), at 1104.

      . The Act may, of course, be the basis for an original action challenging a local zoning decision.

      . DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957).

      .Additional examples include Metropolitan Dade County v. Blumenthal, 675 So.2d 598 (Fla. 3d DCA 1995), rev. dismissed, 680 So.2d 421 (Fla,1996)(fact based lay testimony is perfectly proper); Pollard v. Palm Beach County, 560 So.2d 1358 (Fla. 4th DCA 1990)(lay persons’ opinions unsubstantiated by any competent facts are not evidence).


author: KLEIN, J.

text:
    DOLLAR SYSTEMS, INC., Appellant, v. ELVIA, Appellee.
    No. 4D03-489.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Rehearing Denied Feb. 4, 2004.
    Carri S. Leininger of Williams, Leininger & Cosby, P.A., West Palm Beach, for appellant.
    David B. Shelton and Lori J. Caldwell of Rumberger, Kirk & Caldwell, Orlando, for appellee.
   KLEIN, J.

Elvia is a European liability insurer which sold excess coverage to protect Europeans driving rental cars while visiting in the United States. The issue before us is whether Elvia is subject to personal jurisdiction in a declaratory action brought to determine coverage for Florida accidents. We conclude Elvia is subject to personal jurisdiction.

A Swiss company with its main office in Germany, Elvia sells travel insurance through a German tour operator, C.A. Ferntouristik (CAF), which markets tour packages to German citizens traveling in the United States. CAF contracted with Dollar System, Inc. for Dollar to provide rental cars in Florida to the tourists. Through CAF, Elvia provides excess liability insurance over the insurance provided by Dollar.

After some of the tourists were involved in accidents in Florida while driving Dollar vehicles, a dispute arose as to the priority of coverage between Elvia and other excess liability insurers. Dollar filed this action against Elvia seeking declaratory relief as to the priority of coverage, and the trial court dismissed for lack of personal jurisdiction.

Our long arm statute, section 48.193(l)(d), Florida Statutes (2003), provides that one who contracts “to insure any person, property, or risk located within this state at the time of contracting” is subject to personal jurisdiction. Elvia argues that it is not subject to personal jurisdiction under this statute because, when it entered into this contract with CAF in Germany, there was no “risk located within this state at the time of contracting.” Elvia’s point is that the CAF contract was entered before Elvia actually insured a tourist, and accordingly there was no risk located in Florida at the time of the contract.

Elvia’s contract with CAF, however, was merely a contract to provide insurance in the future. The contract to insure contemplated by the statute was the insurance coverage which did not become effective until the insured rented the car. The premium charged was a specific amount per car per day. When that coverage became effective, Elvia knew that the car was being rented in Florida.

Elvia relies, for its argument that there was no risk in Florida at the time of the contract, on Meyer v. Auto Club Insurance Ass’n, 492 So.2d 1314 (Fla.1986). In Meyer a Michigan resident had obtained auto insurance from a Michigan insurer which neither maintained offices nor solicited business in Florida. While visiting Florida, the insured was in an accident. After that he became a Florida resident, and then sued the insurer in Florida for PIP benefits. In holding that the Michigan insurer was not subject to personal jurisdiction in Florida for this suit by the insured, the court explained:

The relevant facts for deciding this jurisdictional issue are undisputed. Petitioner was a Michigan resident who contracted for automobile insurance with respondent, a Michigan insurance company. At the time this contract was entered into, both parties were located in Michigan, not Florida. The property covered under the policy and the risk insured against were likewise in Michigan, not Florida. These facts clearly negate the applicability of section 48.193(l)(d).

Id. at 1315.

The court also concluded that the Michigan insurer, which did not maintain an office or solicit business in Florida, did not have the minimum contacts with Florida required under the due process clause of the Fourteenth Amendment. The court reasoned that the unilateral acts of the insured in having an accident in, and becoming a resident of Florida, were not enough to subject the Michigan insurer to personal jurisdiction. The court rejected the insured’s argument that, because the policy covered him while driving in any state, there was jurisdiction, explaining that providing coverage for an accident in any state is not the same as having minimum contacts in any state.

We find Meyer distinguishable because in Meyer, when the insurance went into effect, the risk being insured was that of a Michigan resident. The risk entailed in that undertaking would not contemplate that a first party claim against the insurer would be filed in Florida. In contrast to Meyer, the risk in the present case did not change after the insurance became effective. The policy explicitly provided insurance for tourists vacationing in Florida.

In Glovegold Shipping Ltd. v. Sveriges Angfartygs Assurans Forening, 791 So.2d 4 (Fla. 1st DCA 2000), a foreign insurer had insured a foreign vessel which the insurer knew would be sailing in Florida waters. Following an accident off the coast of Jacksonville, the insured brought suit against the insurer in Florida, and the trial court dismissed for lack of personal jurisdiction. The first district reversed, however, concluding that the foreign insurer had contracted to insure a risk located in Florida under section 48.193(l)(d). We agree with Glovegold and conclude that our long arm statute was satisfied.

Proceeding to the federal due process issue, McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (U.S.1957), we find the reasoning in Eli Lilly and Co. v. Home Insurance Co., 794 F.2d 710 (D.C.Cir.1986), persuasive. In Eli Lilly excess insurers contended they were not subject to personal jurisdiction in the District of Columbia, in a products liability case against their insured. The product was a drug manufactured by Eli Lilly and distributed nationally. After concluding that insurers met the requirement of the D.C. long arm statute, which was worded the same as our section 48.193(l)(d), the court addressed the due process argument:

The touchstone of our due process inquiry is whether it would have been “foreseeable” that the excess insurers would be “haled into court” in the District of Columbia. Given the specific relationship between appellants and ap-pellee in this case, we have little difficulty finding that such a result was in fact quite foreseeable.
Appellants knew that their insured, Lilly, distributed its products nationwide. They therefore were aware that Lilly was likely to be sued in any jurisdiction in the nation, including the District of Columbia. Moreover, as Lilly’s insurers, appellants were aware that if Lilly was sued it was likely to attempt to implead appellants if a dispute arose over them duty to indemnify or defend. In such an eventuality it would be completely foreseeable that the insured would successfully hale the insurance company into court.

794 F.2d at 720 (citations omitted).

Just as the excess insurers in Eli Lilly knew that they could be haled into court for a coverage dispute in any state where the product was distributed, Elvia, which was specifically providing excess insurance for tourists driving in Florida, should have foreseen that it would be haled into court in Florida if a dispute arose about coverage. Maintenance of this suit in Florida does not violate due process.

The order of dismissal is therefore reversed.

STONE and TAYLOR, JJ., concur.


author: POLSTON, J.

text:
    325 WEST ADAMS STREET, LTD., and Richard Minartz, Appellants, v. CITY OF JACKSONVILLE, a Municipal Corporation of the State of Florida, Appellee.
    No. 1D02-4522.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2003.
    Rehearing Denied Jan. 23, 2004.

      Amy Brigham Boulris, Andrew Prince Brigham and Bruce B.Humphrey, Brigham Moore, LLP, Miami, for Appellants.
    Richard A. Mullaney, General Counsel; Bruce Page Assistant General Counsel, Jacksonville, for Appellee.
   POLSTON, J.

