author: WARNER, J.

text:
    Floyd DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2448.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant was charged with and convicted of burglary of a church office during a Sunday morning worship service. He complains that the trial court committed fundamental error when instructing the jury that it could find him guilty if, at the time he entered or remained in the structure, he had a fully formed and conscious intent to commit a crime on the premises. We hold that the instruction given did not constitute fundamental error because there was evidence that appellant surreptitiously remained on the premises with the intent to commit the offense.

The church in question consists of a sanctuary that has windows looking onto a hallway lined with five classrooms and a minister’s office, which contains a desk where the offering box is stored. The office door has no signs on it indicating that it is a private office or for church personnel only. It is usually closed and locked and is not open to members of the public. However, it is unlocked when the classrooms are in use so that teachers may use the photocopier inside the office. Three classrooms were in use at the time of the incident in this case.

On the Sunday in question, the associate pastor noticed appellant walking in the hallway. She exited the sanctuary to greet appellant whom she did not recognize as a member of the congregation. As she entered the hallway, she saw the minister’s office door open and close. She walked past the doorway, which has a small panel of glass on it, and observed appellant going through the desk drawers. She called for the pastor, and the two of them approached appellant.

The pastor asked appellant if he needed help, and appellant said he was waiting for someone. The pastor asked appellant what he had in his pocket. As appellant reached into his pocket, the pastor heard the rustling of paper. Though appellant pulled out some keys, his pocket still appeared to be bulging. By this time, the associate pastor had checked the offering box and found it was empty. When the pastor asked appellant about the money, he ran. Ultimately, he was apprehended. At first he denied taking anything from the church, but when the police arrested him and a search revealed $36 in his pocket, he offered to give back the money to avoid going to jail.

At trial, appellant argued that his entry into the church was consensual, as the church was open to the public for Sunday services. He suggested that the hallways were filled with people, and the office looked just like one of the classrooms which were open to the public. There was no indication that the office was not open to the public so that appellant would have knowledge that he was not allowed to enter the office.

The trial court gave the standard jury instruction without objection, stating:

Before you can find the defendant guilty of burglary, the State must prove the following three elements beyond a reasonable doubt.
Element number one, the defendant entered or remained in a structure owned by or in the possession of New Life Church of.God.
Number two, the defendant did not have the permission or consent of New Life Church of God, or anyone authorized to act for them, to enter or remain in the structure at the time.
Number three, at the time of entering or remaining in the structure, the defendant had a fully formed conscious intent to commit the offense of theft in that structure.
A person may be guilty of this offense if he entered into or remained in areas of the premises which he knew or should have known, were not open to the public, if he had the intent to commit the crime described in the charge.

The jury found appellant guilty of burglary of a structure and other charges not relevant to this appeal.

Burglary of a structure may be committed in two ways: (1) by entering a structure without permission with an intent to commit an offense, or (2) by surreptitiously remaining in a structure with an intent to commit an offense. See Alexandre v. State, 834 So.2d 344, 346 (Fla. 4th DCA 2003); § 810.02(1)(b), Fla. Stat. (2001). Where the facts of the case cannot support a “surreptitious remaining” after a consensual entry, inclusion of the “remaining in” language of the standard jury instruction constitutes fundamental error. Floyd v. State, 850 So.2d 383, 402 (Fla.2002).

Relying on Lopez v. State, 805 So.2d 41 (Fla. 4th DCA 2001), appellant claims that including the “remaining in” language in the jury instruction was error because there was no evidence that appellant had consent to be in the church office. Lopez held that it was fundamental error to include the “remaining in” language in the instruction where there was no evidence that defendant’s entry was consensual, as it may allow the jury to convict a defendant of burglary where the intent to commit an offense was formed after a noncon-sensual entry. See id. at 43. However, we receded from Lopez in Roberson v. State, 841 So.2d 490, 493 (Fla. 4th DCA 2003), and held that whether the “remaining in” language constitutes fundamental error depends upon the facts of the particular case.

The facts of this particular case are similar to those in Jones v. State, 843 So.2d 946 (Fla. 4th DCA 2003), where a defendant entered the open door of a dormitory room, closed it behind him, and proceeded to walk towards the crates of the occupant’s music collection until stopped by the occupant who was on the top bunk bed in the dorm room. He was charged with burglary. At trial, the judge included the “remaining in” language in the jury charge. We held that the charge was not fundamentally erroneous, because the defendant had argued that the open dorm room door constituted implied consent to enter and that defendant’s act of shutting the door after entry “was an attempt to conceal his presence which amounted to surreptitiously remaining inside.” Id. at 948.

In this case, defense counsel argued to the jury that the church was open to the public and nothing indicated that the minister’s office was off limits to appellant. However, just as in Jones, appellant shut the door of the office behind him, which the jury could have determined was an act to conceal himself. Although this door had a narrow window in it, the closed door would conceal most activity. Because there was some evidence of concealment, and thus a surreptitious remaining in, we conclude that the instruction given did not constitute fundamental error.

We affirm as to all remaining issues raised.

POLEN and STEVENSON, JJ., concur.

      . The Legislature amended the burglary statute effective July 1, 2001. As this incident occurred a month later, the amended version of the statute would apply.


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Cherice PETERSEN, Appellee.
    No. 4D02-3043.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Frances F. Guasch of Luis E. Ordonez & Associates, Miami, for Appellant.
    Guy Bennett Rubin of Rubin & Rubin, Stuart, for Appellee.
   TAYLOR, J.

In this uninsured motorist action, State Farm Mutual Automobile Insurance Company appeals from a final judgment awarding costs and attorney’s fees under section 627.428, Florida Statutes 2001. We reverse because the record shows that State Farm did not dispute coverage under the policy, as is required for recovery of fees pursuant to section 627.727(8), Florida Statutes.

Appellee was involved in a rear-end collision and sought uninsured motorist benefits from her insurance carrier, State Farm. In response to the allegation in appellee’s complaint that “an insurance policy existed between Plaintiff ... and State Farm,” State Farm answered that it “admits the existence of an automobile insurance policy and states that the policy provisions speak for themselves.” It denied all other factual allegations, disputed the amount of damages, and asserted a threshold defense.

During litigation, appellee filed a civil remedy notice, which State Farm was required to cure within sixty days. Just before trial, within the sixty-day period, State Farm cured the notice and tendered its policy limits. The parties then settled. Later, after appellee moved to compel enforcement of the settlement, the settlement was enforced and a release was executed.

Thereafter, appellee moved for attorney’s fees and costs, pursuant to section 627.428, Florida Statutes. State Farm opposed the motion, arguing that appellee was not entitled to fees and costs because section 627.727(8), Florida Statutes, pre-eludes an award of attorney’s fees in an uninsured motorist action where there is no denial of uninsured motorist coverage. While conceding that State Farm admitted “the existence of the policy,” appellee contended that this admission was not an admission of coverage. The trial court agreed and granted appellee’s motion for attorney’s fees and costs on the authority of Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So.2d 217 (Fla.1983), and Moore v. Allstate Insurance Co., 570 So.2d 291 (Fla.1990).

In Wollard, the supreme court held that a settlement between an insured and insurer provides a basis for an award of attorney’s fees to the insured under section 627.428, Florida Statutes. In Moore, however, the court clarified that section 627.727(8), Florida Statutes, limits the fees awardable under section 627.428 to those UM actions where the insurance carrier denies coverage. Section 627.727(8) provides:

The provisions of s. 627.428 do not apply to any action brought pursuant to this section against the uninsured motorist insurer unless there is a dispute over whether the policy provides coverage for an uninsured motorist proven to be liable for the accident.

The supreme court allowed the recovery of fees in Moore, because, unlike here, the carrier initially disputed the existence of UM coverage for the accident. Holding that the plaintiff could recover fees only for that portion of the case where the carrier disputed coverage, the court explained that the uninsured motorist provisions of section 627.727 were intended to place the injured party in the same position as he would have been had the tort-feasors been insured. Id. at 293. The court stated:

Section 627.727(8) accomplished this purpose by directing that an insurer pay attorney’s fees for the coverage issue when the insured prevails. We can find no legislative intent to place the insured in a better position than he would have been in if the tortfeasor had been insured.

In this case, the trial court relied on Moore in awarding attorney’s fees to ap-pellee. Apparently, after reviewing State Farm’s answer and affirmative defenses, the trial court concluded that State Farm had denied coverage.

