author: GREEN, J.

text:
    TERRANOVA CORPORATION, Appellant, v. 1550 BISCAYNE ASSOCIATES, CORP., Appellee.
    No. 3D02-1500.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Rehearing Denied June 18, 2003.

      Grnmer & Levin, P.A. and Keith T. Grumer (Ft.Lauderdale), for appellant.
    Clarke, Silverglate, Campbell, Williams & Montgomery and Jay A. Gayoso, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   GREEN, J.

Terranova Corporation (“Terranova”) appeals a final summary judgment interpreting the amount of commission due it pursuant to an exclusive leasing listing agreement (“listing agreement”) with 1550 Biscayne Associates Corporation (“owner”). Terranova asserts that the trial court correctly determined it was entitled to a commission, but incorrectly determined the commission rate to be 1 1/2%. Based upon our construction of the listing agreement, we conclude that Terranova was entitled to a commission rate of 3%. For that reason, we affirm the summary judgment, but reverse that portion awarding Terranova a commission rate of 11/2%.

A. The Listing Agreement

Terranova entered into the listing agreement with the owner in April, 1999 for the purpose of having Terranova obtain tenants at the owner’s building. The agreement set forth the terms under which Ter-ranova would be paid a commission by the owner for procuring tenants at the owner’s commercial building depending upon the status of the tenant and whether the listing agreement had been terminated by the parties. Specifically, the relevant provisions of the listing agreement provided in pertinent part that:

3(f) ... Owner agrees to pay Agent [Terranova] a leasing commission equal to six percent (6%) of the Gross Rental Value of any new lease ...
(g) Should any tenant who executes a lease at the Property as a result of Agent’s efforts, later expand or renew its lease after termination of this Agreement, Agent shall still be due a commission as though this Agreement remained in full force and effect except the amount of payment due shall be one-half the rate provided for herein and no liability of Owner for any expansion or rénewal after termination of this Agreement shall last longer than the earlier of the transfer of Owner’s interest in the property or twenty four months (24) after termination of this Agreement.
(i) While this Exclusive Leasing Agreement is in effect, should any tenant with a current lease for space at the Property at the commencement of this Agreement enter into a new lease for different space, Agent shall receive half compensation. If the new lease is for the same space currently occupied by the tenant, the compensation to Agent shall be one half the normal rate. Should an existing tenant extend its lease via a pre-existing option to renew, Agent shall not be entitled to any compensation. Commissions shall only be due on the net new lease value taking into account the early cancellation of any prior lease.
(k) In the event of termination of this Agreement, Owner shall remain obligated to pay Agent a full commission for any tenant(s) introduced to the Property by Agent, where the tenant(s) execute a lease with Owner within six months of the effective date of termination or longer if Agent and prospective tenant are in active negotiations. Agent agrees to submit a list of any such tenants to Owner within thirty (30) days from the effective date of termination.
6. Term of Agreement: Termination
(a) This agreement shall commence upon execution and remain in effect until canceled or terminated pursuant to the terms hereof.
(b) This Agreement may be terminated for any reason whatsoever as of the last day of any month hereof by Owner upon at least sixty (60) days prior written notice to Agent ...
(c) Agent may terminate this Agreement as of the last day of any month hereof by Agent upon at least sixty (60) days prior written notice to Owner ...

B. Lease with The Kitchen, Inc.

During the term of the listing agreement, Terranova procured The Kitchen, Inc. (“The Kitchen”) as a tenant for the owner’s building. On November 9, 1999, the owner executed a lease with The Kitchen which gave The Kitchen the right of first refusal to expand its space at the property if another tenant vacated. Ter-ranova was paid its 6% commission for The Kitchen lease pursuant to the listing agreement.

On January 6, 2000, one of the owner’s tenants notified the owner that it would not exercise its lease renewal rights for the first floor of the property. Four days later, the owner approached The Kitchen and invited it to negotiate a new lease for this additional space. The owner did not notify Terranova of any of these communications.

Approximately one week later or January 14, 2000, the owner notified Terranova of its termination of the listing agreement effective March 31, 2000, pursuant to paragraph 6(b) of the listing agreement. Approximately two weeks later, the owner and The Kitchen entered into an amendment of lease substantially expanding The Kitchen’s leasehold interest to include the first floor of the property. The owner did notify Terranova of this amendment of lease.

When Terranova found out about the amendment of lease, it demanded 6% commission on the additional gross rental value of the lease expansion under the listing agreement. The owner refused, and Ter-ranova commenced this litigation by filing a two-count complaint for breach of the listing agreement and unjust enrichment. The owner did not dispute that it owed Terranova a commission, but it did dispute the amount owed.

Terranova moved for summary judgment on its breach of contract count and the owner moved for summary judgment on both counts of the complaint. The trial court granted Terranova’s motion for summary judgment, and construed paragraphs 3(g) and (i) of the listing agreement together to conclude that Terranova was entitled to a commission of 1 1/2% of the lease expansion which the parties stipulated to be $49,595.28. The trial court also granted the owner’s motion for summary judgment on Terranova’s unjust enrichment count based upon its conclusion that a party seeking to enforce an express contract could not simultaneously disavow the existence of the express contract and seek equitable relief based on a quasi contract, citing Tobin & Tobin Ins. Agency, Inc. v. Zeskind, 315 So.2d 518, 520 (Fla. 3d DCA 1975); Santovenia v. Confederation Life Ass’n, 460 F.2d 805, 811 (5th Cir.1972).

Terranova has filed the instant appeal complaining solely about the lower court’s determination that it was entitled to only a 1 1/2% percent commission rate under the listing agreement. Terranova essentially argues that it is entitled to a 6% commission pursuant to paragraph 3(k) of the listing agreement, and that the trial court erred in reducing its commission pursuant to paragraphs 3(g) and (i) based upon the undisputed evidence of the owner’s bad faith termination of the listing agreement. We agree with Terranova that it is entitled to more than the 1 1/2% commission rate awarded by the lower court. We, however, disagree that Terranova is entitled to the full 6% rate outlined in paragraph 3(k) of the listing agreement.

Initially, we note that we are required to give effect to the clear and unambiguous language of the listing agreement, although certain provisions of the agreement were seemingly drafted with anything but a modicum of clarity. See Hurt v. Leatherby Ins. Co., 380 So.2d 432, 433 (Fla.1980) (finding that where contractual language is clear and unambiguous, courts cannot indulge in construction or interpretation of its plain meaning). See also Kraft v. Mason, 668 So.2d 679, 685 (Fla. 4th DCA 1996)(stating that “clear and unambiguous contract terms should be construed as written.”). Since the rate of Terranova’s commission apparently hinges upon whether this listing agreement had been effectively terminated prior to the owner’s amendment of its lease with The Kitchen, we will address Terranova’s arguments on appeal in reverse order.

Terranova asserts that it should be awarded its full 6% commission rate based upon the undisputed evidence that the owner’s bad faith termination of the listing agreement was an effort to defeat its commission. We disagree. The listing agreement clearly permitted either party to terminate this agreement “for any reason whatsoever.” We construe this to mean that either party was free to cancel this agreement for good cause, bad cause, or no cause. Given this expressed right of termination for any reason, we conclude that the implied covenant of good faith which would otherwise attach to a contract has no applicability to this dispute. See Flagship Nat’l Bank v. Gray Distrib. Sys., Inc., 485 So.2d 1336, 1340 (Fla. 3d DCA 1986) (finding that good faith obligation may not be relied upon to override express terms of a contract). See also Avatar Dev. v. De Pani Constr., 834 So.2d 873, 876 (Fla. 4th DCA 2002) (stating that “an implied covenant of good faith cannot be used to vary the unambiguous terms of a written contract and when the parties negotiate ‘a fully specified, unambiguous contract, this court is not at liberty to change their bargain.’ ”)(citing Indian Harbor Citrus, Inc. v. Poppell, 658 So.2d 605, 607 (Fla. 4th DCA 1995)).

Since we conclude that this listing agreement had been effectively terminated by the owner prior to the owner’s amendment of lease with The Kitchen, we return to the question of the appropriate commission for Terranova. We cannot agree with the owner that paragraphs 3(g) and (i) must be construed together for a 1 1/2% commission rate because in our view, 3(i) has no applicability whatsoever to the current dispute. Based upon the plain language of (3)(i), it applies while the listing agreement is in effect to a tenant who had a “lease for space at the property at the commencement of this agreement.” The Kitchen was not a tenant at the property at the commencement of the listing agreement, therefore, this provision is inapplicable.

Terranova urges that paragraph 3(k) is the governing provision, and at the very least, paragraph 3(g) governs as they both address its commission rate in the aftermath of the termination of the listing agreement. Although both provisions do indeed address commission rates owed to Terranova in the event of a termination of the fisting agreement, we conclude that 3(g) addresses the precise factual scenario presented in this case, and 3(k) addresses commissions owed to Terranova upon termination in more general terms. In construing this agreement, the more specific provision (i.e. 3(g)) must supersede and govern the more general provision (i.e.3(k)). See Proser v. Berger, 132 So.2d 439, 441 (Fla. 3d DCA 1961)(stating that “... specific provisions of an agreement are to be given such effect as to supersede provisions in conflict with them which have been stated in general terms.”). See also J.M. Flowers v. Miskoff, 233 So.2d 201, 205 (Fla. 4th DCA 1970) (holding that “A specific provision ... will normally be construed as eliminating the unspoken, the general, and the unclear.”). Here, pursuant to 3(g), Terranova would be entitled to receive one-half the rate provided for in the agreement which we construe to mean to be one half of 6%, or 3%.

We therefore affirm the summary judgment, but reverse that portion awarding the appellant only 1 1/2% commission, and remand with directions that it be given 3% commission.