Appellants 325 West Adams Street, Ltd. and Richard Minartz appeal the trial court’s order granting a new trial in an eminent domain case relating to property taken to build a courthouse. The trial court ordered a new trial after the jury rendered its verdict, based on allegations of juror misconduct. Appellee City of Jacksonville cross-appeals and asserts, as an alternative basis for granting a new trial, that the trial court erred by giving a jury instruction contrary to the law. Because we agree with the City of Jacksonville that the jury instruction was in error, we affirm the trial court’s order granting the new trial without addressing the ruling on juror misconduct.

Appellants proposed the following jury instruction regarding anticipated increases in value, entitled “Anticipation of the New Downtown County Courthouse Project”:

Fair market value, which you may use to determine the award to the owners, may reflect an increase in value due to the anticipation of the new downtown county courthouse project in combination with other diverse influences or market forces in the subject neighborhood. The owners of the property taken are entitled to such increase even if occurring after the new downtown county courthouse is announced to the public.

The trial court read this proposed instruction to the jury, except for the last sentence. In closing arguments, the appellants argued that the jury “can consider the increase in value due to the public announcement of this project, this project, the new courthouse.”

The jury instruction given is contrary to the applicable eminent domain statutory language:

Any increase or decrease in the value of any property to be acquired which occurs after the scope of the project for which the property is being acquired is known in the market, and which is solely a result of the knowledge of the project location, shall not be considered in arriving at the value of the property acquired. For the purpose of this section, the scope of the project for which the property is being acquired shall be presumed to be known in the market on or after the condemnor executes a resolution which depicts the location of the project.

Section 73.071(5), Fla. Stat. (2002). Reading the jury instruction as given constitutes reversible error because it is misleading and an erroneous statement of the law. See Mogavero v. State, 744 So.2d 1048, 1050 (Fla. 4th DCA 1999). Accordingly, on remand, we direct the trial court to give an instruction in accordance with section 73.071(5).

AFFIRMED and REMANDED for a new trial with directions.

BROWNING and HAWKES, JJ., concur.

      . There is no conflict between section 73.071(5) and Department of Transportation v. Nalven, 455 So.2d 301 (Fla.1984). In Nalven, the Florida Supreme Court ruled that the increase in property values could be considered, but only the probable alignment of the project (1-75) in Manatee County was known. Id. at 308. Section 73.071(5) prohibits increased or decreased value resulting from anticipation of the actual project location, not just a generally known area as in Nalven. Therefore, section 73.071(5) is consistent with, not contrary to, judicial determinations of full and just compensation. See e.g., State Road Dep't v. Chicone, 158 So.2d 753 (Fla.1963)(holding that a decrease in property value as a result of the prospect of condemnation cannot be properly considered in arriving at full and just compensation).


text:
    Givanni Torrell PARKS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-343.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Rehearing Denied Jan. 16, 2004.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, and Rebecca M. Placensia, Certified Legal Intern, for appellee.
    Before SCHWARTZ, C.J., and COPE, and RAMIREZ, JJ.
   PER CURIAM.

We conclude that the trial court correctly found, after a full evidentiary hearing, that appellant failed to comply with the terms of his plea agreement, thus the trial court properly vacated his sentence and resentenced him. McCoy v. State, 599 So.2d 645 (Fla.1992). The plea agreement required the appellant to testify against his co-defendant, identifying him as the shooter in a homicide prosecution. The testimony was to be consistent with his prior sworn statement. However, at his deposition, appellant claimed that he could not remember most of the information contained in his prior sworn statement, and would not identify the co-defendant as the shooter. We therefore affirm.


author: PALMER, J.

text:
    Francis BOWLING, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2846.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.
    Francis L. Bowling, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Francis Bowling (defendant) appeals the summary denial of his rule 3.850 motion for postconviction relief. See Fla. R.Crim. P. 3.850. We reverse.

Pursuant to a plea agreement, defendant was convicted of committing the offenses of aggravated assault with a deadly weapon and aggravated domestic violence battery. He was sentenced to concurrent terms of five years imprisonment as a youthful offender, with the stipulation that he be permitted to enter the basic training boot camp program. For various reasons, defendant was found ineligible to participate in the boot camp program and, as a result, he sought rule 3.850 relief. Specifically, the defendant claimed that his judgments and sentences should be set aside because the boot camp program was an inherent part of his plea agreement. The trial court entered an order denying the defendant’s claim for relief stating that the court had complied with the terms of the plea agreement by recommending that the defendant attend boot camp and therefore subsequent conditions which made defendant ineligible for boot camp did not constitute grounds for postconviction relief. No documents were attached to the trial court’s order.

The State properly concedes that the trial court’s order denying defendant’s motion for postconviction relief is improper because the trial court failed to attach documents conclusively refuting defendant’s claim that he was promised the boot camp program as a condition of his plea. However, the State maintains that the order should be affirmed on a procedural ground not addressed by the trial court: the untimely filing of defendant’s rule 3.850 motion.

The instant record indicates that the defendant was adjudicated guilty and sentenced on October 12, 2000, and no direct appeal was taken therefrom. The defendant’s rule 3.850 motion was signed by defendant on June 22, 2003, and filed in the trial court on June 25, 2003, a date more than two years after the judgment and sentence became final. On this record it appears that the motion may not have been timely filed.

Accordingly, we reverse the trial court’s order denying defendant’s claim for post-conviction relief and remand the case to the trial court to determine whether defendant’s motion was timely filed and, if so, then to either attach the appropriate portions of the record that conclusively refute defendant’s claim of involuntary plea or conduct an evidentiary hearing on the matter.

REVERSED and REMANDED.

PETERSON and ORFINGER, JJ„ concur.


author: PER CURIAM. BOOTH, J.,

text:
    Gregory Dean EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5088.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2003.
    Curtis S. Fallgatter of Fallgatter & Far-mand, P.A., Jacksonville, for appellant.
    Charlie Crist, Attorney General, and Edward C. Hill, Jr., Special Counsel, Criminal Appeals, for appellee.
   ORDER ON EMERGENCY MOTION FOR BAIL PENDING APPEAL

PER CURIAM.

We treat appellant’s emergency motion for bail pending appeal as a motion for review pursuant to Florida Rule of Appellate Procedure 9.140(h)(4), and grant that motion.

Appellant entered a negotiated plea of guilty to one count of possession of photographs (computer images) depicting sexual conduct by a child, reserving the right to appeal the denial of his dispositive motion to suppress. In accordance with the terms of his negotiated plea, he was sentenced to a term of five years of sex offender probation, with a special condition that he serve one year in the county jail. He sought post-trial release pending appeal and the trial court denied that motion. In so doing, the court acknowledged that this appeal was taken in good faith on grounds fairly debatable. The trial court noted that by virtue of his plea, appellant had now been adjudicated guilty of a felony, and found that “this conviction increases [appellant’s] likelihood of flight, as he is now facing sentence.” The trial court also found that appellant’s employment places him in contact with children, and that appellant would therefore cause a risk to children in the community. The trial court made no other finding to support the conclusion that appellant presents a risk to the community.