Our review of the pleadings and litigation below, however, leads us to conclude that State Farm did not dispute the existence of UM coverage for this accident, but rather defended the action based on non-coverage issues. State Farm specifically admitted the existence of insurance coverage. It denied the following allegations of paragraph 9 of the complaint:

[P]ursuant to the uninsured/underin-sured motorist provisions of the Plaintiffs insurance policy and Section 627.727 of the Florida Statutes, Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, is responsible for the damages sustained by Plaintiff as a result of the actions of [the other driver] in that [he] was under-insured to compensate the Plaintiff for the injuries she has sustained. Plaintiff is legally entitled to recover said uninsured/underinsured motorist benefits from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

State Farm’s denial of these allegations, however, does not amount to a denial of coverage. Under section 627.727(8), in order to demonstrate entitlement to fees in a UM action, there must be a dispute over whether the policy provides coverage for an uninsured motorist proven to be liable for the accident. That necessarily allows for the insurance company to dispute liability, without automatically disputing coverage. See State Farm Mut. Ins. Co. v. Roster, 582 So.2d 735 (Fla. 3d DCA 1991)(holding that the plaintiff was not entitled to attorney’s fees pursuant to section 627.428 because the insurance company did not deny coverage; the litigation instead dealt with the liability of the uninsured motorist, the amount of the plaintiffs damages, and whether the plaintiff sustained permanent injuries).

Although State Farm did not cite the provision in appellee’s insurance policy setting forth the amount of coverage, it did acknowledge that a policy existed between the parties and that the coverage provided by the policy was subject to the terms and conditions of the policy. We reject appel-lee’s contention that State Farm’s admission of the existence of “the policy” was not an admission of coverage. As State Farm suggests, “this is a distinction without a difference.” More important is the fact that State Farm never disputed coverage. Any denial by State Farm was as to issues of liability of the underinsured motorist, damages, permanency, and other statutory threshold, non-coverage defenses. That coverage was never in dispute is further demonstrated by other documentary evidence in this case. The joint pretrial stipulation, witness and exhibit lists, discovery, and proposed verdict forms all show that coverage was not an issue. Additionally, the parties never filed or litigated any motions for summary judgment or other pleadings concerning a coverage dispute.

We conclude, therefore, that the trial court erred in awarding fees and costs under section 627.428 and reverse the judgment.

REVERSED.

HAZOURI and MAY, JJ., concur.


author: HAZOURI, J. STONE, J.,

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. M.M., Minor Child, Appellee.
    No. 4D02-4087.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori R. Shapiro, Assistant Attorney General, Fort Lauderdale, for appellant.
    David S. Bazerman, Children’s Advocacy Program, Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appel-lee.
   HAZOURI, J.

The Department of Children and Families (Department) appeals from an order entered by the trial court finding the Department in contempt for its failure to comply with the trial court’s order directing the Department to step down M.M. to a therapeutic foster home. We reverse.

On January 8, 2002, a hearing was held for review of M.M.’s dependency status. M.M. had been adjudicated dependent and was living in the care and custody of the Department in a residential sex offender program. At the hearing on January 8, 2002, the court considered the recommendation contained in a psychological evaluation of M.M. that he be stepped down to a therapeutic foster home from his current placement in a residential sex offender program. At the conclusion of the hearing the trial court ordered the Department to place M.M. in a therapeutic foster home. Due to the unavailability of such foster care appropriate for M.M.’s needs, the Department was unable to comply with the trial court’s order. The trial court thereafter found the Department in indirect civil contempt of the court’s order of January 8, 2002 and ordered the Department to pay the sum of $350.00 a day for every day that M.M. was not placed in an appropriate stepped down program.

A party may be held in contempt only where the court has determined that the violation of the court order was willful and makes an express finding that there is an ability to comply. See Dep’t of Health & Rehab. Servs. v. Maxwell, 667 So.2d 980 (Fla. 4th DCA 1996).

The trial court did not make any such findings, and the testimony presented established that efforts were made to comply with the court order, but that there was not a placement for M.M. The trial court erred in holding the Department in contempt. The trial court also erred in assessing a penalty to be paid for the benefit of M.M. The trial court heard no evidence regarding any alleged damages to M.M. due to the failure of the Department to step down his placement, yet the court held the penalty was to be paid to “offset the damages he suffered.”

Accordingly, the order of contempt is reversed.

POLEN, J., concurs.

STONE, J., concurs specially with opinion.

STONE, J.,

concurring specially.

I concur in the majority opinion, but would add that the frustration of the trial court with the insufficient attention and slipshod effort by the department is certainly understandable. Although the record supports a conclusion that the department was negligent and did not exercise its best efforts in this case, even the trial court did not make a finding that the department had the ability to make the placement and willfully refused to do so.


author: PER CURIAM.

text:
    Radames TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3704.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice for appellant to file a Florida Rule of Criminal Procedure 3.800(a) motion to correct sentencing error.

STONE, SHAHOOD and HAZOURI, JJ., concur.


author: FARMER, C.J.

text:
    BANKERS INSURANCE COMPANY, Appellant, v. Maritza ROJAS, Adriano Rojas, United Premium Budget Plan, Inc., a corporation, General No-Fault Insurance, Inc., a corporation, Appellees.
    Nos. 4D02-150, 4D02-151.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.

      Patrick B. Flanagan of Flanagan, Ma-niotis, Berger & Ryan, P.A., West Palm Beach, for appellant.
    Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., and Jene Williams of Liggio, Benrubi & Williams, P.A., West Palm Beach, for appellees Maritza and Adriano Rojas.
   FARMER, C.J.

This is an epilogue to our decision in Bankers Ins. Co. v. General No-Fault Ins., Inc., 814 So.2d 1119 (Fla. 4th DCA 2002), rev. denied, 835 So.2d 265 (Fla.2002). The subject of today’s appeal is attorneys fees. In light of our disposition of the appeal on the merits, we hereby reverse the award of fees to General No-Fault from Bankers. As to the award of fees to the insureds from Bankers, and in light of the concession of counsel, we remand to the trial court to reduce the amount of the fees awarded by the number of hours for the defense of the suit against the other driver. In all other respects we find no error in the award of fees to the insureds and hereby affirm on all other issues.

KLEIN and SHAHOOD, JJ., concur.


author: GROSS, J.

text:
    Woodrow SORRELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2050.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for Appellee.
   ON MOTION FOR REHEARING AND CLARIFICATION

GROSS, J.

We grant the State’s motion for rehearing and clarification, withdraw our previous opinion, and substitute the following.

Woodrow Sorrell appeals his conviction of driving while his license was permanently revoked, contrary to section 322.341, Florida Statutes (2001)., Although we reject appellant’s attacks upon the evidence at trial, we reverse appellant’s conviction in light of Florida Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003).

Contrary to appellant’s argument, at the non-jury trial, the state proved by competent evidence that appellant’s license had been revoked. A copy of his driving record was properly admitted pursuant to section 322.201, Florida Statutes (2001). Notice of the revocation was established pursuant to section 322.251(2), Florida Statutes (2001). See State v. Tucker, 832 So.2d 218, 218-19 (Fla. 2d DCA 2002) (holding that computerized driving record is sufficient to establish a prima facie case that defendant’s driver’s license has been revoked, and that indication of notice in record is sufficient evidence that the defendant received notice of the revocation); Rodgers v. State, 804 So.2d 480, 483 (Fla. 4th DCA 2001).

It was not necessary for the state to prove at trial the DUI convictions which formed the basis for the license revocation. Appellant cites to cases under the DUI statute, where previous convictions constitute an element of the crime charged. See Jackson v. State, 788 So.2d 373, 374 (Fla. 4th DCA 2001) review denied, 807 So.2d 654 (Fla.2002); Coyne v. State, 775 So.2d 969, 969-70 (Fla. 4th DCA 2000) (holding that jury must consider whether the defendant has been convicted of the three prior DUIs before concluding the defendant is guilty of felony DUI). Here, it is the existence of the revocation which is an element of the crime charged, not the prior DUI convictions.