Affirmed in part and reversed and remanded with directions.

      . For this reason, Terranova maintains that the owner violated paragraph 3(b) of the listing agreement which provides that:
      All inquiries for any leases, renewals, or agreements for the rental of the Property shall be referred to Agent, and all negotiations connected with such leasing prospects shall be conducted solely by or under Agent’s direction.

      . The owner has filed no cross-appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Enoch M. GARCIA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 3D02-2152.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Rehearing Denied June 6, 2003.
    Enoch M. Garcia, in proper person.
    John D. Maher (Tallahassee), for appel-lees.

      Before JORGENSON, GREEN, and SHEVIN, JJ.
   PER CURIAM.

Following a careful review of the record, we conclude that the Unemployment Appeals Commission correctly affirmed the decision of the appeals referee. See § 443.151, Fla. Stat. (6)(b) (2001).

Affirmed.


text:
    Cedric JEFFERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-801.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Rehearing and Certification Denied June 11, 2003.
    Cedric Jefferson, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

The defendant appeals from the unfavorable portion of the following order with which we entirely agree:

The defendant in his motion to correct illegal sentence has claimed that he is entitled to relief on two grounds. First, the defendant claims that these charges were incorrectly scored as a level seven offense when they should have been scored as an unranked second degree felony, a level four offense. He claims that because the informations filed by the State charged him with burglary of an unoccupied dwelling and did not track the exact language in the offense severity ranking chart of F.S. 921.0012 that such deviation renders the offense an uncharged second degree felony. The defendant is misinterpreting the purpose of the offense severity ranking chart which references the burglary statute but is not the burglary statute. The offense of burglary of a dwelling was a level seven offense in 1993, 1994, and 1995. The defendant’s first claim for relief is denied.
Second, the defendant claims that he was incorrectly sentenced to twelve years in F94r-39724 for the third degree offense of attempted burglary. The defendant is correct. The defendant’s sentence in F94-39724 is hereby vacated and the defendant is re-sentenced to five years with all credit for time served. Affirmed.


author: SHARP, W., J.

text:
    KVAERNER CONSTRUCTION, INC., Appellant, v. AMERICAN SAFETY CASUALTY INSURANCE COMPANY, Appellee.
    No. 5D02-1765.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.
    Rehearing Denied June 20, 2003.

      A. Anderson B. Dogali and Jane M. Wiederof Forizs & Dogali, P.L., Tampa, for Appellant.
    DeWitte Thompson of Thompson & Sla-gle, P.C., Norcross, GA, for Appellee.
   SHARP, W., J.

Kvaerner Construction, Inc. appeals a final summary judgment dismissing its claims against American Safety Casualty Insurance Company, the surety for Kvaer-ner’s subcontractor Steel Tec Construction, Inc. On appeal, Kvaerner argues there are material fact issues which preclude entry of summary judgment. We disagree and affirm.

In July 1998, Kvaerner was hired as the general contractor to build an assisted living. facility in Hernando County. A few months later, Kvaerner entered into a $1,173,000 subcontract -with Steel Tec for the structural framing and miscellaneous decking and sheathing for the project. The subcontract required Steel Tec to obtain and pay for all necessary permits and licenses for the project and to comply with all federal, state, municipal and local laws and regulations.

The subcontract also required Steel Tec to furnish Kvaerner with a performance and a labor and material bond, which it did through American. The performance bond provides that if Steel Tec performs its subcontract, the bond obligation becomes null and void.

Steel Tec started working on the project in late 1998. In February 1999, Hernando County stopped work on the project because Steel Tec was unlicensed.

Kvaerner declared Steel Tec in default for failure to have a license and other breaches of the subcontract. Kvaerner then demanded American remedy the default under the performance bond. When American declined to do so, Kvaerner filed this lawsuit against American for breach of its bond obligations.

American moved for summary judgment pursuant to section 489.128, which renders contracts by unlicensed contractors unenforceable. American argued Kvaerner hired Steel Tec knowing it was unlicensed. Therefore Kvaerner could not enforce its contract with Steel Tec and consequently cannot recover on the performance bond because American’s liability as a surety cannot be greater than that of its principal Steel Tec.

Part one of chapter 489 provides for the licensing, registration and certification of construction contractors. Section 489.128, Florida Statutes (1999) provided:

Contracts performed by unlicenced contractors unenforceable. — As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain his license in accordance with this part shall be unenforceable in law or in equity. However, in the event the contractor obtains or reinstates his license, the provisions of this section shall no longer apply.

Section 489.128 was enacted to protect the public from the activities of incompetent contractors. See § 489.101 (“The Legislature deems it necessary in the interest of the public health, safety, and welfare to regulate the construction industry”); Castro v. Sangles, 637 So.2d 989 (Fla. 3d DCA 1994). See also Poole & Kent Co. v. Gusi Erickson Const. Co., 759 So.2d 2 (Fla. 2d DCA 1999) (legislative history suggests that section 489.128 was intended to address the problems consumers and the public face due to shoddy work by unlicensed, unqualified contractors).

In Castro, the court recognized a party may recover upon an apparently illegal contract but only if he himself is not guilty of wrongdoing, that is, if he is not in pari delicto with the actual malefactor. In that case, the Castros agreed with Sangles, an unlicensed contractor, to build a duplex on their property for a low price. Castro pulled the building permit, claiming he was the owner/builder and no contractor was involved and signed an affidavit to that effect. When Sangles’ construction proved unsatisfactory, the Castros filed suit against him for breach of contract. The trial judge dismissed the lawsuit on the basis that the contract was unenforceable under section 489.128.

On appeal, the court noted Castro was clearly in pari delicto since it was he who, for his own financial gain, made a specific representation to official authorities, under oath, that the building permit was expressly sought by the owner as builder. Castro thus disavowed the existence of the “general contractor” against whom he filed suit. The court agreed that Castro’s improper securing of the building permit — which was contrary not only to his sworn affidavit and the county code but to Chapter 489 itself — precluded his recovery:

We cannot allow one to invoke the judicial process when, for his own financial benefit, he has participated in the very activity that law precludes, with the resulting danger that the law seeks to avoid.

637 So.2d at 990.

In the present case, Hernando County stopped work on the project because Steel Tec was not licensed as a steel erection contractor, pursuant to ordinances 93-20 and 98-02. Section 7 of ordinance 93-20 requires certificates of competency:

SECTION 7. CERTIFICATES OF COMPETENCY REQUIRED.
All persons or entities shall be duly licensed by all appropriate agencies and authorities of the county and the state. All said persons or entitles shall be in possession of all necessary certificates of competency, registrations, and occupational licenses, prior to engaging in the business, or acting in the capacity of a contractor. Duly licensed contractors or persons exempted by this code are authorized to obtain building permits, and receive inspections. No contractor shall allow any subcontractor to work on any job under the contractors supervision, unless such subcontractor is in possession of all necessary certificates of competency, registrations, and occupational licenses as required by any ordinances, agencies, and authorities of the county and the state, (emphasis added)

Under ordinance 98-02, “Contracting” is defined as follows:

Contracting means, except as exempted in this part, engaging in business as a contractor and includes, but is not limited to, performance of any of the acts as set forth in the definition of “contractor” and “speciality contractor,” which define types of contractors....

“Speciality contractor” is defined as a contractor whose scope of work and responsibility is limited to a particular phase of construction described in the following categories. These categories include steel erection contractor:

(15) Steel Erection Contractor means the scope of certification includes and is limited to the execution of contracts requiring the skill, knowledge, ability and experience to install, repair, maintain, and replace, steel framework, columns, sheathing, beams and fabrication of metal buildings.

Kveaerner’s subcontract required Steel Tec to furnish all labor, material and equipment to complete the following:

A. Structural steel panels for walls on all floors as required to support the floor and roof decks and in accordance with the design engineer’s ultimate criteria. These wall panels may be comprised of 14, 16 or 18 gauge studs, or any combination thereof.
B. Floor decking as may be required to receive concrete flooring materials. This deck may be of corrugated metal or of Epi-Core depending on the design engineer’s ultimate conclusions. In either event the Subcontractor agrees to furnish either product within the contract price. If corrugated metal deck is selected, Subcontractor agrees to furnish and install designed floor trusses to support the deck. In every event Subcontractor shall furnish and install metal roof trusses designed for the purposes intended to achieve the roof pitches and design as required.
C. Interior light gauge framing for all walls otherwise not included , in the structure. Light gauge framing shall be 25 gauge or as specified by the design engineer.
D. Exterior walls, whether structural or not shall be framed of 20 gauge “C” studs at minimum or larger depending on design engineers preference.
E. All stud sizes shall be governed by design Engineer’s and Architects requirements.
F. Installation of Dens-Glass Gold exterior sheathing using fasteners as required to accomplish attachment and wind load criteria as may be specified by design Engineer.
G. Installation of wood subfascia as required by original plans and specifications to allow for the installation of aluminum fascia and soffit. Attachment to metal roof truss tails shall be according to design Engineer’s preference and prevailing building code.
H. Install, at the discretion of Architect and Engineer either one layer of 5/8" “X” rated gypsum sheathing of corrugated steel as a sub-sheathing on the metal roof trusses.
I. Included in the proposal are all materials necessary to construct try walkways and porte-cochere canopy at the entryway.

This description of the work required under Steel Tec’s subcontract supports the County’s requirement for a steel erection contractor license. In any event, some license was clearly required. According to James Friedrichs, the County’s contractor certification supervisor, it could be argued Steel Tec had to have a drywall license in addition to the steel erection license. Steel Tec had neither license.