We conclude that particularly when viewed in light of the other factors set forth in Younghans v. State, 90 So.2d 308 (Fla.1956), that weigh in appellant’s favor on the question, including his ties to the community, the absence of any prior record, and his conduct while on pretrial release, the two factors cited by the trial court are an insufficient basis on which to justify the decision to deny him post-trial release. Younghans recognizes that a trial court may properly exercise its discretion against the allowance of post-trial bail “if there are circumstances to indicate that the accused will flee and thus evade punishment if his conviction is affirmed.” Id. at 310. Here, the trial court made no finding that appellant is likely to flee, and the only circumstance noted by it was the fact that appellant has now been convicted and sentenced. However, this fact does not distinguish him in any way from any other defendant seeking post-trial release pending appeal of his or her judgment and sentence. Appellant is not facing a lengthy incarcerative sentence, and the absence of any other case specific circumstances to suggest that he will flee to avoid punishment renders reliance on this factor inappropriate. See Coolley v. State, 720 So.2d 598 (Fla. 2d DCA 1998)(fact that defendant is facing minimum mandatory sentence does not in the absence of other supporting facts justify conclusion that defendant presents a flight risk). Indeed, as the Younghans court recognized, the fact that appellant’s incarcerative sentence is relatively short is a matter that weighs in favor of granting bail pending appeal, inasmuch as the denial of bail would render appellant’s right to appeal at least partially nugatory.

As to the issue of appellant’s potential to harm children in the community, the record before us is devoid of any evidence that appellant has ever acted out in a physically inappropriate or otherwise harmful fashion with any child. With specific regard to appellant’s activities with the child discussed in the dissenting opinion, the state stipulated as part of the plea agreement that it is presently unaware of any alleged criminal activity relating to that child. Moreover, the concern that appellant’s employment places him in contact with children is a matter the trial court is free to address through the imposition of reasonable conditions on post-trial release.

Accordingly, appellant’s motion for review is granted, and the trial court’s order denying his motion for bail pending appeal is quashed. The matter is remanded to the trial court with directions to establish reasonable conditions for post-trial release pending appeal.

BENTON and LEWIS, JJ, concur; BOOTH, J., dissents.

BOOTH, J.,

dissents.

I would affirm the trial court’s order denying bond pending appeal by this convicted possessor of child pornography. The trial court is afforded discretion in deciding to deny bail pending review. Boles v. State, 388 So.2d 581 (Fla. 5th DCA 1980). I agree with the reasons set forth in the trial court’s order for denying bail, and further note there is sufficient evidence to support the trial court’s finding that appellant poses a danger in the community to children.

The trial court was aware that appellant was in contact with a specific child (who was approximately 12 years old), and that the child slept over at appellant’s home on some occasions. During the sleepover, the child and appellant slept in the same bed clothed only in their underwear. Appellant admitted that he masturbates to fantasies about the child and described him in an internet email as “hot.” Further appellant was actively engaged in creating chat groups and downloading and transmitting pictures of children engaged in sexual activity. Clearly, the trial court was concerned about appellant’s probable conduct while on bail. As a reviewing court, we are not in a position to second-guess the trial court’s determination on such matters.

Thus, the trial court has not abused its discretion in accordance with the factors in Younghans v. State, 90 So.2d 308 (Fla.1956).


author: WALLACE, Judge.

text:
    Jason BEEZLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1029.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2003.

      Cassandra Gorton, Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Jason Beezley appeals his convictions for possession of cannabis with intent to sell, possession of cocaine with intent to sell, and possession of a controlled substance. He pleaded no contest to the charges after the trial court denied his motion to suppress the physical evidence found in his car after it was impounded. See Fla. R.App. P. 9.140(b)(2)(A)(i). The court should have granted the motion to suppress because there was no indication that the police conducted the inventory search according to standardized criteria. Therefore, we reverse and remand with directions to discharge Beezley.

The following facts are relevant to the disposition of this appeal. Police detectives of the Sarasota County Sheriffs Department were conducting surveillance of a private residence in Venice, Florida, where they suspected a fugitive was hiding. They observed Beezley, who was not the fugitive, enter his Ford Contour that was parked in the driveway. While talking to Beezley, the officers on the scene learned that a fellow officer, who had encountered Beezley earlier that day, believed there was probable cause to arrest Beezley for obstructing the search for the fugitive. The officers arrested Beezley for that reason. The officers then decided to impound his vehicle and conduct an inventory search. They found contraband in the trunk, and Beezley was charged with the offenses that are the subject of this appeal. Beezley was not prosecuted for obstruction. According to the officers’ testimony at the hearing on the motion to suppress, all of the physical evidence that Beezley sought to suppress was found during the inventory search. The officers testified that pursuant to Department policy, the decision to impound a vehicle is within an individual officer’s discretion, but after the decision to impound is made, a complete inventory search must be performed.

Although Beezley challenges the legality of his arrest for obstruction, resolution of that issue is not pertinent to the outcome of this appeal. The arrest of an occupant of a vehicle permits the police to search the vehicle’s interior incident to the arrest. See Thomas v. State, 761 So.2d 1010, 1013 (Fla.1999) (interpreting New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)). Circumstances that develop after the person is arrested or detained may create probable cause to justify a search of the entire vehicle, including the trunk. State v. Betz, 815 So.2d 627, 632-33 (Fla.2002). However, the State does not argue that circumstances of Beezley’s arrest for obstruction created probable cause justifying a search of the entire vehicle. Instead, the State describes the search revealing the contraband as a “routine inventory search” that is standard procedure whenever a vehicle is impounded. We accept that an inventory search incident to the impoundment produced the physical evidence that Beez-ley challenged below.

Under the circumstances of the inventory search performed in this case, our decision is controlled by Patty v. State, 768 So.2d 1126 (Fla. 2d DCA 2000). In Patty, officers observed the defendant drive a vehicle into the driveway of a private residence and exit the vehicle. They recognized the defendant, confirmed the existence of outstanding warrants for his arrest, and arrested him. Incident to the impoundment of his vehicle (not incident to the arrest), police performed an inventory search that revealed illegal drugs. Id. at 1127. This court reversed the denial of the motion to suppress the physical evidence for reasons highly pertinent to this appeal:

Although the officers may have had good reasons to impound the vehicle, there is no evidence demonstrating that they adhered to standardized procedures when they impounded the vehicle and conducted the search. Admittedly, when police take custody of a vehicle, they may conduct a “reasonable” inventory search of that vehicle, as an exception to the warrant requirement of the Fourth Amendment. See Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). However, such an impoundment and inventory search must be conducted according to standardized criteria. See id. at 374 n. 6, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739. The Florida Supreme Court recognized that these standardized procedures, which limit police discretion in determining the scope of the inventory search, ensure that the police will not abuse this exception to the warrant requirement. See State v. Wells, 539 So.2d 464, 469 (Fla.1989). Consequently, a trial court must find that police conducted their inventory search according to standardized criteria before declaring that search valid. See generally Rodriguez v. State, 702 So.2d 259 (Fla. 3d DCA 1997). The State did not present evidence concerning such standardized criteria, and thus the trial court made no such finding. Based on the record before us, we are unable to determine whether the impoundment and search were consistent with standardized criteria of the Tampa Police Department. ... [Tjhese findings are crucial to determining the validity of the inventory search....