Confronting a statute similar to the one at issue in this case, this court has disposed of an argument identical to the one appellant makes here. Section 322.34(5), Florida Statutes (2001), prohibits driving while license is suspended (DWLS) as an habitual offender. See Rodgers, 804 So.2d at 483. We held in Rodgers that the statute did

not involve — as an element of the crime — a finding that the motorist has been convicted on three separate occasions of DWLS. Instead it involves driving a motor vehicle on the public highways of Florida at a time when DMV has revoked the motorist’s license and given notice of the revocation. Thus it is not necessary for the state to prove each separate conviction of DWLS which DMV relied on in revoking the license.

Id. (emphasis added). We wrote in Rodgers,

[t]o sum up the requirements for a conviction under section 322.34, the statute as written by the Legislature merely makes it necessary for the state to prove by competent evidence that DMV maintains a record on the motorist, that its record shows the requisite three separate DWLS convictions within a 5 year period, and that DMV gave the motorist the statutory notice. These statutes permit the state to make this proof by presenting a certified copy of the motorist’s driving record maintained by DMV. That is what the state did in its prosecution in this case. Hence the state made out a prima facie case, which allowed the trier of fact to find defendant guilty of the section 322.34(5) violation.

Id.; see also State v. Fields, 809 So.2d 99, 101 (Fla. 2d DCA 2002) (following Rodgers ). Because the statute in Rodgers is so similar to section 322.341, Rodgers compels the conclusion that in this case the state made a prima facie case by introducing a copy of the driving record which showed the requisite permanent revocation on its face.

It is appellant’s second argument that has merit. In Critehfield, the supreme court declared that Chapter 98-223, Laws of Florida, violated the single subject rule in Article III, Section 6 of the Florida Constitution. Section 13 of Chapter 98-223 created the crime at issue in this case, driving under a permanent license revocation, a third degree felony.

The supreme court’s decision turned on section 2 of Chapter 98-223, which created section 832.10, involving a payee’s placement of a worthless check for collection by a private debt collector prior to presenting the check to the state attorney for prosecution. The supreme court wrote that section 2 had “no natural or logical connection to driver’s licenses, operation of motor vehicles, or vehicle registrations. Thus, we conclude that chapter 98-223 violates the single subject rule.” Critchfield, 842 So.2d at 786.

Because chapter 98-223, the statute creating section 322.341, is unconstitutional, appellant cannot be convicted of that crime. See McCormick v. State, 826 So.2d 476, 477 (Fla. 5th DCA 2002).

The next question is what happens to this case once section 322.341 is declared unconstitutional, rendering that count of the information a non-existent crime. At the non-jury trial, the state did not request the trial judge to consider any lesser included offenses. We hold that the defendant may be retried for “any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the ... information and is supported by the evidence.” Fla. R.Crim. P. 3.510(b).

At first blush, it might appear that State v. Gibson, 682 So.2d 545 (Fla.1996), followed upon remand, 685 So.2d 76, 77 (Fla. 1st DCA 1996), would control. Gibson involved a criminal offense which only became “non-existent” when the supreme court decided State v. Gray, 654 So.2d 552 (Fla.1995). See State v. Wilson, 680 So.2d 411, 412 (Fla.1996). Here, section 322.341 became similarly non-existent when the supreme court decided in Critchfield that Chapter 98-223 failed to meet constitutional muster.

In Gibson, the supreme court held that where a defendant was convicted at trial of a non-existent crime, the defendant could be retried only for those lesser offenses instructed upon at trial. The court reasoned that any offense not instructed at trial was a “related offense” that must be dismissed by application of Florida Rule of Criminal Procedure 3.151(c), which provides:

(c) Dismissal of Related Offenses after Trial. When a defendant has been tried on a charge of 1 of 2 or more related offenses, the charge of every other related offense shall be dismissed on the defendant’s motion unless a motion by the defendant for consolidation of the charges has been previously denied, or unless the defendant has waived the right to consolidation, or unless the prosecution has been unable, by due diligence, to obtain sufficient evidence to warrant charging the other offense or offenses.

The crucial distinction between this case and Gibson is that this case involved not a jury, but a non-jury trial.

In a jury trial, the only way that a defendant can be “tried on a charge” within the meaning of rule 3.151(c) is for the jury to be instructed on a charge, so that the charge becomes a potential verdict.

In a non-jury trial, a lesser included offense does not become injected into a trial because of a jury charge or verdict form. A defendant is “tried” within the language of rule 3.151(c) on a lesser charge in a non-jury trial if a conviction on the lesser charge is one of the outcomes permitted by Florida Rule of Criminal Procedure 3.510.

The trial judge has the inherent power to find a defendant guilty of a lesser included offense. We acknowledged this power in Payne v. State, 275 So.2d 261, 262 (Fla. 4th DCA 1973), an appeal from a non-jury trial where we observed that both Florida Rule of Criminal Procedure 3.510 and “case construction” allowed a defendant to be convicted of a lesser included offense. In F.N. v. State, 745 So.2d 1149, 1151 (Fla. 4th DCA 1999), we assumed that Rule 3.510 applied to non-jury trials when we wrote that Florida Rule of Juvenile Procedure 8.110(1) gives “the trial judge the same options for finding a defendant guilty of a lesser included offense as does Rule 3.510.” Rule 3.510 thus allows a judge to find a defendant guilty of an attempt to commit an offense and of lesser included offenses.

We have found no authority for the proposition that in a non-jury trial a judge may find a defendant guilty of a lesser included offense only when the parties argue to the court that guilt on a lesser charge is a potential outcome. Unlike a jury, a judge is presumed to know of all lesser included offenses.

The judgment and sentence for the conviction of section 322.341 are reversed. The case is remanded for a new trial on any offense that falls under rule 3.510(b).

POLEN and WARNER, JJ., concur.

      . Section 322.341 provides:
      Any person whose driver's license or driving privilege has been permanently revoked ... and who drives a motor vehicle upon the highways of this state is guilty of a felony of the third degree....

      . Sorrell was convicted of other crimes at trial which are not at issue on this appeal.

      .Section 316.193(2)(b)l., Florida Statutes (2001) provides that:
      Any person who is convicted of a third violation of this section for an offense that occurs within 10 years after a prior conviction for a violation of this section commits a felony of the third degree....

      . We note that the proper remedy for a person who feels that his or her driver’s license was improperly revoked is to have the record corrected, "not to ignore the revocation and continue to drive.” Arthur v. State, 818 So.2d 589, 591 (Fla. 5th DCA 2002).

      . Driving without a valid driver’s license contrary to section 322.03(1), Florida Statutes (2001) is a necessarily lesser included offense of section 322.341. We arrive at this conclusion by applying Hagood v. State, 824 So.2d 252 (Fla. 4th DCA 2002). In that case, we held that driving without a valid driver’s license contrary to section 322.03(1) was a necessarily lesser included offense of driving with a revoked license under section 322.34(5), Florida Statutes (2000). As noted above, section 322.34(5) is similar to section 322.341.


author: KLEIN, J.

text:
    TENET HEALTHSYSTEM HOSPITALS, INC., d/b/a Delray Medical Center, Petitioners, v. Gisela TAITEL and Michael Taitel, her husband, Respondents.
    No. 4D03-1790.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Louise H. McMurray and James C. Sawran of McIntosh, Sawran, Peltz, Carta-ya & Petruccelli, P.A., Miami, for petitioners.
    Sally Alyce Gross of Needle, Gallagher & Ellenberg, P.A., Miami, for respondents.
   KLEIN, J.

Petitioner hospital is a defendant in a medical malpractice case seeking certiorari review of an order Compelling production of a blank hospital form used for testing the competency of nurses. We grant the petition because the test is protected by the statutory peer review privilege.

The claim of malpractice includes negligence in administering sedation and analgesia, and the trial court ordered production of the hospital’s forms used for testing and evaluating the competency of nurses in regard to sedation and analgesia. These forms were created by a hospital committee for the purpose of quality assurance and peer review. The hospital objected on the ground that these forms are privileged under section 766.101(5), Florida Statutes (2002). Cruger v. Love, 599 So.2d 111 (Fla.1992) (documents created or considered by hospital peer review and credentialing committees are privileged).

Plaintiffs do not dispute the fact that if these test forms had been filled out they would be privileged, but argue that because they are blank they contain no peer review information. Plaintiffs seek these forms in order to see what the hospital deemed important in testing the competency of nurses and to have experts review the hospital’s testing procedures. Whether the blank forms constitute “the investigations, proceedings, and records” of a medical review committee under section 766.101(5), is a question of first impression.