On appeal, Kvaerner claims there was no evidence it knew, prior to the work stop order, that Steel Tec was not duly licensed. According to Kvaerner, the Hernando County Building Department was uncertain as to what license was required from Steel Tec and promised to get back to them with the answer. Thus even if the contract between Kvaerner and Steel Tec is determined to be illegal because Steel Tec was not licensed, Kvaerner argues it was not guilty of any wrongdoing.

We find this claim to be conclusively refuted by testimony from Steel Tec and Kvaerner employees. Ross Moore, Kvaer-ner’s project superintendent, took other subcontracters such as the plumber and electrician to the Hernando County Building Department to get the proper paperwork. In September 1998, Moore took Steel Tec’s owner, Neal Asprea, to the building department for the same purpose:

[W]hen it was Steel Tec’s turn, Neal and I went up there to do the same thing, and he didn’t have a license. So he asked them, I asked them, what license does he need. So they gave us all of these papers, and they couldn’t determine because he was a manufacturer, plus he was an erector. So they said, well, we don’t know what category this is, basically we’ll get back to you. (emphasis added)

Moore believed Kvaerner knew Steel Tec was working without any sort of a license prior to the work stop order.

At the beginning of the project, Asprea received a contractor’s check list from Kvaerner which required the number of his license. Asprea told Kvaerner his license was “pending.” Asprea took a metal framing test in 1997; he passed the first part of the test but failed the second part on structural steel. According to Asprea, there is no category for what he does— manufacturing and erecting structural light gauge steel. He considers his license to be “pending” until “they come out with the test and I’ll take it.”

Jeffrey Williams, Kvaerner’s project manager, negotiated the subcontract with Steel Tec. Williams had a standard procedure for requesting information from subcontractors to insure they were licensed. Williams admitted he received the transmittal sheet back from Steel Tec which stated its license was “pending.” Williams explained he did nothing to follow up with Steel Tec or Hernando County to determine the status of Steel Tec’s license during the project:

A. It wouldn’t — our activity on that front wouldn’t have been after the fact, it would have been before the fact. We would have and did already go to the Hernando County Building Department and we had received from them a list of the folks who they proclaimed needed to be licensed and the tasks that Steel Tec was intended to perform were not listed on there, so we did—
Your questions were asked, did we follow up, my answer was no, and the reason is because we’d already done the research and we already had the information and we already believed that there was no requirement.
Q. And you had that information before you signed your contract with Steel Tec?
A. Correct, (emphasis added)

This testimony shows Kvaerner knew Steel Tec had no license even before work started on the project. Kvaerner’s argument that it should be absolved from any culpability because Hernando County may have been uncertain as to what license was required is without merit. The county is not privy to the details the contract requires of the parties. That is why typically it is the general contractor’s responsibility under the contract with the owner to assure that subcontractors are validly licensed before they start the work. Poole and Kent Co. v. Gusi Erickson Const. Co., 759 So.2d 2 (Fla. 2d DCA 1999).

Kvaerner also argues Steel Tec’s status as an unlicensed contractor is of no concern because Kvaerner is not suing Steel Tec to enforce the subcontract but rather is seeking to enforce American’s obligations under the bond. Kvaerner points out the purpose of a performance bond is to guarantee the completion of the contract upon default and argues American’s obligations are not extinguished by virtue of Steel Tec’s unlicensed status.

Under the common law of surety-ship, fraud or misrepresentation by the principal in inducing the surety to enter into the contract will not affect the liability of the surety unless there is knowledge or participation by the creditor. American Manufacturing Mutual Insurance Co. v. Tison Hog Market, Inc., 182 F.3d 1284 (11th Cir.1999), cert. denied, 531 U.S. 819 (2000). Here Kvaerner (the creditor) hired Steel Tec knowing it had no license and allowed Steel Tec to work on the project without a license. Under section 489.128, it seems Kvaerner could not enforce its contract with Steel Tec. As a matter of public policy, we hold Kvaerner cannot indirectly recover on that contract by enforcing the performance bond from American.

AFFIRMED.

SAWAYA and ORFINGER, JJ., concur.

      . Summary judgment is of course proper only when there are no disputes of material fact and the movant is entitled to judgment as a matter of law. We review the trial court’s entry of summary judgment de novo. Scheibe v. Bank of America, N.A., 822 So.2d 575 (Fla. 5th DCA 2002); Laboratory Corp. of America v. Professional Recovery Network, 813 So.2d 266 (Fla. 5th DCA 2002).

      . The bond provided:
      NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Subcontractor shall promptly and faithfully perform said Subcontract, then this obligation shall be null and void; otherwise it shall remain in full force and effect.

      . In 2000, the Legislature amended section 489.128 to delete the last sentence, which allowed a contractor to cure its unlicenced status. The Palms v. Magil Construction Florida, Inc., 785 So.2d 597 (Fla. 3d DCA), rev. denied, 805 So.2d 811 (Fla.2001).

      . "Equally at fault.” Black’s Law Dictionary.

      . See, e.g., American Home Assur. Co. v. Larkin General Hosp., Ltd.., 593 So.2d 195 (Fla. 1992).


author: STONE, J.

text:
    COLONNADE MEDICAL CENTER, INC., Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 4D02-1026.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.

      Richard A. Serafini, Chris M. Morrison, and Teri L. DiGiulian of Broad and Cassel, Fort Lauderdale, for appellant.
    Garnett W. Chisenhall, Assistant General Counsel, Tallahassee, for appellee.
   STONE, J.

Colonnade Medical Center, Inc. (Colonnade) appeals a final order of the Agency for Health Care Administration (AHCA) ordering it to remit $49,965.30 in Medicaid overpayments. We affirm.

Colonnade operates a nursing home. Under chapter 7 of the institutional provider handbook, a nursing home may apply for supplemental payment for Medicaid recipients with AIDS, known as “H” supplemental payments, provided that certain prerequisites are met. The individual must be diagnosed as HIV positive, have laboratory confirmation of a reactive screening test for HIV antibodies, and must be receiving active treatment for a condition that meets the Center for Disease Control definition of AIDS. As a precondition to receiving “H” supplemental payment, a nursing home must request and receive prior authorization from Medicaid. A request for prior authorization must contain: (1) a letter from the facility requesting the “H” supplemental payment; (2) a copy of the admission cover sheet; (3) a confirming HIV test; and (4) a signed physician letter or statement documenting current treatment for an opportunistic AIDS-related disease.

During the audit period in question, Colonnade billed for and received from Medicaid $49,965.30 in “H” supplemental payments without first seeking prior authorization or having the AHCA perform a prior authorization review in violation of chapter 7. The AHCA sent Colonnade an audit report indicating it had determined that the amount constituted overpayment and ordered repayment of same.

After a formal administrative hearing, the administrative law judge (ALJ) held that the payments at issue constitute “overpayments” as defined by section 409.913(l)(d), Florida Statutes. The ALJ construed section 409.913(14) as conferring upon the AHCA the authority to demand a repayment of an overpayment. The ALJ ruled that Colonnade’s argument that the AHCA lacked the authority to demand repayment was based on an overly narrow construction of the statute and should be rejected. The AHCA issued a final order and adopted the findings of fact and conclusions of law set forth in the recommended order and ordered Colonnade to remit $49,965.30 in Medicaid overpayments to the AHCA.

Colonnade asserts that the AHCA’s interpretation of section 409.913 is erroneous. We conclude that the plain meaning of the statute dictates that it is within the AHCA’s power to demand repayment.

Section 409.913, Florida Statutes, charges the AHCA with oversight of the integrity of the Medicaid program. Further, section 409.913(14) prorides that:

[t]he agency may seek any remedy provided by law, including but not limited to, the remedies provided in subsections (12) and (15) and s. 812.035, if:
* * *
(d) The provider has failed to maintain medical records made at the time of service, or prior to service if prior authorization is required, demonstrating the necessity and appropriateness of the goods or services rendered;
(e) The provider is not in compliance with provisions of Medicaid provider publications that have been adopted by reference as rules in the Florida Administrative Code, with provisions of state or federal laws, rules, or regulations; with provisions of the provider agreement between the agency and the provider; or with certifications found on claim forms or on transmittal forms for electronically submitted claims that are submitted by the provider or authorized representative, as such provisions apply to the Medicaid program.

Colonnade failed to maintain and provide the necessary medical records in order for AHCA to conduct a prior authorization. Furthermore, Colonnade failed to comply with Medicaid provider publications, i.e., chapter 7 of the institutional provider handbook, by not requesting and receiving prior authorization from Medicaid. Under the statute, the AHCA could seek “any remedy provided by law.” Recovery of the overpayment falls within the parameter of “any remedy provided by law.” Such a construction is consistent with the charge made in the opening paragraph of section 409.913 in which the AHCA is to “operate a program to oversee the activities of Florida Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate.” § 409.913, Fla. Stat. (2002).

Colonnade asserts that subsection (10) of the statute is the only subsection that allows repayment as a remedy. Subsection (10) provides the agency with the authority to require repayment “for inappropriate, medically unnecessary, or excessive goods or services.” Nothing in subsection (10), however, precludes the' agency’s seeking repayment in other circumstances. We note that subsection (14) and subsection (10) are not in conflict. Each statute governs different circumstances.

Furthermore, it is a well-established maxim that an agency’s interpretation of its own rules and regulations is entitled to considerable deference. See Golfcrest Nursing Home v. State, Agency for Health Care Admin., 662 So.2d 1330, 1333 (Fla. 1st DCA 1995). Here, additionally, the AHCA’s interpretation of the statute is consistent with its plain meaning.