Patty, 768 So.2d at 1127-28.

In this case, as in Patty, we are unable to determine whether the impoundment and search were consistent with standardized criteria of the Sarasota County Sheriffs Department. The State presented no evidence of such standardized criteria, and the trial court made no findings in that regard. Therefore, the trial court erred in denying Beezley’s motion to suppress the physical evidence. Because the motion was dispositive, we reverse and remand for Beezley’s discharge on all three counts. Because of our decision, we decline to address the other issues raised in this appeal.

Reversed and remanded for discharge.

ALTENBERND, C.J., and SILBERMAN, J., concur.


author: VAN NORTWICK, J.

text:
    GOODWILL INDUSTRIES OF CENTRAL FLORIDA, Professional Business Owners Association, and Everest National Insurance Company, Appellants, v. Dellean HEARD, Appellee.
    No. 1D02-3995.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2003.
    Nicholas A. Shannin and Andrew Serano of McDonough, Wieland, Shannin & Granu-la, Orlando, for Appellants.
    Michael Broussard and Sarah P. Reiner of Broussard, Cullen & DeGailler, P.A., Orlando, for Appellees.
   VAN NORTWICK, J.

In this workers’ compensation appeal, Goodwill Industries of Central Florida, Professional Business Owners Associations, and Everest National Insurance Company, (employer/carrier), challenge a worker’s compensation order awarding permanent total disability (PTD) benefits. Appellants argue the Judge of Compensation Claims (JCC) erred in finding that the positions offered to Dellean Heard, claimant and appellee, constituted sheltered employment. Because the JCC employed an incorrect legal standard, we reverse the award of PTD benefits and remand the cause for further proceedings. We do not disturb that part of the order which denies temporary partial or temporary total disability benefits.

Heard was injured in the scope and course of her employment at a Goodwill store when a bed headboard fell upon her on January 17, 2001. Heard fractured her right hip and injured her right knee; she required a partial hip replacement as a result of the injury. Heard was 68 years old at the time of injury and had worked for Goodwill since 1997. Following her injury, Heard did not return to work at Goodwill and did not seek other employment.

Heard sought permanent total disability benefits from the date of maximum medical improvement (MMI), temporary total or partial disability benefits from August 15, 2001 to the date of the hearing, and authorization of certain physicians and medical treatment. The employer/carrier had accepted the accident as compensable and had authorized medical procedures. The employer/carrier denied the PTD claim on the opinion of Mark W. Hollman, the orthopedist authorized at the request of the claimant, who opined that claimant reached MMI on Feb. 24, 2002, with a total impairment rating of 8%, and who further opined that claimant could work with restrictions against heavy lifting, prolonged standing, and so on.

The claim preceded to a hearing before the JCC who received evidence and argument regarding positions at Goodwill retail establishments, such as sorter and greeter, which could be modified to fit Heard’s restrictions. The JCC found such positions to be “sheltered” pursuant to the standard set forth in Shaw v. Publix Supermarkets, Inc., 609 So.2d 683 (Fla. 1st DCA 1992). The JCC further found that “Goodwill is in the business of providing light duty work for individuals for whom placement is difficult or impossible in the general labor market.”

This latter finding is amply supported by the testimony of the Area Retail Sales Director for Goodwill, who testified that it is the “business” of Goodwill to

provide services to individuals who come looking for employment or looking to gain job skills to become employable. More employable. We hire just people with disabilities and disadvantages and really our mission is to create revenue from donated goods to support programs to allow people to become more employable.

The Director further testified that among the disabled or disadvantaged persons hired by Goodwill are the elderly and persons with cognitive, psychiatric or physical disabilities. Given the nature of Goodwill’s workforce, many of its employees require accommodations or modification of work activities, added the Director.

A workers’ compensation claimant is not entitled to PTD benefits if she obtains “gainful employment” after a work-related injury. Shaw v. Publix Supermarkets, 609 So.2d at 684. However, an employer is not permitted to create a position for a claimant, that is, to provide “sheltered employment,” for the sole purpose of defeating a PTD claim. Id. As we explained in Wal-Mart Stores, Inc. v. Liggon, 668 So.2d 259, 271 (Fla. 1st DCA 1996), the “sheltered employment doctrine does not have a life of its own” but instead exists “to vindicate the legislatively imposed parameters of permanent and total disability.” Thus, as we further explained in Liggon:

If an employer creates a job for an employee merely as a litigation tactic in a worker’s compensation case, such a job cannot be said to constitute “gainful employment” as that term is used in section 440.15(l)(b), Florida Statutes. Reasonable job modification for the purpose of accommodating an injured or partially disabled employee will not, however, place the job outside of the definition of gainful employment.

See also Cooper v. Escambia County School Bd., 734 So.2d 1072, 1073 (Fla. 1st DCA 1999)(“The modifications the employer made in the claimant’s job to accommodate her disability do not, as a matter of law, render it sheltered employment so as to place this job outside of ‘gainful employment’ under section 440.15(l)(b), Florida Statutes (1989).”).

The positions offered by Goodwill, greeter, cashier, and clothing sorter, are all established positions, and thus were not positions created solely for this claimant, as was the case in Shaw. As the record reflects, Goodwill routinely accommodates the special needs of employees. Thus, by making accommodations for the claimant in this case, Goodwill acted no differently towards her than it does towards other disabled employees who were not injured in the course of employment. Such facts distinguish the case at bar from Shaw. See Liggon, 668 So.2d at 271 (“Reasonable job modification for the purpose of accommodating an injured or partially disabled employee will not, however, place the job outside of the definition of gainful employment.”).

Accordingly, the award of PTD benefits is REVERSED, and the cause is REMANDED for entry of an order denying PTD benefits.

PADOVANO and HAWKES, JJ., concur.


text:
    Nathaniel MORROW, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2451.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Marni A. Byrson, Assistant Attorney General, (FtLauderdale) for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed, without prejudice to any issues that may be properly addressed pursuant to rule 3.850, Florida Rules of Criminal Procedure.


text:
    P.S., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-715.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Herscher & Herscher, and llene Herscher, Coral Gables, for appellant.

      Calianne P. Lantz, Assistant District Legal Counsel; Hillary S. Kambour, Program Attorney, Guardian Ad Litem Program, for appellee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

P.S. (“mother”) appeals the trial court’s order terminating her parental rights to her four children. Because there was no competent substantial evidence supporting an expedited termination of the mother’s parental rights under Section 39.806(l)(f), Florida Statutes (2001), we reverse and remand.

The mother was arrested at Miami International Airport for swallowing capsules of cocaine in an attempt to smuggle cocaine into the United States. Her two year old daughter, J.R. was present at the time of the arrest. The mother’s three other children, C.R., S.R., and P.R. were located the next day in the care of relatives. The Department of Children and Families’ (“Department”) placed the four children in placements under its supervision.