Florida courts have construed the statutory privilege broadly in order to protect the integrity of the peer review process. Bayfront Med. Ctr., Inc. v. Agency for Healthcare Admin., 741 So.2d 1226 (Fla. 2d DCA 1999) and cases cited. This is apparent from Cruger in which our supreme court cited Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla.1989) for the proposition that courts are obligated to carry out legislative intent and policy even where doing so exceeds the literal language of the statute.

The hospital argues that these forms are the hospital’s method for engaging in peer review, and that the process of evaluation should be just as confidential as the answers given to the questions asked. On the other hand, plaintiffs argue that these forms could provide information which is relevant to their claim. In Cruger, our supreme court stated:

The statutes do not define what constitutes records of a committee or board. Therefore, we must look to the legislative intent and policy behind the statutes to determine the extent of the privilege .... We have previously held that “[t]he discovery privilege ... was clearly designed to provide that degree of confidentiality necessary for the full, frank medical peer evaluation which the legislature sought to encourage.” Holly v. Auld, 450 So.2d [217] at 220 [(Fla.1984)]. Without the privilege, information necessary to the peer review process could not be obtained. Feldman v. Glucroft, 522 So.2d 798, 801 (Fla.1988). While we recognized in Holly that the discovery 'privilege would impinge upon the rights of litigants to obtain information helpful or even essential to their cases, we assumed that the legislature balanced that against the benefits offered by effective self-policing by the medical community, [emphasis added.]

Cruger, 599 So.2d at 113-14.

In light of the emphasized language in Cruger, we conclude that, interpreting the statute broadly, “investigations, proceedings, and records” includes the blank test forms which this hospital uses to engage in peer review and evaluation of these nurses. We accordingly grant the petition.

GUNTHER and STEVENSON, JJ., concur.


text:
    The STATE of Florida, Appellant, v. T.A., Appellee.
    No. 3D03-470.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, and Melissa Vaughan Rubin, Certified Out-of-State Practitioner, for appellant.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).


text:
    Emeterio R. VIDAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-918.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.
    Emeterio R. Vidal, for appellant.
    Charles J. Crist, Jr., Attorney General, and Donna M. Hoffman, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Wood v. State, 750 So.2d 592 (Fla.1999).


text:
    Ricardo Orlando GORDON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1970.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.
    Bennett H. Brummer, Public Defender, and Robert L. White III, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, and Melissa Vaughan Rubin, Certified Out of State Practitioner, for appel-lee.

      Before COPE and LEVY, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. Gordon v. State, 731 So.2d 672 (Fla. Bd DCA 1999).


author: POLEN, J.

text:
    David RAY, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D02-2328, 4D02-2361.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee. *
   POLEN, J.

This is a consolidated appeal by David Ray, from two cases in which the trial court revoked probation. Both of Ray’s underlying cases involved robbery with a firearm, in which he served a four-year term of incarceration and was in the process of serving his two years of probation. On May 30, 2002, Ray entered a no contest plea to a charge of possession of cocaine, reserving his right to appeal the trial court’s denial of his motion to suppress the cocaine. Following his plea, Ray was sentenced to 25.65 months of incarceration. The following day, May 31, 2002, Ray was again in court for a hearing regarding two affidavits of violation of probation previously filed by the State. The affidavits charged Ray with (1) testing positive for cannabis, and (2) failing to report weekly until he had obtained gainful employment. The same trial court presided over both hearings. At the VOP hearing, the trial court noted that the factual basis for accepting Ray’s plea to the violations of probation was based upon the earlier plea to possession of cocaine as a new violation of law. The trial court detrimentally relied upon incorrect statements from counsel and was thus under the impression that the VOP affidavits had been amended to include the new law violation. In fact, no such amended affidavits had ever been filed with the court. Due to ambiguities in the record, it is difficult to attribute blame to either party for this misrepresentation to the court. After the court accepted the pleas to the violations of probation, it imposed sentences of 131.25 months on each of the probation cases. While this appeal was pending, this Court reversed the trial court’s denial of Ray’s motion to suppress. Ray was thereby discharged on the offense of possession of cocaine.

Ray’s primary argument on appeal is that his due process rights were violated by the trial court’s acceptance of VOP pleas which included a stipulation of a new law violation that was not contained in the affidavit of violation. “It is error for a trial court to revoke probation even for a conceded violation when the probationer has been charged with a different violation altogether.” N.L. v. State, 825 So.2d 509, 510 (Fla. 1st DCA 2002); see Joseph v. State, 615 So.2d 833 (Fla. 4th DCA 1993) (holding revocation of probation may not be based upon violation not charged in affidavit); Richardson v. State, 694 So.2d 147, 147 (Fla. 1st DCA 1997) (holding revocation of defendant’s probation based on violation not alleged in charging document is a deprivation of right to due process of law). Such error by the trial court constitutes fundamental error. Dulaney v. State, 735 So.2d 505 (Fla. 1st DCA 1999) (where there has been revocation of probation for conduct not charged, the state has conceded that the error is fundamental); Smith v. State, 738 So.2d 433, 435 (Fla. 1st DCA 1999) (holding revocation of probation on grounds never alleged in writing violates due process and is fundamental error).

This case is dissimilar from the situation where an affidavit alleges a particular offense, but the probationer is actually convicted of a lesser included offense. See Thomas v. State, 634 So.2d 276 (Fla. 4th DCA 1994) (holding that an affidavit of violation alleging that probationer resisted arrest with violence, when he was actually convicted of resisting arrest without violence, did not preclude a finding that he was guilty of violating his probation). Ray’s revocation was based on a charge altogether different from that which the trial court relied upon as a factual basis for the revocation. Moreover, we find the invited-error doctrine to be inapplicable. See Norton v. State, 709 So.2d 87, 94 (Fla.1997) (holding an unsolicited comment is not “invited” where it is unresponsive to the question asked, but in an unsuccessful attempt to make a point on cross-examination, an answer in response to a question defense counsel asked “invited” the witnesses’ response); Terry v. State, 668 So.2d 954, 962 (Fla.1996) (holding as an example of invited error, “an appellant may not complain of action taken by the trial court on his own motion, such as a motion for transfer of the case from equity to law in the trial court, or of evidence that he himself has introduced”). Ray made no motion for the court to consider, nor did he invite the error in any other manner. Ray simply stipulated to a plea that he entered the previous day before the same presiding judge.

We next consider the issue of prejudice. The State invites our attention to Colson v. State, 717 So.2d 554 (Fla. 4th DCA 1998), where this Court affirmed a defendant’s conviction in spite of the fact that the defendant had been prosecuted using an unsigned information. This Court reasoned that Colson had not been prejudiced and stated that a “defendant may not thwart the ends of justice by sitting on a technical defect which has occasioned him no prejudice, holding it in reserve as a trap to spring on the State in the event the jury renders an adverse verdict.” Id. at 556 (citing Asmer v. State, 416 So.2d 485, 487 (Fla. 4th DCA 1982)). At bar, there was no technical defect with the affidavit of violation of probation. Rather, the complained of error occurred by the trial court’s detrimental reliance on charges which were wholly absent from the affidavit. As such, Colson is distinguishable. It cannot be said that Ray suffered no prejudice. Had the trial court not been misled, it is uncertain whether Ray’s probation would have been revoked. Moreover, with the benefit of hindsight, Ray clearly suffered prejudice in light of this Court’s reversal of the trial court’s denial of his motion to suppress.

Consequently, we hereby reverse the trial court’s revocation of probation. The State may again proceed on the original affidavit of violation, or may seek to amend the affidavit if such is appropriate.

WARNER and STEVENSON, JJ., concur.


text:
    J.P., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2537.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.

      Carey Haughwout, Public Defender, and Eunice T. Baros, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marni A. Bryson, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

A petition for delinquency was filed against J.P. charging him with unlawful use of a false name and resisting a police officer without violence. At the rest of the State’s case, defense moved for a judgment of acquittal on both counts, both of which were denied. J.P. was adjudicated delinquent as charged and later committed to a Level 6 moderate-risk facility. This appeal challenges the denial of J.P.’s motions for a judgment of acquittal on both counts. For the reasons explained below, we reverse.