Colonnade also contends that the final order is unsupported by competent, substantial evidence. This challenge, however, is not preserved for review. An appellant cannot raise issues on appeal that were not properly excepted to or challenged before an administrative body. See Comm’n on Ethics v. Barker, 677 So.2d 254, 256 (Fla.1996); Couch v. Comm’n on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993)(holding that appellant had waived his right to challenge the recommended order’s findings of fact because he did not file exceptions to the hearing officer’s findings of fact). Here, Colonnade failed to timely file exceptions to the recommended order and the exceptions were stricken. Because Colonnade failed to properly challenge the factual findings before the AHCA, Colonnade cannot do so for the first time on appeal. We note, in any event, that even were the issue preserved for review, Colonnade’s arguments lack merit. Colonnade argues that there is no evidence that the services rendered were inappropriate, medically unnecessary, or excessive. This argument misconstrues the final judgment. The judgment was not based on any finding as to the quality of care received. Instead, the judgment was based on Colonnade’s failure to comply with the Medicaid billing requirement of prior authorization. Colonnade stipulated to not receiving prior authorization and, thus, competent, substantial evidence existed to support the judgment on this basis.

We have also considered and reject the argument that the agency is unjustly enriched by this recovery because it was benefitted by Colonnade’s rendering of services to Medicaid patients. Any benefit here, however, was received by the AIDS patients, not the AHCA. Furthermore, were Colonnade allowed to keep the funds, it would be receiving a benefit in violation of the rules and regulations imposed on Medicaid providers.

As to all other issues raised, we also find no reversible error and affirm.

WARNER and FARMER, JJ., concur.


text:
    OCEAN DRIVE ASSOCIATES, LTD., et al., Appellants, v. Daniel RUIZ, Appellee.
    No. 3D02-1502.
    District Court of Appeal of Florida, Third District.
    May 7, 2003.
    Rehearing and Certification Denied June 6, 2003.
    Nicklaus & Hyatt; Deutsch & Blumberg and James C. Blecke, Miami, for Appellants.
    Ginsberg & Schwartz and Arnold R. Ginsberg, Miami; Lekach, Klitzner & An-sel and Craig Lekach; Goldberg & Hirsch and Sidney A. Goldberg, Miami, for Appel-lee.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See Murphy v. International Robotic Sys., Inc., 766 So.2d 1010 (Fla. 2000); Telemundo Network, Inc. v. Spanish Television Services, Inc., 812 So.2d 461 (Fla. 3d DCA 2002), review dismissed, 831 So.2d 673 (Fla.2002).


author: FULMER, Judge.

text:
    Josephine LOCKLEAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3387.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    Rehearing Denied June 17, 2003.
   FULMER, Judge.

Josephine Locklear appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In her motion, Locklear raised five claims of ineffective assistance of counsel. We affirm and write to discuss one claim.

Locklear alleged that her counsel was ineffective for failing to advise her that the defense of voluntary intoxication was available for the offenses of grand theft and burglary. She claimed that she informed her counsel that she was intoxicated at the time she committed the offenses, thus presenting a legally sufficient claim. See Straitwell v. State, 834 So.2d 918 (Fla. 2d DCA 2003); Foster v. State, 825 So.2d 1023 (Fla. 1st DCA 2002). The trial court denied this claim, relying on psychological reports that indicated Locklear could distinguish right from wrong at the time of the offenses. These reports do not conclusively refute her claim because while she may have been able to distinguish right from wrong, she may not have been able to form the specific intent necessary to commit the crimes charged. See Reaves v. State, 826 So.2d 932 (Fla.2002).

However, upon reviewing other portions of the record attached to the trial court’s order and Locklear’s motion, we conclude that Locklear has failed to demonstrate that she was prejudiced by her counsel’s alleged failure. In order to state a successful claim of ineffective assistance of counsel, a defendant must demonstrate that: (1) counsel’s performance was deficient; and' (2) there is a reasonable probability that, but for counsel’s deficiency, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The record indicates that Locklear made a taped confession in which she admitted to law enforcement that she entered the house with the intent to steal valuable items, and Locklear admits that this confession was introduced by the State at trial. This confession refutes Locklear’s claim that she was prejudiced by counsel’s failure because the confession demonstrates that she had the specific intent to commit both offenses. Even if Locklear had advanced the voluntary intoxication defense, a reasonable probability does not exist that the outcome of the proceeding would have been different. Therefore, Locklear’s claim is without merit, and we affirm the trial court’s order of denial.

Affirmed.

DAVIS and COVINGTON, JJ., Concur.


author: PLEUS, J.

text:
    DEPT. OF HIGHWAY SAFETY & MOTOR VEHICLES, Petitioner, v. James SWEGHEIMER, Respondent.
    No. 5D03-10.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2003.
    Rehearing Denied June 16, 2003.
    Enoch J. Whitney, General Counsel and Heather Rose Cramer, Assistant General Counsel, Lake Worth, for Petitioner.
    Stuart I. Hyman of Stuart I. Hyman, P.A., Orlando, for Respondent.
   PLEUS, J.

The State of Florida, Department of Highway Safety and Motor Vehicles, seeks certiorari review of the circuit court’s decision quashing the suspension of respondent James Swegheimer’s driver’s license for refusal to submit to a breath, blood or urine test. Our review of the decision of the circuit court sitting in its appellate capacity is limited to whether the circuit court afforded procedural due process and applied the correct law. See Dusseau v. Metropolitan Dade County, 794 So.2d 1270 (Fla.2001); Broward County v. G.B.V. Intern., Ltd., 787 So.2d 838 (Fla.2001). The Department argues, and we agree, that the circuit court departed from the essential requirements of law and failed to apply the correct law.

In a formal review pursuant to section 322.2615(7), Florida Statutes, the hearing officer reviewed a probable cause affidavit prepared by a city of Maitland, Florida police officer, alleging that Swegh-eimer committed the offense of DUI at “W/B SR 400/ SR 414, Maitland, FI. 32751.” Swegheimer argued that the affidavit failed to establish that the offense was committed within the city limits of Maitland. In support of his argument, he presented a map of the city of Maitland, which was admitted into evidence. However, the hearing officer concluded by a preponderance of evidence that the officer had probable cause to arrest Swegheimer for DUI.

On certiorari review, the circuit court held that the officer failed to demonstrate he was within his jurisdiction when he developed probable cause. We conclude that the circuit court failed to apply the correct law. The circuit court’s scope of review is limited to determining (1) whether the agency accorded procedural due process; (2) whether the agency observed the essential requirements of the law; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Department of Highway Safety and Motor Vehicles v. Currier, 824 So.2d 966 (Fla. 1st DCA 2002). The circuit court misapplied the law by concluding that the officer failed to establish jurisdiction when the affidavit clearly alleged jurisdiction. Section 322.2615(11), Florida Statutes, allows the hearing officer to conduct a formal review “upon a review of the reports of a law enforcement officer.” Therefore, the circuit court misapplied the law when it concluded that the officer failed to establish jurisdiction while ignoring the probable cause affidavit, which constituted competent substantial evidence of jurisdiction. Id. at 968. Accordingly, we grant the petition for writ of certiorari and quash the circuit court’s decision.

PETITION GRANTED AND DECISION QUASHED.

PETERSON and GRIFFIN, JJ., concur.


text:
    Jonathan STEELE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1030.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2003.
    Rehearing Denied June 11, 2003.
    Jonathan Steele, Jasper, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Downs v. State, 740 So.2d 506 (Fla.1999).

PETERSON, PLEUS and MONACO, JJ., concur.


text:
    Brad EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3308.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2003.
    Rehearing Denied June 11, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Brad Evans, Avon Park, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    James CASEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3443.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Rehearing Denied June 18, 2003.
    James Casen, in proper person.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson (Ft.Lauderdale), Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN, J., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed without prejudice for the appellant to file a petition for mandamus before the trial court.


author: GUNTHER, J. WARNER, J.,

text:
    ZC INSURANCE COMPANY, a foreign corporation, Appellant, v. Annis BROOKS, individually, and as natural guardian of Anselique Ashley Brooks, and Ralph Brooks, individually, and as natural guardian of Anselique Ashley Brooks, Appellees.
    No. 4D01-4655.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Rehearing Denied July 3, 2003.

      Deborah L. Greene and T. Geoffrey Heekin of Bartlett, Heekin, Smith & Greene, P.A., Jacksonville, for appellant.
    .Jane Kreusler-Walsh and Rebecca Mer-cier-Vargas of Jane Kreusler-Walsh, P.A., West Palm Beach, David L. Kahn of David L. Kahn, P.A., Fort Lauderdale, Louis M. Silber of Silber & Valente, West Palm Beach, Keith Gasman, Fort Lauderdale and Peter Diamond of Michael P. Rudd & Assoc., Miami, for appellee Annis Brooks.
   GUNTHER, J.

ZC Insurance Company (“ZC”) appeals an order denying its request for declaratory judgment and granting final summary judgment in favor of Annis Brooks and Ralph Brooks (“the Brookses”), individually and as natural guardians of their daughter Anselique Ashley Brooks (“Anselique”). In granting summary judgment, the trial court held that Annis Brooks was not bound by a family member exclusion to the supplemental liability insurance coverage that she had purchased.

This coverage dispute involves the interpretation of a car rental agreement, an insurance policy between ZC and Dollar Rent-a-Car Systems, Inc. (“ZC/Dollar policy”), and the supplemental liability insurance (“SLI”) purchased by Annis Brooks. ZC issued a insurance policy to Dollar Rent-a-Car Systems, Inc. (“Dollar”), and under the terms of the policy, Dollar paid a flat monthly premium for each car it rented during a month.

Pursuant to the ZC/Dollar policy, in exchange for a fee, individual Dollar customers could purchase a separate policy for additional coverage. One type of additional coverage available was supplemental liability insurance, defined as:

optional excess liability insurance made available to an auto rentee in addition to the primary auto liability insurance provided in the rental contract or in addition to any other rearranged, corporate limits or other primary automobile liability coverage available to the rentee.