The Department thereafter filed a dependency petition alleging that the mother and fathers had abused, abandoned or neglected the children. The Department subsequently filed a petition for expedited termination of parental rights alleging that the parents neglected, abused and abandoned the children. The petition further alleged the mother engaged in egregious conduct because she was arrested for attempting to smuggle cocaine into the United States and is incarcerated in a federal correctional facility awaiting trial on federal drug charges. Subsequently, the mother pleaded guilty to conspiracy to import 500 grams of cocaine into the United States and was sentenced to a term of thirty months in federal prison. The trial court granted the petition for expedited termination of parental rights pursuant to Section 39.806(l)(f).

To establish a prima facie case under Section 39.806(l)(f), the Department was required to prove egregious conduct on the part of the mother. Egregious conduct is defined as:

[A]buse, abandonment, neglect or any other conduct of the parent or parents that is deplorable, flagrant, or outrageous by a normal standard of conduct. Egregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child.

See § 39.806(l)(f)(2), Fla. Stat. (2001).

Here, the Department did not produce competent, substantial evidence of specific harm to the children. The only evidence the Department presented in support of the allegation of egregious abuse was a criminal judgment from the United States District Court, Southern District of Florida, which showed the mother pleaded guilty to one count of conspiracy to import 500 grams or more of cocaine into the United States. There was no testimony regarding the details of the arrest or any harm caused to the children as a result of the arrest.

We do not condone such behavior and strongly emphasize that exposing a child to criminal activity is clearly not appropriate. However, the fact that the mother was arrested, in and of itself, is not sufficient to justify an expedited termination of parental rights. See In re A.W. and J.W., 816 So.2d 1261 (Fla. 2d DCA 2002)(father who was serving sentence of fifty-four months for drug trafficking charge could not have his parental rights terminated where Department failed to prove other statutory basis for terminating his parental rights). Without connecting the arrest to any abuse, neglect or specific harm to the child that was present at the arrest or to her other children, this conduct alone cannot be the basis for a termination of parental rights. See In re C.V.T., 843 So.2d 366 (Fla. 2d DCA 2003)(without connecting mother’s drug use to specific harm to the child, egregious conduct was not a valid basis for termination of parental rights); In re C.W.W., 788 So.2d 1020 (Fla. 2d DCA 2001).

We also reject the argument advanced at oral argument that the termination of parental rights was proper under Section 39.806(l)(d). This argument was not made below nor did the trial court make any findings of fact that support a termination of parental rights under this section. See In re J.D.C., 819 So.2d 264 (Fla. 2d DCA 2002)(a trial court is required to evaluate whether the time for which a parent is incarcerated constitutes a substantial portion of the time before the child reaches eighteen).

The mother is serving a sentence of thirty months and has indicated that she will be released in six months. This sentence does not constitute a substantial portion of the children’s fives before they turn eighteen. See In re A.W. and J.W., 816 So.2d 1261 (Fla. 2d DCA 2002)(father’s remaining sentence of fifty-four months did not constitute a substantial portion of the period of time before the child reaches eighteen); In re T.B and J.T., 819 So.2d 270 (Fla. 2d DCA 2002) (incarceration alone is an insufficient ground to terminate parental rights).

In sum, the evidence presented below does not contain competent, substantial evidence to support the expedited termination of the mother’s rights under Section 39.806(l)(f). Accordingly, we reverse the trial court’s order terminating the mother’s parental rights. On remand, the Department must consider whether, 'in fight of the facts in the case and this opinion, it should offer the mother a case plan with the goal of reunification. If circumstances exist that satisfy the statutory requirements for termination of parental rights, the Department may again petition to terminate the mother’s parental rights.

Reversed and remanded.

      . The fathers of J.R. and S.R are unknown and the unknown fathers’ parental rights were terminated pursuant to publication. H.R., the father of P.R. proceeded to trial at the same time as the mother and the trial court also terminated his parental rights. Terrence Reed signed a surrender of his parental rights to C.R. The fathers are not parties to this appeal.

      . Section 39.806(l)(d) provides that the Department may file a petition for termination of parental rights when the parent is incarcerated in a state or federal correctional institution and the court finds either the period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will turn eighteen; the incarcerated parent has been determined to be a violent career criminal, a sexual predator, or has been convicted of first degree or second degree murder; or the court finds by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child. See § 39.806(l)(d), Fla. Stat. (2001).


author: COPE, J.

text:
    Eric WELDON, Appellant, v. James G. WYCHE, Appellee.
    No. 3D03-175.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Millard C. Glancy, Coral Springs, for appellant.
    Silverio & Hall and Brian Silverio, for appellee.
    Before SCHWARTZ, C.J., and COPE and SHEPHERD, JJ.
   COPE, J.

Eric Weldon appeals an adverse summary judgment in his action for fraud. We reverse for further proceedings.

Since this is an appeal from a summary judgment, we view the record in the light most favorable to plaintiff-appellant Weldon, as the nonmoving party. See Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

Plaintiff-appellant Weldon invested $160,000 with First Delta Financial Corporation. First Delta was owned by defendant-appellee James G. Wyche, who served as its chairman of the board.

Plaintiff and defendant were neighbors. According to plaintiffs testimony, the defendant represented to him that First Delta and another of defendant’s companies, Allied Transportation, were making money and were good investments. The defendant explained that others had already invested in these companies, and invited plaintiff to do so. The defendant took plaintiff into his home office and showed him accounts reflecting the money that the defendant was taking in from the businesses, and the money that the defendant was paying out to the investors. The defendant encouraged the plaintiff to liquidate other investments and instead invest in the defendant’s companies which would give him a substantial rate of return without significant risk.

The plaintiff invested $160,000 with the defendant. The investment was reflected in the form of a note from First Delta Financial Corporation. The stated rate of return was eighteen percent per year.

The record contains correspondence to the investors signed by the defendant as chairman of the board, and by the corporate president and chief executive officer, Vincent Medina. At one point the corporation had been paying forty-two percent interest to its investors. In May 1998 this was reduced to twenty-five percent, and in October 1998 to eighteen percent or twenty-five percent, depending on the amount invested.

The business went defunct. The plaintiff lost his investment, as did approximately forty other investors.

Defendant Wyche, the plaintiff, and a number of other investors initially joined together in a suit against corporate president, Vincent Medina, on the theory that Medina had misappropriated the invested funds. Subsequently this plaintiff withdrew from that suit and brought suit against defendant Wyche.

Defendant Wyche moved for summary judgment. He argues that the financial failure was entirely the fault of Vincent Medina, and claims he had no knowledge of Medina’s activities. Defendant Wyche contends that he and the other investors were victimized by Medina.

Defendant Wyche argues that all of the representations he made to the plaintiff were true when made, and that he committed no fraud. The trial court granted summary judgment in favor of the defendant and the plaintiff has appealed.

A trial court should be cautious entering summary judgment in a fraud case. See Baker v. United Services Auto. Ass’n, 661 So.2d 128, 132 (Fla. 1st DCA 1995). Under the circumstances present here, the summary judgment should not have been entered.

Accepting the plaintiffs testimony as true, the defendant told the plaintiff that he was the owner of First Delta, a sound business and good investment. The defendant was the chairman of the board. The defendant personally showed the plaintiff financial records of the company reflecting funds received and proceeds paid out to investors. The defendant personally signed (along with Medina) the letters to investors which addressed the rates of return that the company was paying to investors. The plaintiff never met Medina or had any knowledge of his existence until long after he made the $160,000 investment with First Delta.