Officer Jonathan Kersey testified that while patrolling Pompano Beach on the early morning of Dec. 29, 2001, he received a backup call to respond to the 7-11 on Dixie Highway. He arrived around 2:00 a.m. and met with Sergeant Oprea who had two black males outside a dark-colored car in the 7-11 parking lot. Kersey began to recount what Oprea had told him, but the defense lodged an objection which was sustained. Kersey then stated that after speaking with Oprea he asked the two individuals for identification. Neither of the individuals had identification; J.P. responded his name was “David Moinene.” Kersey then issued a traffic citation made out to “David Moinene.” Kersey then told the individuals not to drive the motor vehicle out of the parking lot until one of them had a driver’s license in his possession, or their parents came.

Kersey then left the scene. About twenty minutes later he was sitting at a red light adjacent to the 7-11 when he saw the vehicle back out of its parking space without either its headlights or taillights on. Kersey caught up with the car to see if an adult was driving; he couldn’t see so he activated his lights to initiate a traffic stop. The car then accelerated and sped away. It eventually blew a rear tire and pulled in front of a house. Kersey then saw the passenger side door fly open and J.P. bailed out of the car and ran away. The driver [co-defendant] locked the car door.

In response to defense questioning, Ker-sey stated that in his opinion, he was not detaining the individuals at the 7-11, but rather it was a citizen contact in that they were free to leave. Sgt. Oprea had initially detained them, for the purpose of finding out whether or not they were trespassing. Kersey did not know what Oprea had seen that had raised his suspicion. Sgt. Oprea did not testify.

J.P. contends the trial court erred in denying his motion for judgment of acquittal on count I, the giving of a fictitious name pursuant to section 901.36(1), Florida Statutes (2001). We agree. A motion for judgment of acquittal pertains to the legal sufficiency of the state’s evidence. If the trial evidence taken in a light most favorable to the state does not support a conviction, the motion must be granted. State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998) (citations omitted).

It is undisputed that J.P. and another individual were being detained by Sgt. Oprea, at 2 a.m. outside a 7-11, at the time Kersey arrived. Sgt. Oprea relayed some information to Kersey, and Kersey proceeded to ask J.P. for identification. A reasonable juvenile in J.P.’s position would have believed he was not free to leave, and felt compelled to respond to Officer Kersey’s request. See D.G. v. State, 714 So.2d 644 (Fla. 4th DCA 1998)(finding encounter was not consensual where juvenile was ordered to approach officer, and that officer did not (merely) approach juvenile or ask whether he minded if the officer asked him some questions).

In order to stop and detain a person for investigation, an officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Whether an officer has a “founded suspicion” for a stop depends on the totality of the circumstances, interpreted in light of the officer’s knowledge and experience at the time of the stop. A mere “hunch” that criminal activity may be occurring is not sufficient. See Ippolito v. State, 789 So.2d 423, 425 (Fla. 4th DCA 2001).

The State is attempting to rely on the “fellow officer rule” as justification for the legality of JJP.’s detention. See State v. Maynard, 783 So.2d 226 (Fla.2001) (Florida courts apply the “fellow officer rule,” which operates to impute the knowledge of one officer in the chain of investigation to another). The oft-cited case of Berry v. State, 493 So.2d 1098 (Fla. 4th DCA 1986), is illustrative of the application of this rule.

In Berry, Officer Bryant observed two individuals approach a car outside a fast-food restaurant in a suspicious manner; based on his observations and experience, Bryant believed they had attempted to sell narcotics to the couple in the car. He then radioed a request that an individual, later identified as appellant, be stopped. Based on the radio information, another officer, Officer Temple, stopped appellant and patted him down. When he radioed Officer Bryant to inform him he had stopped appellant, Bryant informed him to place appellant under arrest, which he then did. This court held that Officer Bryant had a reasonable founded suspicion to stop and temporarily detain appellant based on his observations and experience. Therefore, under the “fellow officer rule,” when Officer Temple received radio information to stop appellant, he had sufficient grounds to do so. Id. at 1100.

The State urges this court to impute Sgt. Oprea’s observations to Officer Ker-sey. More specifically, that reasonable suspicion should be imputed to Officer Kersey because Sgt. Oprea had reasonable suspicion. However, there is no record evidence of Oprea’s observations. There is no evidence of whether or not the initiating officer had a well-founded “reasonable suspicion” to detain J.P. In other words, there is nothing on the record to impute to Officer Kersey.

Since there are no observations of Sgt. Oprea, on the record, all that is left are Kersey’s observations. Still, the State contends Officer Kersey had, based on the totality of the circumstances, a “reasonable suspicion” that J.P. had committed, was committing, or was about to commit the crime of trespassing, when he asked him for identification. We disagree.

There is no record evidence that Kersey was aware that J.P. had been asked to leave the premises. Mere presence in the parking lot of an open quasi-public business is insufficient to constitute the crime of trespass. See Smith v. State, 778 So.2d 329, 331 (Fla. 2d DCA 2000) (holding that when an invitation has been extended to enter an open business, actual communication is necessary to put a person on notice that he is no longer welcome on the property and may be arrested for trespassing; otherwise, where a store is open for business, but its parking lot is posted against trespassing, everyone who enters the lot on his or her way to the store risks arrest for trespass).

As such, Officer Kersey lacked the authority to lawfully detain J.P., and request identification. Lawful detention is a condition precedent to commission of the crime of giving a fictitious name under section 901.36. See Belsky v. State, 831 So.2d 803, 804-5 (Fla. 4th DCA 2002). Since the State failed to establish every element of the crime of giving a fictitious name the conviction pursuant to section 901.36 is reversed.

J.P. also contends the trial court erred in denying his motion for judgment of acquittal on count II, resisting without violence, a violation of section 843.02, Florida Statutes (2001). Again, we agree.

The elements of resisting an officer without violence require that (1) the officer be engaged in the lawful execution of a legal duty and (2) the defendant’s action constitute obstruction or resistance of that lawful duty. H.H. v. State, 775 So.2d 397, 398 (Fla. 4th DCA 2000). As a general rule, flight, standing alone, does not constitute obstructing an officer nor does it give rise to a well-founded suspicion of criminal activity. Mosley v. State, 739 So.2d 672, 675 (Fla. 4th DCA 1999). Rather, an individual may be guilty of unlawfully obstructing an officer if he flees while knowing the officer’s intent to detain him and the officer is justified in making a stop pursuant to the Stop and Frisk statute. See H.H., 775 So.2d at 398. On similar facts, two of our sister courts have held flight by the passenger of a vehicle did not constitute the crime of resisting without violence pursuant to section 843.02. See D.M. v. State, 681 So.2d 797 (Fla. 2d DCA 1996); S.G.K. v. State, 657 So.2d 1246 (Fla. 1st DCA 1995).

The mere flight of J.P., a passenger in a stopped vehicle who was not suspected of any personal criminal behavior, is insufficient to sustain a conviction for resisting without violence pursuant to section 843.02. Therefore, J.P.’s conviction for resisting without violence is also reversed.

REVERSED.

WARNER, POLEN and GROSS, JJ., concur.

      . Though referred to as a judgment of acquittal, under the Rules of Juvenile Procedure, the proper title of the motion should have been a Motion for Judgment of Dismissal. See Fla. R. Juv. P. 8.105(k). Notwithstanding, this court uses the same standard on review as for a judgment of acquittal. See W.E.P. Jr. v. State, 790 So.2d 1166 (Fla. 4th DCA 2001).


text:
    B.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3083.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Because we hold that appellant and his mother executed a general waiver of speedy trial, we affirm the disposition of this case and reject appellant’s claim that the speedy trial time had expired.

B.W. was taken into custody on July 26, 2001 for battery on a school employee. So that B.W. could participate in a diversion program, he and his mother signed a document entitled “WAIVER OF SPEEDY TRIAL” on September 7, 2001. The document was provided by the Teen Court program in Broward County.

The waiver document contained three paragraphs on one page. It said that appellant had the right to a trial within ninety (90) days from the date of [his] arrest.” The form stated that in return for being “considered for participation in [a diversion] program, I HEREBY WAIVE MY RIGHT TO A SPEEDY TRIAL within ninety (90) days.” The form indicated: “I UNDERSTAND THAT IF I DO NOT SUCCESSFULLY COMPLETE THE APPLICABLE PROGRAM TO WHICH I AM ASSIGNED, THE PENDING CHARGES MAY BE FILED AGAINST ME AND I MAY BE BROUGHT TO TRIAL.”