The ZC/Dollar policy provided that coverage was not available to the rentee’s family members pursuant to this exclusion:

[l]iability arising out of bodily injury or personal injury or property damage sustained by the rentee or the relatives of the rentee if such relative’s [sic] reside with the rentee as of the date the rental agreement is entered into. Relative is defined as anyone related to the rentee by blood, marriage or adoption.

The ZC/Dollar policy, which sets forth the actual contractual governing provisions, including all of the specific exclusions to the SLI excess coverage, is kept on file at Dollar’s headquarters in Tampa, Florida. It is not available to Dollar customers at rental locations.

Annis Brooks rented a car from Dollar in Fort Lauderdale, Florida, and paid the additional fee for SLI coverage. The Dollar representative folded a copy of the rental agreement, placed it in a paper sleeve, and handed it to Annis Brooks. The rental agreement stated that the ZC/Dollar policy would protect authorized “renters” who did not have liability coverage up to the limits required by law,

for bodily injury or death of another (excluding any of Your or Additional Authorized Renter’s family members related by blood, marriage or adoption residing with You or an Authorized Renter)....

Thus, the rental agreement clearly advises Annis Brooks that the ZC/Dollar policy would not provide coverage for any injuries sustained by her daughter.

The rental agreement is silent, however, on whether the SLI excess coverage would exclude Anselique’s injuries by virtue of a family member exclusion. The rental agreement states that

an Authorized Renter is provided with a separate policy providing excess coverage against third-party liability claims for the difference between the Primary Protection and a maximum combined single limit of $1,000,000 (U.S.) per occurrence for bodily injury, including death and property damage, for other than to the Vehicle or to the property of the Authorized Renter while the Vehicle is on rent to You.

The rental agreement further states that the renter

acknowledge[s] and understand^] SLI is subject to other specific exclusions which are summarized on the separate SLI brochure, which is available at the rental counter.

(emphasis added). It is undisputed that the rental agreement fails to identify by name any specific exclusion, including the family member exclusion. Moreover, although the rental agreement advises that the SLI policy is subject to “other specific exclusions,” the rental agreement does not summarize or identify in any way the exclusions applicable to the SLI excess policy. Thus, a customer such as Annis Brooks would not learn of the family member exclusion to the SLI excess coverage unless she asked, for the separate brochure containing the summary of the specific exclusions.

At the Fort Lauderdale location, the separate SLI brochure that summarizes the exclusions to the SLI coverage was kept behind the counter, behind the computers, and was only given out when a customer specifically requested it. Thus, it is the separate SLI brochure, not the rental agreement, that summarizes the exclusions and advises a customer for the first time in writing that SLI is subject to a family member exclusion and therefore does not provide coverage for family members. ■

After, leaving the DoEar facihty, Annis Brooks was involved in a one-vehicle accident in the DoEar car. When AnseEque, a passenger in the car the night of the accident, sought coverage under the supplemental liability pohcy she was denied coverage under the family member exclusion. ZC filed a declaratory judgment action seeking a determination of its rights and responsibflities under the policy. The Brookses filed counter-claims for declaratory judgment. AE parties filed motions for summary judgment, and after a hearing on the issue the trial court granted summary judgment in favor of the Brooks-es. In its order, the court stated:

Florida law requires an insurance company to set forth aE exclusions to insurance coverage in the document which is deEvered to the insured.... This Court cannot agree that ANNIS BROOKS was bound by an exclusion if she was not specificaEy advised of that exclusion.

We agree with the trial court’s ruling. The applicable standard of review is de novo because the order granting summary judgment is based on legal, not factual, issues. Cont’l Concrete v. Lakes at La Paz III, 758 So.2d 1214, 1217 (Fla. 4th DCA 2000)(citing Menendez v. Palms W. Condo. Ass’n, 736 So.2d 58, 60-61 (Fla. 1st DCA 1999)).

We conclude that the general statement in the rental agreement that SLI coverage is subject to other specific exclusions, which are summarized in a separate document avaüable on request, does not satisfy the requirements of section 627.421, Florida Statutes (2002). Section 627.421 requires delivery of every insurance pohcy to the insured “or to the person entitled thereto” no more than sixty days after the effectuation of coverage. § 627.421(1). The statute also requires that:

[a]ny automobüe liabüity or physical damage pohcy shaE contain on the front page a summary of major coverages, conditions, exclusions, and limitations contained in that pohcy. Any such summary shaE state that the issued pohcy should be referred to for the actual contractual governing provisions. The company may, in heu of the summary, provide a readable pohcy.

Id. at (3)(emphasis added).

In this case, neither a readable policy nor a pohcy with a front page summary of the exclusions was delivered to Annis Brooks. The rental agreement, as delivered to Annis Brooks, conforms with neither the letter nor the spirit of the statute. It fails to properly summarize on the front page the specific exclusions so that customers are adequately informed of then-coverage under the SLI excess pohcy. The very language of the rental agreement stating that the other specific exclusions to SLI coverage are “summarized on the separate SLI brochure” is a clear indication that the insurer did not intend the rental agreement to be the “summary” mandated by section 627.421. Instead, contrary to the statutory requirement, the onus is placed on the customer to ferret out the “summary.” We conclude that this instruction to the customer does not constitute delivery within the meaning of the statute. Id.

Judge Warner’s thoughtful dissent observes that section 627.421 grants sixty days to provide a copy of the policy to insureds like Annis Brooks. It is uncon-troverted in this case that ZC did not provide Annis Brooks with a copy of the policy within that time frame; therefore, ZC failed to comply with the terms of the statute. We respectfully disagree with the conclusion that the rental agreement was silent as to the scope of coverage. It purported to set forth the terms of coverage, and under Rucks v. Old Republic Life Insurance Co., 345 So.2d 795 (Fla. 4th DCA 1977), any conflict with the actual policy must be resolved in favor of coverage. 345 So.2d at 796. Although the certificates of insurance in Rucks were clearly not the policy, the information they contained that implied greater coverage than actually existed was held to bind the insurer to the broader coverage. Id. at 798.

Regarding creating coverage where none existed, it is true that the terms of the policy that Annis Brooks never saw excluded family members from coverage, but the question under Crown Life Insurance Co. v. McBride, 517 So.2d 660 (Fla.1987), is whether failing to provide Annis Brooks with adequate information regarding the scope of the coverage she purchased is tantamount to “fraud or other injustice.” 517 So.2d at 662. Florida law recognizes that fraud can occur by omission, and places a duty on one who 'undertakes to disclose material information to disclose that information fully. Gutter v. Wunker, 631 So.2d 1117, 1118-19 (Fla. 4th DCA 1994). In this case, providing Annis Brooks with documents that define coverage while failing to provide documents that set forth the exclusions to that coverage is tantamount to fraud by omission.

Florida legislators have enacted laws to govern automobile liability policies that require sufficient information be provided to insureds, not merely made available upon request. Id. The obvious point of requiring insurers to deliver a policy to the insured with a summary of coverage and exclusions on the front page, or in the alternative providing a readable policy, is to place sufficient information in the insured’s hands to allow her to be fully informed of the scope of the coverage she has purchased. In this case, the rental agreement was particularly misleading because it did set forth the family member exclusion to the coverage provided under the ZC/Dollar policy, but was silent as to the family member exclusion to SLI excess coverage.

We liken this case to the “unacceptable paradox” that is created when an insured receives a document that purports to give coverage, while a separate, unseen document cancels that very coverage. Rucks, 345 So.2d at 798. Under Rucks, an insurer cannot furnish an insured with documents indicating that coverage exists under the policy, then rely on an exclusion set forth only in documents never actually delivered to the insured to deny coverage.

Accordingly, we affirm the order granting summary judgment. In addition, we grant the Brookses’ motion for attorney’s fees in an amount to be determined by the trial court.

AFFIRMED.

HARNAGE, HENRY H., Associate Judge, concurs.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

The policy in question specifically excluded coverage for family members. The effect of the trial court’s ruling, and the majority’s affirmance, is to create coverage where none existed. The only circumstance where courts have authorized the creation of coverage has been in promissory estoppel cases to prevent forfeiture of coverage where failure to do so would sanction fraud or injustice. See Crown Life Ins. Co. v. McBride, 517 So.2d 660, 662 (Fla.1987). The Crown court further explained that “[s]uch injustice may be found where the promisor reasonably should have expected that his affirmative representations would induce the promisee into action or forbearance substantial in nature, and where the promisee shows that such rebanee thereon was to his detriment.” Id. (emphasis added). See also Travelers Indem. v. Billue, 763 So.2d 1204, 1204 (Fla. 1st DCA 2000) (noting promissory estoppel requires proof that one party relied to his detriment on the affirmative misrepresentation of another); Prof'l Underwriters Ins. Co. v. Freytes & Sons Corp., 565 So.2d 900, 903 (Fla. 5th DCA 1990) (holding the statement by insurer’s agent that insured “had what he needed” lacked specificity to constitute a representation for purposes of promissory estoppel to create coverage).

In Rucks v. Old Republic Life Insurance Co., 345 So.2d 795, 797 (Fla. 4th DCA 1977), cited by the majority, our court acknowledged this principle of law, stating “while an insurer may be estopped by its conduct from seeking a forfeiture of a pob-ey, the insurer’s coverage or restrictions on the coverage cannot be extended by the doctrine of waiver and estoppel.” (Quoting Six L’s Packing Co. v. Fla. Farm Bureau Mut. Ins. Co., 268 So.2d 560, 563 (Fla. 4th DCA 1972)).

Here, no affirmative representation was made either by Dobar or the insurance company as to the extent of the supplemental insurance and whether it covers family members. As the majority opinion points out, the rental document simply was silent on the point, only directing the renter to the brochure for more details regarding coverage.