Vincent Medina testified that defendant Wyche personally drafted the promissory notes and letters issued to the investors. According to Medina, defendant Wyche was the contact person with the investors. The defendant received the funds invested, directed how the funds would be used, and made the interest payments to the investors. Medina testified that the investors’ money ultimately went to defendant Wyche personally.

Other investors filed affidavits confirming that the financial aspects of their investment were handled by the defendant personally. These investors stated that (like the plaintiff) they did not deal with, or know of the existence of, Vincent Medina until after they had made their investments.

Based on the foregoing, the trier of fact could reasonably conclude that the defendant was thoroughly knowledgeable of the true financial situation of First Delta and his related companies. The trier of fact could also conclude that the defendant’s representations that these were sound businesses and safe investments were untrue, and known by the defendant to be untrue when made. See Baker, 661 So.2d at 132.

Naturally the defendant has a different version of the events, which he is free to present at trial. But viewing the record in the light most favorable to the plaintiff, the summary judgment must be reversed.

Reversed and remanded for further proceedings consistent herewith.

       It is plaintiff’s theory that the defendant was operating a Ponzi scheme, which has been defined as "[a] fraudulent investment scheme in which money contributed by later investors generates artificially high dividends for the original investors, whose example attracts even larger investments.” Black’s Law Dictionary 1180 (7th ed. 1999).
      If the defendant had no intention of carrying out the promise that the investors’ funds would be used for legitimate business purposes, then that too is an actionable fraud. See Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168, 172 (Fla. 4th DCA 1994).


text:
    C.L.C., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-4487.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 2003.
    Alan H. Schreiber, Public Defender, and Sarah W. Sandler, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

C.L.C., a juvenile, petitions for a writ of habeas corpus seeking release to a less restrictive form of detention. Following an adjudication of delinquency, the trial court ordered that C.L.C. be held in secure detention pending dispositional placement in a high-risk residential program. The risk assessment instrument (RAI) prepared in C.L.C.’s ease did not authorize secure detention. The trial court, however, provided clear and convincing written reasons for ordering secure detention pursuant to the “departure provision” of the juvenile detention statute. See § 985.215(2), Fla. Stat. (2003); J.J. v. Fryer, 765 So.2d 260, 265 (Fla. 4th DCA 2000) (concluding that departure provision provides “the authority to depart from an RAI and order more severe detention ... based on ‘clear and convincing reasons’ which the judge must state in writing”) (emphasis omitted). This case is distinguished from J.W. v. Leitner, 801 So.2d 295, 297 (Fla. 2d DCA 2001), where the trial court did not attempt to avail itself of the “departure provision.”

The petition for writ of habeas corpus is denied.

WARNER, KLEIN and GROSS, JJ., concur.


author: HAZOURI, J.

text:
    Diana TAYLOR, Appellant, v. INSTITUTE FOR MEDICAL WEIGHT LOSS and Gary W. Mallow, M.D., Appellees.
    No. 4D03-1280.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 2003.
    Robert Garven, Coral Springs and Charles D. Franken of Charles D. Frank-en, P.A., Plantation, for appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellees.
   HAZOURI, J.

Appellant, Diana Taylor, appeals from an entry of a final judgment against her in favor of appellees, Dr. Gary Mallow and the Institute for Medical Weight Loss, in a medical malpractice action against them. We reverse.

Taylor filed her complaint for medical malpractice against appellees on May 4, 1998. The complaint included an opinion letter from Dr. Stephen Deutsch asserting the appellees’ breach of the accepted standard of care. The letter indicates that Dr. Deutsch was trained in psychiatry and psyehopharmaeology and was a member of the American College of Neuropsycho-pharmacology. It was alleged in the complaint that appellees treated Taylor for her obesity by prescribing “pfen fen” without considering her medical history, which resulted in an exacerbation of her mental condition. Appellees answered the complaint, denied the allegations, and asserted various affirmative defenses.

Taylor filed her first Notice to Set Cause for Trial by Jury on April 16, 2001. The case was set for calendar call starting October 22, 2001. On August 13, 2001, Taylor disclosed her expert witness for trial, Dr. Deutsch, who would testify concerning causation and deviation from the accepted standard of care. Dr. Deutsch was the only physician listed by Taylor on the issue of standard of care.

The case did not go forward to jury trial in October of 2001 because Taylor was unable to schedule the deposition of appel-lee, Dr. Mallow, in a timely fashion and subsequent thereto the trial court granted appellees’ motion to stay because of the insolvency of the appellees’ insurance carrier. That stay was entered on September 11, 2001, and not lifted until September 25, 2002. At that time Taylor again noticed the case for trial and it was reset for calendar call February 14, 2003, for the trial period from February 24 through March 14, 2003.

On February 11, 2003, Taylor filed a motion to continue the trial because her counsel had just recently been advised by Dr. Deutsch that he was unwilling to participate further in the proceedings and would be unwilling to testify either by way of deposition or at trial. Taylor’s counsel advised the trial court that he could not obtain any explanation from Dr. Deutsch as to why he suddenly was unwilling to testify in the cause and after a brief telephone conversation with Dr. Deutsch, he refused to return any telephone calls or respond to any letters of inquiry. There is no evidence to suggest that Taylor’s counsel could have anticipated Dr. Deutsch’s lack of cooperation and decision to withdraw from acting as an expert witness prior to this “eleventh hour” decision. The trial court denied the motion for continuance. Thereafter, Taylor’s counsel was able to obtain the services of Dr. Abbey Strauss as an expert witness on the standard of care. However, appellees moved to strike Dr. Strauss as a witness as the time for listing expert witnesses as prescribed by the pre-trial order had long since passed. The trial court granted the appellees’ motion to strike Dr. Strauss.

On February 24, 2003, Taylor filed her renewed motion to continue the trial and motion to reconsider the striking of the expert witness, Dr. Strauss. A hearing was held the morning just preceding the start of the trial and the trial court denied both motions. The trial court then dismissed the action, treated the dismissal as an adjudication on the merits and entered final judgment in favor of the appellees on February 27, 2003.

The decision to grant or deny a continuance is within the trial court’s discretion and that decision will not be disturbed on appeal absent an abuse of discretion. See O.S. v. Dep’t of Children and Families, 821 So.2d 1145, 1149 (Fla. 4th DCA 2002). In Fleming v. Fleming, 710 So.2d 601 (Fla. 4th DCA 1998), this court held:

Factors to be considered in determining whether the trial court abused its discretion in denying the motion for continuance include whether the denial of the continuance creates an injustice for the movant; whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance.

Id. at 603.

Under the facts of the instant case there can be no question that the denial of the continuance created an injustice for Taylor. It also appears that from the statements made to the court by Taylor’s counsel that Dr. Deutsch’s refusal to appear and perform his part of the contract to testify as an expert was unforeseeable. There also was no evidence or suggestion that Taylor’s counsel was engaged in any type of dilatory practice. Just the opposite is true. This matter had been stayed for approximately one year upon appellees’ motion to stay the proceedings because of the insolvency of the appellees’ insurance carrier. It wasn’t until September 25, 2002, when Taylor filed a motion to lift the stay that this matter was reset for trial. And, finally, there was no showing that the appellees would suffer any prejudice or inconvenience as a result of the continuance.