B.W. decided on September 17, 2001 not to participate in the diversion program, so the state filed a petition for delinquency. After his July 2, 2002 arraignment, B.W. filed a motion to dismiss the charges, claiming that the speedy trial period had expired. He argued that the waiver of speedy trial should be considered only for the ten-day period from the time he executed the waiver until the day he decided not to participate in the diversion program.

The trial court denied the motion to dismiss, and after a non-jury trial found B.W. guilty of battery. The court withheld adjudication of delinquency and gave B.W. a stern judicial warning.

The Florida Rules of Juvenile Procedure contemplate that a juvenile may execute a waiver of speedy trial. As it applied to this case, rule 8.090(a)(1) required B.W. to be brought to an adjudicatory hearing within ninety days of the date he was taken into custody. Rule 8.090(f)(1) provides that the speedy trial' time may be extended “[u]pon stipulation ... signed by the child....” In circumstances similar to this case, rule 8.075(b), which applies after the filing of a petition, contemplates that a plan for a diversion program be signed by the child, the parents (unless excused by the court), and the child’s counsel, when represented. Rule 8.075(b)(2) requires a diversion plan to contain a stipulation that the speedy trial rule is waived.”

The WAIVER OF SPEEDY TRIAL document signed by B.W. and his mother was a stipulation within the meaning of rule 8.090(f)(1). It effected a general waiver of B.W.’s speedy trial rights. B.W. did not seek to awaken a speedy trial right by filing a demand under rule 8.090(g). The trial court correctly denied the motion to. dismiss.

This case is distinguishable from S.D. v. State, 409 So.2d 1118 (Fla. 2d DCA 1982). In that case, the juvenile executed not a general, but only a limited, waiver of speedy trial. The second district reached this conclusion by focusing on the form signed by the juvenile, which declared that speedy trial rights were “suspended” and stated: “I agree to give up the right to speedy trial ... for the period that I am officially enrolled in the program.” Id. at 1119. The waiver in this case contained no such language limiting the scope of the waiver.

GUNTHER and KLEIN, JJ., concur.


author: PER CURIAM. GROSS, J.

text:
    Michael D. BROWN, Esquire, Appellant, v. The SCHOOL BOARD OF PALM BEACH COUNTY, and D’s and D’s Transport & Equipment, Inc., a Florida corporation, Appellees.
    No. 4D02-3937.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.

      Michael D. Brown and Byron R. Corn-well of Brown & Associates, P.A., Riviera Beach, for appellant.
    Donna M. Greenspan of Edwards & An-gelí, LLP, West Palm Beach, for appellee The School Board of Palm Beach County.
   PER CURIAM.

This is an appeal from a trial court’s order sanctioning an attorney for fees and costs incurred when he failed to attend a deposition scheduled by the School Board of Palm Beach County. We reverse and remand.

Michael D. Brown, an attorney, represented D’s and D’s Transport & Equipment, Inc. in an action for trespass and breach of contract filed by the School Board. A final judgment in favor of the School Board was entered. Brown filed a Notice of Appeal on behalf of D’s and D’s. The trial court then entered a second Final Judgment awarding attorney’s fees in favor of the School Board and against D’s and D’s. Brown filed a second Notice of Appeal on behalf of D’s and D’s, appealing the attorney’s fee award. On February 11, 2002, the School Board served Brown with a Notice of Taking Deposition in Aid of Execution, seeking to depose a corporate representative of D’s and D’s. The deposition was set to take place on March 8, 2002. On March 5, Brown wrote the School Board letting them know that he would not be able to attend the deposition on March 8. Brett Horowitz, counsel for the School Board, responded to Brown in a letter, stating that he would consider rescheduling the deposition. Horowitz then requested that Brown respond that afternoon with possible dates for the deposition between March 6 and March 18. Horowitz stated that if Brown was unable to suggest a possible date before March 18, he expected Brown, or another attorney from his office, to be available on March 8. Horowitz also stated that in the alternative, Brown could obtain a protective order from the trial court. Brown did not respond with alternative dates or seek a protective order. Neither Brown nor D’s and D’s representative appeared for the deposition on March 8.

On March 13, 2002, the School Board filed a Motion for Sanctions and Order Compelling Discovery based on Brown’s failure to attend the deposition on March 8. On March 15, Brown filed a motion to withdraw as counsel for D’s and D’s with this Court, which we granted. On March 27, the trial court issued Brown an Order to Show Cause pursuant to the School Board’s Motion for Sanctions and Order Compelling Discovery. The trial court set this matter for an evidentiary hearing on April 22, 2002.

For the most part, the hearing consisted of the arguments and the unsworn testimony of Horowitz and Brown as to the circumstances surrounding the March 8 deposition. Neither attorney objected to the unsworn testimony of the other. The trial court did hear the sworn testimony of one witness and was also presented with several exhibits by the School Board. The trial court then issued an order sanctioning Brown, “individually, for attorney’s fees and costs [that] his conduct necessitated the School Board to expend in attempting discovery in aid of execution until the Fourth District Court of Appeal afforded him leave to withdraw.” The trial court held another hearing on August 19, 2002 in which it considered the amount of attorney’s fees to award. After the hearing, the trial court entered its Final Order of Sanctions Against Michael D. Brown stating in part that:

Brown’s intentional failure to: (1) appear at the deposition; (2) respond to requests to reschedule the deposition; and (3) seek a protective order from the court was not justified and was evidence of bad faith and entitled Plaintiff to an award of sanctions.

In its Final Order of Sanctions, the trial court finds two grounds for imposing sanctions on Brown. The first ground is the court’s “ ‘inherent authority to assess attorney’s fees against an attorney litigating in bad faith.’” Patsy v. Patsy, 666 So.2d 1045, 1047 (Fla. 4th DCA 1996). The court also correctly notes that under Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002), “ ‘the trial court’s exercise of the inherent authority to assess attorney’s fees against an attorney must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings.’ ” The second ground the trial court cites as a basis for imposing sanctions against Brown is Rule 1.380(d) of the Florida Rules of Civil Procedure. Under this rule, the trial court states that it may “assess costs and attorney’s fees where there is a failure to appear for a properly notified deposition unless the court finds that the failure to appear is justified or the party has obtained a protective order.” Thus, under both standards the court cites for awarding sanctions to the School Board, certain facts must be established before the court may sanction a party.

The alleged facts of this case were presented by both sides at the evidentiary hearing held on April 22, 2002. This hearing, which resulted in the trial court sanctioning Brown, was dominated by the un-sworn testimony of attorneys, Brown and Horowitz. At this hearing, the attorneys did not make any stipulations as to the facts in this case.

This Court has previously stated that:

[an attorney’s] unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.

Leon Shaffer Golnick Adver., Inc. v. Cedar, 428 So.2d 1015, 1017 (Fla. 4th DCA 1982). Contra Bartholomew v. Bartholomew, 611 So.2d 85 (Fla. 2d DCA 1992). Thus, in this case, the trial court improperly relied on the unsworn statements of Brown and Horowitz in making its decision. Accordingly, we reverse the trial court’s decision and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

GUNTHER and KLEIN, JJ., concur.

GROSS, J., specially concurs with opinion.

GROSS, J.

concurring specially.

I concur in the majority opinion, because the rule of Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982) is firmly entrenched; in the absence of a stipulation, unsworn statements by the attorneys cannot be the basis for factual findings by the trial court. Stare decisis compels reversal.

It seems to me that the law should require an objection to preserve the issue for appellate review. At brief hearings on attorney’s fees or sanctions like the one in this case, it is not uncommon for each attorney to present one side of the case without any objection or request for cross-examination from the other. If I were writing on a blank slate, I would hold that such silence waived the objection to the court relying on unsworn testimony. To do otherwise is to allow an attorney to blindside an opponent by springing a “gotcha” argument on appeal. A timely objection would allow the deficiency in proof to be cured without requiring the time and expense of an appeal and a second hearing.

My reading of the law in this district is that no timely objection is required to preserve the Leon Shaffer objection on appeal. In Leon Shaffer, it does not appear that there was any objection to the attorneys’ unsworn testimony in the trial court; “both attorneys made unsworn representations about the non-appearance of appellant’s attorney” at a hearing. 428 So.2d at 1016.

Similarly, in Ladoff v. Ladoff, 496 So.2d 989 (Fla. 4th DCA 1986), we did not require an objection in the trial court to reverse based on the Leon Shaffer rule. We treated the issue as one of a failure of proof.


text:
    Charles MacDONALD, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Caren MacDonald, Appellees.
    No. 4D02-4709.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.