I do not think that section 627.421, Florida Statutes (1999), forms a basis for creating coverage, nor do I think it was violated in any event. It does not appear to me that section 627.421 was intended to apply to car rental agreements in which the renters purchased supplemental insurance because the rental agreement is not the policy. It specificaby refers to other documents to determine the extent of coverage. Even if the statute applied, the insurer had sixty days in which to debver a copy of the pobey containing ab of the exclusions. The policy had to include a summary of the coverages and exclusions. Here, the rental agreement was obviously not the pobey.

More apropos is section 627.4143(1) which requires an outline of coverage, including the principal exclusions, to be provided prior to the issuance of an automobile policy or to accompany the policy when issued. However, that section specifically provides “[njeither this section nor the outline of coverage mandated by this section alters or modifies the terms of the insurance contract, creates a cause of action, or is admissible in any civil action.” § 627.4143(5), Fla. Stat. (1999). Thus, although the Legislature directed the insured be given notice of the terms and exclusions of the pobey, it also clearly provided that failure to comply with the statute would not alter the terms of the insurance contract.

Under the present state of the law, I cannot conclude the insurance company is required to extend coverage to a family member specifically excluded by the terms of the pobey where the insurance company made no affirmative misrepresentations of the terms of the pobey.


text:
    Adriaan ANGELUS, Appellant, v. Henry I. PASS and Eileen Pass, Appellees.
    No. 3D02-3343.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Rehearing Denied June 18, 2003.
    Pathman Lewis and Richard Wolfe, Miami, and Marc Pugliese, Coral Gables, for appellant.
    Henry I. Pass (Bala Cynwyd, PA); H. Hugh McConnell, for appellees.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   PER CURIAM.

Angelus appeals an order determining the validity of an “option” for the sale of her deceased mother’s condominium. For the reasons which follow, we reverse.

Ruth Snyder wrote a letter to her nephew-in-law, appellee Henry Pass, informing him that she had written a will. The letter indicated that she had not included her condominium in the will and further stated “If I am still here when I die I would like to sell it to you and Eileen [Ms. Snyder’s niece and Henry’s wife] for $100.” Upon Ms. Snyder’s death, Mr. Pass, treating the letter as an option to purchase the condominium, delivered a check for the $100.00, and made a claim against the estate. Upon appellant’s objection to the claim, appellees instituted the instant action for declaratory judgment and specific performance. The trial court appointed an administrator ad litem to evaluate the claim. In his report, which was adopted by the trial court, the administrator found sufficient consideration for the agreement and determined the letter to be a valid option contract.

We cannot agree with this ruling which in effect sanctions a testamentary transfer of property that does not comply with the statutory requirements of a will. See § 732.502, Fla. Stat. (2001); Williams v. Williams, 149 Fla. 454, 6 So.2d 275 (1942) (“If the intention is manifest that the deed should not take immediate effect, but shall be operative only upon the grantor’s death, it will never take effect at all unless it is executed with such formalities that it may be given effect -as a testamentary disposition”) We, therefore, reverse the judgment below and remand for further proceedings.


text:
    Michael TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1104.
    District Court of Appeal of Florida, First District.
    June 2, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003).

ALLEN, C.J., ERVIN and BARFIELD, JJ., concur.


text:
    Thomas TWITTY, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4369.
    District Court of Appeal of Florida, First District.
    June 2, 2003.
    Nancy A. Daniels, Public Defender; Joel D. Arnold, Assistant Public Defender, Tallahassee, for Appellant. '
    Charlie Crist, Attorney General; Janelle C. Gillaspie, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we agree that no reversible error occurred. We affirm Appellant’s revocation of probation and imposition of judgment and sentence. However, because the trial court failed to enter amended orders of revocation reflecting Twitty’s plea of not guilty to the probation violation and his amended sentences as to the misdemeanor counts, we remand for the trial court to enter such orders. See Cozart v. State, 823 So.2d 234 (Fla. 1st DCA 2002).

DAVIS, LEWIS and HAWKES, JJ., concur.


text:
    George HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5057.
    District Court of Appeal of Florida, First District.
    June 2, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003).

ALLEN, C.J., ERVIN and BARFIELD, JJ., concur.


author: PETERSON, J.

text:
    Julius G. RINAS, Appellant, v. Vicki L. RINAS, etc., Appellees.
    No. 5D02-2309.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.

      William H. McDonald, III, Ocala, for Appellant.
    No appearance for Appellees.
   PETERSON, J.

Julius G. Rinas appeals a June 12, 2002 order vacating a judgment dated August 18,1998. The 1998 judgment:

1. Entered a one-year injunction against him prohibiting domestic violence in protection of A.E.R., a minor; and
2. Awarded temporary custody, child support and alimony for the benefit of A.E.R.’s mother and sister.

The 1998 judgment was later modified to reduce alimony and to extend the injunction indefinitely upon a finding of indirect criminal contempt.

The father contends that while the original action for the domestic violence injunction was properly initiated by A.E.R.’s mother as “next friend,” or A.E.R.’s representative, because A.E.R. was a minor, the action could not also incorporate a request for custody and child support as to A.E.R.’s sister, nor a request for alimony. Stated differently, A.E.R., the real party in interest could request the domestic violence injunction, but she could not initiate an action on behalf of her sister and mother for custody, child support and alimony. Neither the mother nor the sister were parties to the action in their individual capacities. The father also contends that the judgment awarding custody, child support and alimony was void ab initio because the court lacked jurisdiction to make those awards. We agree.

A.E.R. could not invoke the court’s jurisdiction as a representative of her sister or mother to seek custody, child support or alimony. Although A.E.R.’s mother brought the action as “next friend” of A.E.R, neither the mother or sister were parties to the action. The mother was a party to the action only in her representative capacity for A.E.R., a minor, who was seeking an injunction pursuant to section 741.30, Florida Statutes (1997). That statute does not authorize awards of custody, child support or alimony in the absence of a proceeding for dissolution of marriage.

The trial court recognized that the 1998 judgment exceeded its jurisdiction and vacated it as to the mother and sister as of June 12, 2002. The rationale used to vacate as of that date rather than vacating it ab initio was the lack of a timely appeal by the father within 30 days of the previous orders.

The trial court, while correctly finding it lacked jurisdiction to award any relief on behalf of the Petitioner’s next Mend” (AE.R.’s mother) or Petitioner’s sister, erred in applying the 30 day time limitation period for filing an appeal. Judgments which are void at the outset, may on motion at any time be vacated. See Fla.R.Civ.P. 1.540(b). This court in Greisel v. Gregg, 733 So.2d 1119, 1121 (Fla. 5th DCA 1999), found that “a judgment alleged to be void may be attacked at any time because the [void] judgment creates no binding obligations on the parties (and) is legally ineffective and is a nullity.” In Greisel, seven years had passed since the entry of a judgment, yet the debtor there was not barred from seeking relief because the final judgment was void. In Whigham v. Whigham, 464 So.2d 674 (Fla. 5th DCA 1985), this court in a dissolution of marriage action found that a seven year delay in the filing for relief alleged to have been granted in the absence of the court having subject matter jurisdiction to distribute marital property was void at its rendition. This court reversed the trial court’s decision with instruction to the trial court to partially vacate the final judgment in Whigham. Therefore, when a final judgment is void from the outset, the requirement to file an appeal within 30 days of the rendition of the final judgment does not apply.

The father’s motion to vacate the void judgment ab initio should have been granted. The earlier order was void when entered because A.E.R. lacked standing to act on behalf of her mother or sister and the trial court never acquired jurisdiction.

We partially vacate the June 27, 2002 order vacating the earlier orders regarding custody, support and alimony as of June 12, 2002 and remand for an order vacating them ab initio. We affirm that portion of the order dissolving the injunction for protection against domestic violence.

AFFIRMED in part; REVERSED and VACATED in part; REMANDED.

PALMER and TORPY, JJ., concur.

      . See, e.g., Kingsley v. Kingsley, 623 So.2d 780 (Fla. 5th DCA 1993); H.K., a child by and through her next friend, Bruce H. Colton v. Vocelle, 667 So.2d 892 (Fla. 4th DCA 1996).

        . We note that A.E.R. will continue to receive child support and the mother and sister have initiated proceedings of which they are parties in order to seek alimony and child support.


text:
    Jimmy MAHONE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1515.
    District Court of Appeal of Florida, Fifth District.
    June 10, 2003.
    Jimmy Mahone, Clermont, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. McBride, 848 So.2d 287, 2003 WL 21088088 (Fla. May 15, 2003).

PETERSON, GRIFFIN and PALMER, JJ., concur.


text:
    COMPTECH INTERNATIONAL, INC., Petitioner, v. MILAM COMMERCE PARK, LTD., etc., et al., Respondents.
    No. 3D03-605.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Jeffrey J. Pardo, (Burlington, CT), for petitioner.
    Blaxberg, Grayson, Kukoff & Segal and Moisés T. Grayson and Ian J. Kukoff, Miami; Homer, Bonner & Delgado and Christopher King and R. Lawrence Bonner, Miami, for respondents.
    Before SHEVIN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

The petition for writ of certiorari is denied.


text:
    Alberto SAN PEDRO and Dulce San Pedro, Appellants, v. Lourdes SAN PEDRO, Appellee.
    No. 3D01-1087.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    G. Richard Strafer; Mark H. Hilde-brandt, Miami-Beach, for appellants.
    Charles L. Neustein, Miami Beach, for appellee.
    Before GERSTEN, GREEN, and SHEVIN, JJ.
   PER CURIAM.