Although we recognize that trial judges have wide latitude in exercising their discretion as to whether to grant a continuance, that discretion is not unbridled. If there had been evidence that Taylor’s counsel had knowledge much earlier in the proceedings that Dr. Deutsch would not be cooperative, then the trial judge would have been justified in denying the motion to continue. However, in the instant case, there was no misconduct on the part of Taylor’s counsel nor any dilatory practice on his part and with Dr. Deutsch being his sole expert witness on the standard of care, the trial court’s denial of Taylor’s motion to continue was a clear abuse of discretion. We, therefore, reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WARNER and GROSS, JJ., concur.

      . Dr. Deutsch resided and practiced in the Washington, D.C., area and had been retained by Taylor's counsel in 1998.


text:
    Joshua HAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2922.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2003.
    Appellant, pro se.

      Charlie Crist, Attorney General, Shasta W. Kruse, Assistant Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of November 19, 2003, the Court has determined that the notice of appeal was not timely filed. Thus, the Court lacks jurisdiction to review the order on appeal. Accordingly, the appeal is hereby dismissed.

DISMISSED.

BOOTH, BENTON and LEWIS, JJ., concur.


text:
    Cecilia STAPP, Appellant, v. Albert J. MOTTA, Jr., Appellee.
    No. 1D03-0159.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2003.
    John S. Mills and Rebecca Bowen Creed of Mills & Carlin, P.A., Jacksonville, for Appellant.
    Albert Datz and Lawrence C. Datz of Datz & Datz, P.A., Jacksonville, for Appel-lee.
   PER CURIAM.

Cecilia Stapp appeals an order granting modification of the alimony paid to her by her former husband, Albert J. Motta, Jr., appellee, arguing that the trial court abused its discretion in granting modification and in refusing to award attorney’s fees to her. Given the substantial decrease in the income of Mr. Motta, which the trial court found was permanent, we affirm the order of modification. Mastromonico v. Mastromonico, 685 So.2d 74, 76 (Fla. 1st DCA 1996). Notwithstanding the former husband’s decrease in income, the record reflects that there is a disparity in the parties’ respective income and ability to pay. Given this disparity, the trial court abused its discretion in denying the former wife’s petition for an award of attorney’s fees. See Rosen v. Rosen, 696 So.2d 697 (Fla.1997), Segovis v. Anderson, 686 So.2d 757 (Fla. 1st DCA 1997); Nowell v. Nowell, 634 So.2d 235 (Fla. 1st DCA 1994).

AFFIRMED in part, REVERSED in part, and REMANDED.

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


author: FULMER, Judge.

text:
    David C. REED, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Kelly Services, Inc., Appellees.
    No. 2D03-515.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.
    David C. Reed, pro se.
    Geri Atkinson-Hazelton, General Counsel, for Appellee, Unemployment Appeals Commission.
    No appearance for Kelly Services, Inc.
   FULMER, Judge.

David C. Reed appeals the decision of the Unemployment Appeals Commission disqualifying him from receiving benefits and ordering him to repay $936 in overpaid benefits. We reverse because the appeals referee ruled against Reed on an issue that arose for the first time during the hearing.

Reed initially applied for unemployment benefits in June 2001. He was found eligible to receive temporary extended unemployment compensation in May 2002. The employer, Kelly Services, a temporary employment agency, contested the benefits, claiming that it made Reed an offer to work for thirty-one days on April 23, 2002, and Reed refused the offer due to having other plans. In June 2002, a claims adjudicator found Reed ineligible for benefits from April 21, 2002, because an offer of suitable work was refused without cause. Reed was found to owe $562 in overpaid benefits.

Reed appealed the determination and a telephonic hearing was conducted at which testimony was taken from Karen Webb, the employer representative, and Reed. Webb testified that the only documented offer of work was made to Reed on April 23 by the manager, Alham Ketcham. It was an assignment that started on May 1 and lasted for thirty days. According to an office document, Reed turned down the offer because he said he had other plans for the day.

In response, Reed testified that he was not offered a job on April 28 and he never spoke to Ms. Ketcham. The only offer he had received was on April 9, when he spoke to Karen Webb, who offered him a job for five days, from April 10 through 14. Reed told her he could not work on April 10 because he had plans to attend the theater, but he agreed to work from April 11 through 14. The appeals referee asked Ms. Webb if she recalled making the offer on April 9. She replied that she did recall but that she had not documented the conversation, and “the refusal of work in question was this other date afterwards.”

The appeals referee issued a decision finding that Reed was disqualified from receiving benefits because he had refused an offer of work on April 9, 2002. Reed was ordered to repay $936 rather than the $562 previously held by the claims adjudicator. The appeals referee, however, specifically found that Reed was not offered any work on April 23, 2002. Reed appealed the referee’s decision and the Commission affirmed.

The sole issue presented to the appeals referee by the employer was whether Reed refused suitable work on April 23. The issue of whether Reed refused work on April 9 did not arise until after Reed testified that he had not been contacted for work on April 23. The April 9 job offer was not documented by the employer, and as the employer’s representative acknowledged, it was not the refusal-of-work incident in question at the hearing.

“Due process requires that the claimant receive proper notice of the issues to be heard or expressly waive such notice; otherwise the claimant is deprived of a fair hearing.” Smith v. Unemployment Appeals Comm’n, 751 So.2d 639, 640 (Fla. 1st DCA 1999). The April 9 offer of work had not been an issue before the claims adjudicator, and the appeals referee had no authority to expand the scope of the hearing to include the April 9 incident and to use that incident as the sole reason to disqualify Reed from benefits. See id. Once the appeals referee determined that the employer did not make an offer of work to Reed on April 23, the disqualification of benefits should have been reversed. See id.

Accordingly, we reverse the order of the Commission affirming the referee’s decision and direct that Reed’s benefits be reinstated.

Reversed and remanded.

WHATLEY and NORTHCUTT, JJ„ Concur.


author: GUNTHER, J.

text:
    Michael SAMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-156.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GUNTHER, J.

Michael Sampson timely appeals his convictions for possession of cocaine and cannabis with intent to distribute. We reverse and remand the trial court’s denial of a portion of Sampson’s motion for judgment of acquittal, but affirm in all other respects.

Officer Broughton, a Lauderhill police officer, observed Sampson riding a bicycle without the headlight on at about 1:10 a.m. Officer Broughton stopped Sampson and asked him about the headlight. Sampson told him he was on the way home from a friend’s house and had not realized the light was out.

Officer Broughton took Sampson into custody and searched the bike Sampson was riding. Hanging from the back of the bike was a fanny pack. Inside the fanny pack was a cigarette box containing cocaine rocks weighing 7.4 grams, a case containing cocaine rocks weighing 5.5 grams, and twenty-nine clear plastic bags containing cannabis.