      Gordon C. Brydger of Gordon C. Brydger, P.A., Fort Lauderdale, for appellant.
    Richard G. Bartmon of Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for appellee Caren MacDonald.
   GROSS, J.

Charles MacDonald timely appeals a provision in an order on shelter review prohibiting any contact between his paramour and his minor son. We affirm because we find that MacDonald failed to preserve this issue for appellate review.

A discussion between counsel, MacDonald, and the court at the shelter review hearing demonstrates that this issue has not been preserved:

Department: The next issue just given the fact that you’ve ruled that the child may return to the dad and to Maryland immediately, that the dad to be directed that no contact whatsoever, direct or indirect, obviously, with [the paramour].
Court: That motion is granted without argument or request. The recommendation is granted without argument.
Defense Counsel: That’s fíne.
Court: And when I say no contact, and I’m going to enter a written order on that, that’s no contact directly, indirectly, no phone calls, no cards, nothing.
Father: There hasn’t been, your Hon- or.
Court: That’s the order of the court, What’s the next issue?

(Emphasis added). Both the father’s trial counsel, and the father, spoke up and gave no indication that they objected to the trial court’s no contact order.

It is well-settled that, absent a fundamental error, a party must object and obtain a ruling from the trial court in order to preserve an issue for appellate review. See Carratelli v. State, 832 So.2d 850, 856 (Fla. 4th DCA 2002) (and cases cited therein); Lacey v. State, 831 So.2d 1267, 1268 (Fla. 4th DCA 2002)(“[I]n order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)); Ramos v. State, 798 So.2d 4, 5 (Fla. 4th DCA 2001) (en banc) (party alleging error must make contemporaneous objection with sufficient specificity “to apprise the trial court of the putative error”) (quoting Williams v. State, 414 So.2d 509, 511 (Fla.1982)).

AFFIRMED.

GUNTHER and KLEIN, JJ., concur.


text:
    Michelle MARINACCI, Appellant, v. 219 SOUTH ATLANTIC BOULEVARD, d/b/a Club Atlantis and Atlantis Night Club, Appellees.
    No. 4D02-4620.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Sina Negahbani, Miami, for appellant.
    Steven H. Osber and Michael A. Pander, Rothstein, Rosenfelt, Dolin & Pancier, P.A., Fort Lauderdale, for appellee.
   KLEIN, J.

Appellant plaintiff sued defendant, a night club, for negligently advising her to park at a nearby city-owned parking lot, late at night, alleging that defendant knew or should have known it would be dangerous. We reverse an order dismissing the complaint for failure to state a cause of action.

The complaint alleges that the plaintiff arrived at the club about 10:00 P.M. and, because the club parking lot was full, a bouncer advised her that the municipal parking lot down the street was safe. When plaintiff returned to the lot about 3:00 A.M. she was assaulted and injured. The complaint alleges that the club knew or should have known that similar criminal incidents at the city parking lot had occurred in the past and that the club was therefore negligent in advising its patrons to park there.

In Holiday Inns, Inc. v. Shelburne, 576 So.2d 322 (Fla. 4th DCA 1991), a motel with a bar advised its patrons, when its own parking lot was Ml, to park on adjacent property, which it did not own. A patron who did so was shot, and we held that the fact that the injury occurred on non-owned property did not insulate the Holiday Inn from liability, where the evidence showed a history of violent incidents and failure to provide adequate security. The trial court concluded that Shelburne was not controlling because the non-owned property here was a parking lot operated by the city.

The fact that this parking lot was operated by the city does not, in and of itself, distinguish this case from Shelburne. Although the city could also be responsible, that would not absolve the night club from liability for negligently advising its patrons to park there, when it knew or should have known of the danger. See also Nova Southeastern Univ., Inc. v. Gross, 758 So.2d 86 (Fla.2000) (university could be liable for assigning student to do an internship in an off-campus location having a history of criminal incidents). Reversed.

POLEN and STEVENSON, JJ., concur.


text:
    Fred A. BENTLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-981.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.
    Fred A. Bentley, in proper person.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson (FtLauderdale), Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   PER CURIAM.

We reverse the order denying defendant’s post-conviction relief motion as the record fails to show defendant affirmatively waived credit for time served in boot camp. Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA 2000). This cause is remanded with directions to enter a corrected sentencing order awarding the appropriate credit forthwith.

Reversed and remanded.


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    Joseph F. GIALLO, II, and Mary B. Giallo, Appellants, v. NEW PIPER AIRCRAFT, INC., Signature Combs Aircraft Sales, Inc., Goodrich Avionics Systems, Inc., a/k/a B.F. Goodrich Avionics Systems, Inc., Appellees.
    No. 4D03-4.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.

      Arthur M. Freyre of Moulis & Associates, P.A., Ft. Lauderdale, for appellants.
    John M. Murray, Christopher S. Morin and Jeffrey J. Minneti of Murray, Marin & Herman, P.A., Tampa, and Carolyn A. Pickard of Murray, Marin & Herman, P.A., Miami, for appellee Signature Combs Aircraft Sales, Inc.
   KLEIN, J.

The Giallos purchased a Piper Saratoga from Signature Combs, a Piper aircraft dealer, and prior to taking delivery, had the dealer install a BF Goodrich Avionics System. After taking delivery, plaintiffs discovered that the avionics system could not be made to work properly and brought this lawsuit against the dealer, the manufacturer of the aircraft, and the manufacturer of the avionics system. The trial court dismissed the complaint alleging fraud and revocation of acceptance against the dealer, for failure to state a cause of action, leaving the claims against the remaining defendants pending. We affirm the dismissal.

The contract for sale between the Gial-los and the dealer provided the aircraft was sold “as is” by the dealer, incorporated a full factory warranty from the manufacturer, New Piper, and disclaimed any oral representations or warranties as to the dealer. The warranty provided by the manufacturer excluded the avionics system, which is supposed to notify a pilot of nearby aircraft. The avionics system was warranted by its own manufacturer.

The sales contract for the aircraft provided in part:

This Agreement constitutes the entire agreement of the parties hereto with respect to the purchase and sale of the Aircraft and supercedes all prior representations and understandings whether written or oral. No modification, termination or waiver of any provision hereof shall be valid unless in writing signed by the parties.
11. Warranty disclaimer. EXCEPT AS EXPRESSLY STATED TO THE CONTRARY HEREIN, THE AIRCRAFT IS SOLD “AS IS” AND SELLER HEREBY DISCLAIMS AND MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND WITH RESPECT TO THE AIRCRAFT INCLUDING, WITHOUT LIMITATION, ITS CONDITION, DESIGN, QUALITY, CAPACITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, COMPLIANCE WITH THE REQUIREMENTS OF ANY LAW, ORDER, RULE, REGULATION, SPECIFICATION, PATENT OR CONTRACT.
SELLER SHALL NOT BE LIABLE FOR ANY DEFECT, EITHER LATENT OR PATENT, IN THE AIRCRAFT AND SHALL HAVE NO OBLIGATION OR LIABILITY IN NEGLIGENCE, STRICT LIABILITY OR OTHER TORT.

Notwithstanding these contractual provisions, the Giallos claim that the dealer, Signature Combs, committed fraud because its president orally represented that the B.F. Goodrich Avionics System would “enhance the safety of the aircraft.” We disagree. Assuming for purposes of argument that the oral statement is fraudulent, a party cannot recover for fraudulent oral representations which are covered in or contradicted by a later written agreement. Hillcrest Pac. Corp. v. Yamamura, 727 So.2d 1058 (Fla. 4th DCA 1999).

The Giallos also alleged a claim for revocation of acceptance under the Uniform Commercial Code, section 672.608, Florida Statutes (2002), which provides:

Revocation of acceptance in whole or in part.—
(1) The buyer may revoke her or his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to her or him if she or he has accepted it: a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured ...

Signature Combs argues that the buyers were not entitled to revocation because the sales agreement provides that the aircraft was sold “as is” and that all warranties were disclaimed by Signature Combs. It relies on Frank Griffin Volkswagen, Inc. v. Smith, 610 So.2d 597 (Fla. 1st DCA 1992), in which Smith bought a new VW from a dealer, acknowledged that the vehicle was sold “as is,” and that the only warranties were that of the manufacturer. After suffering numerous mechanical problems, Smith sued both the manufacturer and dealer for revocation of acceptance and the First District held that revocation of the contract between the dealer and Smith was not available because there was no breach of a contractual obligation which rendered the automobile nonconforming. We agree with Frank Griffin and find it indistinguishable from the present case in any manner which would benefit the Gial-los.