We commend the patient trial judge as she presided over a lengthy trial in which neither party was forthright. Such a trial environment is a virtual nightmare for any trial judge. Nonetheless, the trial court managed to ferret out the truth and to arrive at an equitable judgment. We affirm the trial court’s ruling in all respects.

Affirmed.


author: COPE, J.

text:
    Gary Paul BELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2607.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.

      Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand and Melissa Vaughan Rubin, Assistant Attorneys General, for Appellee.
    Before COPE, GODERICH and GREEN, JJ.
   COPE, J.

Gary Paul Bell appeals his conviction and sentence for attempted kidnapping. We affirm.

Defendant-appellant Bell argues that the trial court should have excluded as hearsay the officer’s testimony regarding the victim’s account of the crime. The trial court admitted the testimony under the hearsay exception for excited utterances.

The victim testified that she was walking along the street during the daytime when the defendant twice drove up to her in his van and offered to give her a ride to her destination. She refused. When the victim next saw the defendant he was standing on the sidewalk with his van parked nearby. He grabbed her around the neck, held a gun to her head, and attempted to force her into the van. She broke free, ran into traffic, pounded on cars, and asked for help in getting away. The defendant, standing nearby, pointed his gun and threatened to shoot her.

The victim returned to her house and called the police. They found the victim to be hysterical and very fearful that the defendant may have followed her home. The victim was so upset that she could not speak. It took the officers fifteen or twenty minutes to calm the victim down to the point where she could give them a statement.

The hearsay exception for excited utterances applies to “[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” § 90.803(2), Fla. Stat. (2001).

The Florida Supreme Court has said:
The essential elements necessary to fall within the excited utterance exception are that (1) there must be an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must be made while the person is under the stress of excitement caused by the event.
The spontaneous statement exception and the excited utterance exception often overlap. However, as noted by Professor Ehrhardt:
The two exceptions differ mainly in the amount of time that may lapse between the event and the statement describing the event. Under Section 90.803(2) it is not necessary that there be contemporaneity between the event and the statement. As long as the excited state of mind is present when the statement is made, the statement is admissible if it meets the other requirements of Section 90.803(2). This excited state may exist a substantial length of time after the event. Factors that the trial judge can consider in determining whether the necessary state of stress or excitement is present are the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements. Whether the necessary state of mind is present is a preliminary fact for the court to determine pursuant to Section 90.104.

State v. Jano, 524 So.2d 660, 661 (citation omitted) (quoting Charles W. Ehrhardt, Florida Evidence § 803.2 (1984)) (emphasis added).

The defendant argues that the victim’s statements in this case fail the excited utterance test because there was a time delay of approximately 50 minutes between the time of the incident and the time the victim became calm enough to speak. According to the defendant, this was sufficient time for the victim to contrive or misrepresent.

As the Jano decision indicates, however, points two and three of the test are interwoven. The theory of this hearsay exception is that so long as the declarant remains under the stress of excitement caused by the event, the declarant is unlikely to contrive or misrepresent.

In this case the investigating officer described the victim as hysterical when he first reached the house. She kept going to the window and looking outside to be sure that the defendant was not there. She was so upset she could not speak at all. The trial court permissibly concluded that the victim remained sufficiently under the stress of excitement of the event to make this an excited utterance for purposes of the hearsay exception. Henyard v. State, 689 So.2d 239, 251 (Fla.1996). Even if there were any error here, and we do not think there is any, we fail to see any harm as the victim herself testified and was subject to defense cross-examination on all of this.

Turning to the defendant’s other claims, the victim identified the defendant out of court and in court, and the evidence was legally sufficient to convict him. The ruling on the request for continuance was within the trial court’s discretion. The defendant’s complaints about his counsel after the State rested its case did not involve specific allegations of incompetence and did not call for an inquiry by the court. See Branch v. State, 685 So.2d 1250, 1252 (Fla.1996); Davila v. State, 829 So.2d 995 (Fla. 3d DCA 2002). There is no merit to the defendant’s argument that corpus delicti was insufficiently proved. See Schwab v. State, 636 So.2d 3, 6 (Fla.1994).

The defendant correctly argues that there were errors in the jury instructions in this case, although those errors were not called to the attention of the trial court. The errors were, however, harmless under the circumstances of this case, and did not amount to fundamental error. See Reed v. State, 837 So.2d 366, 369-70 (Fla.2002).

The defendant in this case was charged with attempted kidnapping. The kidnapping statute provides, in relevant part:

787.01 Kidnapping; kidnapping of child under age 13, aggravating circumstances.—
(l)(a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.

§ 787.01(l)(a)2„ 3., Fla. Stat. (1997).

Subparagraphs 2 and 3 are alternatives for each other. The State need only prove the elements of subparagraph 2, or sub-paragraph 3, in order to convict the defendant. Carter v. State, 762 So.2d 1024, 1027 (Fla. 3d DCA 2000).

With respect to subparagraph 2, the jury instruction stated, “Gary Bell acted with the intent to commit or facilitate the commission of an assault and or battery and or attempted kidnapping.” The defendant is correct in saying that this instruction is erroneous.

Under subparagraph 2, the State must establish that the defendant acted with intent to commit a felony. In this case, the court erred by including assault and battery in the jury instruction. That is so because assault and battery are misdemeanors, not felonies. See §§ 784.011, 784.03, Fla. Stat. (1997).

The defendant is also correct in saying that the offense of attempted kid- ' napping should not have been listed. That is so because the substantive charge in this case was attempted kidnapping. It is impermissible and circular to charge that the defendant committed attempted kidnapping with the intent to commit attempted kidnapping. Harrison v. State, 743 So.2d 178, 179 (Fla. 3d DCA 1999). The kidnapping statute requires that when the defendant unlawfully confined, abducted, or imprisoned the victim, the defendant did so with intent to commit another, different offense. Id.

There is, however, no reversible error in this case. That is so because of an offsetting error. The jury instructions told the jury that in order to convict the defendant, the jury must find that the defendant had committed the acts described under both alternatives of the kidnapping statute, i.e., subparagraph 2 and subparagraph 3.

The jury found the defendant guilty as charged. In so doing, the jury necessarily found the defendant was guilty under subparagraph 3, that is, that the defendant acted with the intent to “[ijnflict bodily harm upon or to terrorize the victim or another person.” § 787.01(l)(a)3., Fla. Stat. (1997). Since the instruction under subparagraph 3 was correct and the jury necessarily convicted under subparagraph 3, it follows that the error in subparagraph 2 was harmless, and the defendant is not entitled to a new trial.

The defendant argues that the sentence imposed on him was vindictive and asks for a new sentencing proceeding. See Wilson v. State, 845 So.2d 142, 145 (Fla.2003). We reject the claim of vindictive sentencing.

During a hearing on the defendant’s motion to suppress evidence, the judge inquired about the status of plea negotiations between the State and the defendant. The State had extended a plea offer of 364 days in jail followed by 4 years of probation, 200 community service hours, and a stay-away order. The parties explained that there had been extensive negotiations but the plea had not been accepted. The defendant confirmed that he did not want to accept the plea. He stated that he needed to work to support his family and would be willing to enter into a plea for work release or possibly work release after six months incarceration. The trial court indicated that it would be willing to eliminate the community service hours, but would not otherwise renegotiate the terms that the State had offered. The defendant reiterated that he would not accept the plea, and the case proceeded to trial.

During the trial, the court heard the victim’s testimony about the attempted kidnapping. At the sentencing proceeding, the victim again spoke briefly. The defendant’s wife spoke, as did the defendant.

The court then stated:
THE COURT: Okay. Thank you. When one assumes these black robes one of the things you rapidly come to realize is that at the moment [this] is the hardest part of what my duties are and the law and the constitution are because in a situation like this, there are no winners. There you have the victim over here who has literally gone through hell.
Her life will never be the same. She is certainly not a winner. But him getting convicted here by a jury of his peers, she doesn’t win because she cannot undo what she has gone through.
Mr. Bell is certainly not a winner. He is a young man that had no restrictions or limitations in his life and I have got to know him for the time he has been here before the court, many times in all the resets and all the court dates that we have had and I see his family is all here, a devoted wife who has not abandoned him but who has supported him to the very last moments and those children.
It is all painful to me to see the children. Because they certainly did not have anything to do nor did they ask to be put in the midst of this tragedy and that is what it is, it is a tragedy.
It is a personal tragedy. It is a civic tragedy. However, duty must be done and you have been charged and you have been convicted and the court and jury [have] listened to the evidence and found this to be an extremely hideous crime that did not complete itself because you either failed or were prohibited by someone to finish the crime.
You have stood on your right[s], all along, and I respect that, your right of remaining silent and your right to pleading not guilty. However, now the burden has shifted and in accordance with our law the jury of your peers has found you guilty and they even believed that the state has proved this case against you beyond and to the exclusion of every reasonable doubt. And based upon that I must pass sentence.
At this time, as I said, having been found guilty by a jury of your peers of the crime under statute number 787.01, attempted kidnapping with a firearm, the court hereby sentences you to thirty years in the state penitentiary.

Subsequently the trial court mitigated the sentence to twenty years.

The defendant argues that a presumption of vindictiveness arose in this case because of the trial court’s plea discussion with the defendant, and because of the great disparity between the plea offer and the twenty-year sentence eventually imposed. We do not agree with the defendant’s argument.

To begin with, most criminal cases are disposed of by plea agreement. In the course of managing its docket, the trial court is certainly allowed to ask the parties whether the State has extended a plea offer, and what the status of the plea negotiation is. Plainly the trial court needs to know whether the case is, or is likely to be, going to trial. Thus, the inquiry by the trial court regarding the status of plea negotiations was perfectly permissible.