Sampson was charged with one count of unlawful possession “with intent to sell manufacture or deliver, a controlled substance, to wit: Cocaine” and one count of unlawful possession “with intent to sell, manufacture or deliver for consideration, a controlled substance, to wit: Cannabis.”

Sampson testified at trial that the bike he was riding on the night in question was borrowed from a friend. Sampson also testified that at no time did he look inside the fanny pack on the bike. Sampson filed a motion for judgment of acquittal, which was denied. Sampson was convicted on both counts and now argues that the trial court erred in denying his motion for judgment of acquittal.

The standard of review for a court’s denial of a judgment of acquittal is de novo. Johnston v. State, 863 So.2d 271, 2003 WL 22349638 (Fla. Oct. 16, 2003) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). Although Sampson moved for a judgment of acquittal on several grounds, we find that only one aspect of Sampson’s motion for judgment of acquittal was improperly denied. Here, the State concedes that it failed to present sufficient evidence to prove intent to sell or deliver cocaine.

The record reveals that while 12.9 grams of cocaine were found in the fanny pack, the State failed to present evidence that the amount of cocaine found was inconsistent with personal use or that there was any other indication that Sampson intended to sell the cocaine. Thus, the denial of Sampson’s judgment of acquittal on this ground was improper. See McCullough v. State, 541 So.2d 720, 721 (Fla. 4th DCA 1989) (stating that the quantity of cocaine found can prove intent to sell where this amount is inconsistent with personal use, but finding that reversal was warranted as no evidence was presented that the defendant intended to sell the cocaine or that the cocaine was inconsistent with personal use as the 6.15 grams of cocaine found was not sufficient in and of itself to prove intent to sell).

Although the prosecution failed to present sufficient evidence of Sampson’s intent to sell cocaine, sufficient evidence was presented regarding the lesser included offense of possession. Thus, pursuant to section 924.34, Florida Statutes (2002), Sampson’s conviction for possession of cocaine with intent to sell is reversed and the trial court is directed to enter judgment for possession of cocaine.

AFFIRMED in part, REVERSED and REMANDED in part.

FARMER, C.J., and SHAHOOD, J., concur.


text:
    Michael BENJAMIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3886.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.
    Michael Benjamin, pro se, petitioner.
    Charles Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Michael Benjamin is hereby afforded a belated appeal from the order denying postconviction relief in Nassau County case number 02-97-CF. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, and shall be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

KAHN, WEBSTER and DAVIS, JJ., concur.


text:
    Ricky Lamar LEWIS, Petitioner, v. STATE of Florida, Respondent.
    Nos. 1D03-1486, 1D03-2579.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.
    Ricky Lamar Lewis, pro se, petitioner.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Ricky Lamar Lewis petitions this court for a writ of mandamus to compel the circuit court to act on his motion for post-conviction relief, and for a writ of prohibition to order the disqualification of the trial judge in the proceedings before the circuit court. For the reasons set forth below, we grant the mandamus petition but deny the prohibition petition.

Lewis filed a motion for postconviction relief, an amended supplemental motion for postconviction relief, and a second amended supplemental motion for postcon-viction relief in the Circuit Court for Santa Rosa County. By order of May 29, 1998, the court entered an order which directed that a hearing would be held on 13 of the 14 claims raised by Lewis in the above-described motions.

In August of 1997, Lewis also filed a 3.850 motion/habeas corpus petition in the same case number. Three months later, he filed a notice of voluntary dismissal which, according to Lewis, applied only to the 3.850 motion/habeas petition of August 1997. The circuit court has taken the position that the entire postconviction case is closed and that no further proceedings are warranted. We have carefully reviewed the petition for writ of mandamus, the documents in the appendix, and considered the arguments of respondent in opposition to the requested relief. We agree with petitioner that he only dismissed the 3.850 motion/habeas petition which was filed in August of 1997. Therefore, the other claims for postconviction relief, including those upon which an evidentiary hearing was previously ordered, remain pending.

The circuit court has declined to rule on Lewis’ motion for disqualification, taking the position that it was unnecessary to do so because the case was closed. Because we have now concluded that the judge was incorrect in that regard, the judge shall promptly consider and rule upon the motion. The petition for writ of prohibition is premature, however, until that ruling is made, and is denied for that reason.

PETITION FOR WRIT OF MANDAMUS GRANTED; PETITION FOR WRIT OF PROHIBITION DENIED.

KAHN, WEBSTER and DAVIS, JJ., concur.


text:
    Ricardo DOMINGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3083.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2003.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for Appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and WELLS, JJ.
   PER CURIAM.

The defendant appeals his conviction and sentence for aggravated assault. We affirm the conviction but reverse the sentence.

The defendant was charged with two counts of aggravated assault and one count of resisting arrest. At the time of his arrest, he was on probation and was subsequently charged with violating it. At the start of his probation violation hearing, the trial court inquired if there was a plea offer. The prosecutor responded that the offer was 39.52 months as an habitual felony offender which would resolve both cases. The defendant turned down the plea offer.

The trial court sentenced the defendant to five years for violation of his probation. The trial court then questioned the defendant to see whether it could dispose of the substantive case. The trial court informed the defendant that the minimum guideline sentence was 4.41 years. It appears the trial court was willing to offer the defendant a sentence of 4.41 years to run concurrent with his probation violation sentence, if he pled guilty. The defendant again turned down the plea offer. Prior to trial, one of the counts for aggravated assault was nolle prossed when one of the alleged victims could not be found for trial.

The case proceeded to trial, and the jury convicted the defendant of one count of aggravated assault but acquitted him of the count of resisting an officer. The trial court sentenced the defendant to seventeen years in prison as an habitual felony offender followed by five years of probation. We agree that the seventeen-year sentence was vindictive.

In Wilson v. State, 845 So.2d 142 (Fla.2003), the Supreme Court held that district courts should employ a totality of the circumstances review when determining “whether a defendant’s constitutional right to due process of law was violated by the imposition of an increased sentence after unsuccessful plea discussions in which the trial judge participated.” Wilson, 845 So.2d at 156. The Supreme Court outlined several factors that should be considered in determining whether there is a reasonable likelihood that the harsher sentence was imposed in retaliation for the defendant not pleading guilty. These factors include: judicial participation in plea negotiations followed by a harsher sentence; the trial court’s initiation of the plea discussions; an appearance of the trial court’s departure from his role as an impartial arbiter; the disparity between the plea offer and the ultimate sentence imposed; and the lack of any facts on the record that explain the reason for the increased sentence other than the defendant exercising his or her right to trial. Wilson, 845 So.2d at 156.

Several of these factors are present in this case. The trial court participated in plea negotiations and offered the defendant a plea of 4.41 years prior to trial. One of the counts was nolle prossed prior to trial and the jury acquitted the defendant of a second count, yet the trial court imposed a seventeen-year sentence. The reasons for the disparity between the state’s original 39.53 month plea offer, the court’s subsequent 4.41 year offer and the seventeen-year sentence imposed by the court are not apparent from the record. Under the totality of the circumstances, there is a reasonable likelihood that the harsher sentence was imposed in retaliation for the defendant exercising his right to proceed to trial. See Blanco v. State, 849 So.2d 381 (Fla. 3d DCA 2003). The defendant is entitled to be resentenced by a different judge.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.