Affirmed.

GUNTHER and GROSS, JJ., concur.

      . Signature Combs has not argued that the statement is, at most, puffing, rather than fraud. Wasser v. Sasoni, 652 So.2d 411, 412 (Fla. 3d DCA 1995) (seller's representation that an apartment building was " 'a very good building’ requiring ‘normal type of maintenance’ ” was merely puffing and not a fraudulent misrepresentation); Mejia v. Jurich, 781 So.2d 1175 (Fla. 3d DCA 2001) (statement by sales person that homes in development would never be sold for a lower price because developer was committed to upholding property values in the project was merely puffing). It is therefore unnecessary for us to address that question.


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    FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner, v. In the Interest of I.A., Respondent.
    No. 3D03-1460.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.
    Calianne P. Lantz, for petitioner.
    Nancy Schleifer, Miami; Mercedes Sco-petta, for The Guardian Ad Litem Program.
    Before COPE, LEVY and SHEVIN, JJ.
   PER CURIAM.

We grant the Florida Department of Children and Family Services’s petition for writ of prohibition on the authority of Florida Dep’t of Children & Family Servs. v. C.K., 851 So.2d 206 (Fla. 3d DCA 2003). Petition granted.

      . We are sure that it will be unnecessary to issue the formal writ.


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    Leo Wallace COCHRANE, et al., Appellants, v. Ezugo Dan NWANDU, Appellee.
    Nos. 3D02-3428, 3D03-219, 3D03-595.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.

      William L. Richey, Miami; Ferrell, Schultz, Carter, Zumpano & Fertel and Carlos A. Nunez-Vivas, for Appellants.
    Page, Mrachek, Fitzgerald & Rose and Roy E. Fitzgerald and Julie L. Sellers (West Palm Beach), for Appellee.
    Before COPE and LEVY, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Appellants, the Plaintiffs below, appeal from: a non-final order modifying a temporary injunction (Case No. 02-3428); a non-final order denying their Motion for Recognition and Enforcement of English Injunction (Case No. 03-219); and a non-final order dissolving the temporary injunction based on the dismissal of the case (Case No. 03-595). We reverse.

With regard to Case No. 03-219, a foreign decree is entitled to comity where (1) the parties have been given notice and the opportunity to be heard, (2) where the foreign court had original jurisdiction, and (3) where the foreign decree does not offend the public policy of the State of Florida. See Intrinsic Values Corp. v. Superintendencia de Administracion Tributaria, 806 So.2d 616, 619 (Fla. 3d DCA 2002) (quoting Nahar v. Nahar, 656 So.2d 225, 229 (Fla. 3d DCA), rev. denied, 664 So.2d 249 (Fla.1995)). We conclude that the trial court erred in denying the Plaintiffs’ Motion for Recognition and Enforcement of English Injunction because it is clear from the Record before us that all of the foregoing elements for comity were satisfied. In light of this conclusion, the issues presented in Case Nos. 02-3428 and 03-595 are moot because the “English Injunction”, which should have been recognized by the trial court, enjoined Mr. Nwandu from disposing the same assets whose disposal was enjoined in the injunction that is the subject of the appeals in Case Nos. 02-3428 and 03-595.

Accordingly, this case is reversed and remanded to the trial court for proceedings consistent with this Opinion.

Reversed.


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    George N. ZAPETIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2732.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for Appellant.

      Charles J. Christ, Jr., Attorney General, and Barbara A. Zappi (Ft. Lauderdale), Assistant Attorney General, for Appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   PER CURIAM.

We reverse the order denying defendant’s motion to correct illegal sentence. The record demonstrates that the trial court had no discretion to impose a habitual offender sentence when such a designation contravenes the terms of the plea agreement. Accordingly, we reverse and remand with instructions that defendant be sentenced to 25 years without the habitual offender designation.

Reversed and remanded.


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    Gloria Ann GODFREY-AURAND, individually and as trustee of Ewart Clyde Godfrey Trust created under Article Fourth of the Last Will and Testament of Clara Matilda Godfrey, etc., Appellant, v. Ewart Clyde GODFREY, Appellee.
    No. 3D03-1648.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.
    Ginsberg & Schwartz; Golden & Cowan, Miami, and William H. Glascoe, for appellant.
    Holland & Knight and Daniel 0. Mena and Christopher W. Boyett, Miami, for appellee.
    Before GODERICH and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Aurand, the trustee of a trust that holds income producing properties, appeals a temporary injunction appointing Iris June Slippy, the nominated successor, as interim trustee until further order of court, and enjoining Aurand from managing, interfering or having any other business dealings in connection with the income producing properties that are the assets of the trust.

Clara Matilda Godfrey, the settlor of the trust, was the natural mother of Aurand. Aurand’s father, Ewart Clyde Godfrey, the plaintiff below, is the income beneficiary of the trust.

The Motion for Removal chronicles that Aurand failed to take over the active management and supervision (characterized by the probate judge as abandonment) of the income producing properties, that those matters were always handled by Godfrey directly, and that, after this litigation commenced, she, through attorneys, was threatening the tenants by giving them notice of eviction.

The claim here is that Aurand was denied procedural due process before and during her removal. She claims that she was given only 3 days notice of the injunction hearing set by the probate judge and that during that interim there were side steps and deceit in preventing her from taking Godfrey’s deposition. However, when the motion for the temporary injunction was called up, there was no motion presented for either a continuance or challenging sufficiency of the pleadings. When Aurand’s counsel objected to evidence offered by Godfrey outside that annexed to the motion in his affidavit the trial court sustained the objection and no testimony of Godfrey was admitted. The emergency motion for injunction was not filed until Aurand’s attorneys sent eviction letters to tenants of the rented property. The trial judge wisely considered the situation and realized that Aurand never assumed formal responsibility as trustee, that she was not injured by her inability to take Godfrey’s deposition and that, by entering the injunction, no substantive rights of the parties had been settled in any manner. We agree because we believe the motion and the affidavits attached would have been the basis for an ex parte injunction. We therefore find that the able probate judge acted entirely within his discretion in proceeding without Godfrey’s deposition having been taken.

Affirmed.


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    The STATE of Florida, Department of Corrections, Appellant, v. Daron MIKLE, Appellee.
    No. 3D02-2359.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.

      Susan Schwartz, Charles J. Crist, Jr., Attorney General, and Charles M. Fahl-busch, Assistant Attorney General, Tallahassee, for appellant.
    Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellee.
    Before LEVY, GODERICH, and RAMIREZ, JJ.
   PER CURIAM.

The Florida Department of Corrections (“DOC”) appeals from a trial court Order which granted the Defendant’s motion to serve his sentence in a South Florida correctional facility between West Palm Beach and Everglades. We reverse.

As a preliminary matter, the Defendant argues that the State does not have the right to appeal the Order in question because Section 924.07, Florida Statutes (2002), does not permit an appeal of this Order. We disagree. As stated by the First District in Department of Juvenile Justice v. J.R., 710 So.2d 211, 213 (Fla. 1st DCA 1998):

In fact, the Florida Department of Corrections (DOC) has been allowed to appear in district courts to challenge similar orders which attempt to direct placement of adult defendants in specific facilities. Clearly, DOC is not a party to a state prosecution. When a trial court attempts to specify placement for an adult defendant, such orders have been reviewed when DOC challenged the judge’s authority as an infringement on DOC’s executive right to determine the placement of inmates. See Singletary v. Acosta, 659 So.2d 449 (Fla. 3d DCA 1995).

DOC is not acting as the prosecuting authority in the instant case. Rather, it is seeking to vindicate a right that is unique to its role as the executive agency of the State of Florida which is responsible for the management of the prison system. Like the Department of Juvenile Justice in J.R., the DOC has standing to bring this appeal.

On the merits, we conclude that the trial court improvidently entered the Order under review for the reasons expressed by this Court in Moore v. Burns, 796 So.2d 1261, 1262 (Fla. 3d DCA 2001) (“Trial courts lack the authority to regulate the treatment and placement of a sentenced defendant in the prison system.”). Accordingly, the Order is vacated.

Reversed.