In this case, the State had made a plea offer which was pending. Upon inquiring about the status of the plea negotiation, the defendant explained to the court why he was unwilling to accept the state’s offer. The court then indicated the one modification that it would entertain, the elimination of the community service hours. This was permissible under State v. Warner, 762 So.2d 507, 514 (Fla.2000). The court refrained from becoming an advocate for the State’s plea offer. The court did not imply or state that there would be any future adverse consequences firom failure to accept the plea offer. See Wilson v. State, 845 So.2d at 158. Upon the defendant’s rejection of the offer, the court proceeded with the pending matters and preparation for trial.

While there was a significant disparity between the State’s plea offer and the sentence eventually imposed by the court, the reasons for this are clear in the record. At the time of the plea discussion, the court had not yet heard the testimony of the victim. The court’s remarks make clear the court’s view of the severe impact on the victim and that this serious crime could have been even worse had the victim not escaped. We conclude that the sentence was entirely permissible and that the defendant has failed to establish vindictiveness.

Affirmed.

      . The defendant argues that allowing the police officer to repeat the victim’s account of the incident amounts to unfair bolstering of the victim’s testimony. The defendant relies on Reyes v. State, 580 So.2d 309 (Fla. 3d DCA 1991). That, however, was a case in which there was contradictory evidence regarding whether the child sexual abuse took place at all, leaving the victim saying yes, a child witness saying no, and the defendant denying that the incident took place. Id. at 310.
      In the present case, there was no evidence which contradicted the victim's description of the attempted kidnapping. The defendant's defense was misidentification. As to the identification, the victim saw the defendant in the neighborhood two months after the incident and called the police, who arrested him. In addition to identifying the defendant out of court, she identified him at trial.

      . The crime date was June 1, 1999.


text:
    Evelio RODRIGUEZ-GRAVE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3409.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH, and WELLS, JJ.
   PER CURIAM.

Evelio Rodriguez-Grave appeals an order dismissing his rule 3.850 motion to withdraw plea and vacate judgment and sentence. That motion, filed October 2000, claims only that Rodriguez-Grave had not been informed at the time that he pled guilty in 1981 to robbery and second-degree murder that he might be subject to deportation as a consequence of this plea. We affirm.

In State v. Richardson, 785 So.2d 585, 588 (Fla. 3d DCA 2001), we concluded that for “pre-1989 cases the Florida Supreme Court has allowed a plea to be attacked only if the defendant received positive mis-advice of counsel regarding immigration consequences of the plea.” No such attack is made here. The order is, therefore, affirmed. See Ghanavati v. State, 820 So.2d 989 (Fla. 4th DCA 2002)(“We agree with the third district [in Richardson ] that State v. Ginebra, 511 So.2d 960, 961 (Fla.1987) (finding deportation to be a collateral consequence of which the trial court was not required to advise [prior to January 1, 1989]), still controls with respect to pleas entered prior to the change in rule 3.172”); see also Perdomo v. State, 837 So.2d 1089 (Fla. 3d DCA 2003); Orellanes v. State, 790 So.2d 613 (Fla. 3d DCA 2001); Diaz v. State, 790 So.2d 581 (Fla. 3d DCA 2001); Contino v. State, 790 So.2d 576 (Fla. 3d DCA 2001); State v. Paniagua, 789 So.2d 1199 (Fla. 3d DCA 2001); Del Pino v. State, 785 So.2d 1263 (Fla. 3d DCA 2001).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Marti Cassandra RAYMOND, Appellee.
    No. 3D02-1711.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Charles J. Crist, Jr., Attorney General, John D. Barker, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender.
    Before COPE, GERSTEN, and SHEVIN, JJ.
   PER CURIAM.

We agree with the well-reasoned May 21, 2002, opinion of the 11th Judicial Circuit’s Appellate Division, granting the petition for writ of habeas corpus. The court held paragraph 907.041(4)(b), Florida Statutes (2000), to be unconstitutional as a procedural rule which encroaches on the Florida Supreme Court’s exclusive rule-making authority. See Fla. Const. Art. II, § 2(a). We affirm the decision below and adopt its reasoning in all respects.

Affirmed.


text:
    Reginald WOODY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1645.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K Traína, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and SHEVIN, JJ.
   PER CURIAM.

Reginald Woody appeals his conviction for burglary of an unoccupied structure. As to the claim of trial error, we conclude that the prosecutorial comment was not fairly susceptible of being a comment on silence. See Rodriguez v. State, 753 So.2d 29, 37 (Fla.2000). Thus, the objection of defendant-appellant Woody was properly overruled.

The defendant challenges his sentence as a violent career criminal. He argues that his predicate offenses were non-violent burglaries which should not have been counted as qualifying offenses. See § 775.084(l)(d)l.a., Fla. Stat. (1999). We have rejected that argument in Rodriguez v. State, 826 So.2d 464 (Fla. 3d DCA 2002), reh’g denied and further explained, 837 So.2d 1177 (Fla. 3d DCA 2003); Delsol v. State, 837 So.2d 428 (Fla. 3d DCA 2002).

Affirmed.

       The crime date was May 9, 2000.


text:
    Sunita A. MOHAMMED, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D02-2480.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.

      Sunita A. Mohammed, in proper person.
    John D. Maher (Tallahassee), for appel-lee.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   PER CURIAM.

The claimant, Sunita A. Mohammed, appeals from an order of the Unemployment Appeals Commission [UAC] disqualifying her from receiving unemployment compensation benefits. We reverse the UAC’s order and reinstate the appeals referee’s initial determination of benefits.

The claimant contends that the UAC erred by reversing the appeals referee’s determination of benefits where the employer failed to meet its burden of showing that the claimant was discharged for misconduct connected with work. We agree.

The appeals referee made the following findings of fact:

The claimant was employed as an operations analyst 1 for an insurance company from February 22, 1999, through April 4, 2002. The claimant’s work hours were 8:30 a.m. to 5:30 p.m., Monday through Friday. The claimant was told at the time of hire that there would be times when she needed to work more than 40 hours to complete her work. The hiring employer told the claimant that this would not always happen. The claimant would work through her lunches and stay later until her work was completed. The claimant was on maternity leave until December 11, 2001. When the claimant returned, she was transferred to another department within the company. This was not at the claimant’s request. In January 2002, the new employer changed the claimant’s hours of work. The employer told the claimant she would need to work her regular hours, and up to 9:00 p.m. on Wednesday to complete the work. The claimant told the supervisor that she was willing to work through her lunches and stay up to 6:00 p.m. through the week, but did not have childcare past 6:30 p.m. and could not work up to 9:00 p.m. The claimant also offered to take work home, so that she could complete the assignments she was given. The employer did not want the claimant to work the extra hours she was suggesting, only the new hours they were presenting. The employer discharged the claimant for alleged insubordination, for refusing to work extra hours.

The appeals referee concluded that the employer failed to meet its burden of showing that the claimant was discharged for misconduct connected with work. Specifically, the appeals referee found that the employer changed the claimant’s terms of hire. The appeals referee reasoned that the claimant did not refuse to work extra hours, only that she could not stay until 9:00 p.m. due to childcare problems. Further, the appeals referee noted that the claimant had offered alternatives that the employer had rejected.

The employer appealed the determination of benefits to the UAC. The UAC reversed the appeals referee’s determination of benefits on the basis that “there is no evidence in the record that the claimant’s job duties had changed or that the requirement that the claimant work additional hours was a new requirement.” The UAC found that the claimant’s refusal to work the additional evening hours amounted to misconduct connected with work and disqualified the claimant from receiving benefits. The claimant’s appeal follows.

The claimant contends that the UAC erred by reversing the appeals referee’s determination where the determination was supported by substantial, competent evidence. We agree.

The UAC can only substitute its judgment for that of the appeals referee when the appeals referee’s determination is not supported by competent, substantial evidence. Perez v. American Med., Inc., 842 So.2d 285, 286 (Fla. 3d DCA 2003); Ferguson v. Henry Lee Co., 734 So.2d 1161, 1162 (Fla. 3d DCA 1999); Tourte v. Oriole of Naples, Inc., 696 So.2d 1283 (Fla. 2d DCA 1997). In the instant case, the appeals referee’s determination that the claimant was discharged for reasons other than misconduct connected with work was, in fact, supported by competent, substantial evidence. It is uncontroverted that when the claimant returned from maternity leave, she was transferred to another department where the hours that the claimant was required to work were not those agreed to on hire. In her former position, the claimant was not required to work until 9:00 p.m. once a week. Additionally, although required to work additional hours in her former position, the supervisor allowed her to work through lunch and stay until 6:00 p.m. to complete those additional hours. Clearly, there was evidence that the claimant’s terms of hire had changed. For this reason, we find that the UAC improperly substituted its judgment for that of the appeals referee.

Accordingly, we reverse the UAC’s order disqualifying the claimant from receiving benefits and reinstate the appeals referee’s initial determination of benefits.


text:
    Pastor M. TORRES, M.D., P.A., a Florida corporation and Pastor M. Torres, Appellants, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, P.A., Appellee.
    No. 3D03-162.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Perez & Perez and Renato Perez, Miami, for Appellants.
    Merritt & Sikes and Michael D. Sikes, Miami, for Appellee.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

The appellants seek review of an adverse summary judgment on insurance coverage. As to the procedural point, see Tingle v. Dade County Board of County Commissioners, 245 So.2d 76, 78 (Fla.1971) (successor judge may “vacate or modify the interlocutory rulings or orders of his predecessor in the case”) (emphasis in original); Wasa International Ins. Co. v. Hurtado, 749 So.2d 579, 580 (Fla. 3d DCA 2000). On the merits, we entirely agree with Judge Leesfield that the insurance policy by its terms excluded coverage for the appellants-lessees.

Affirmed.


text:
    BON SECOURS—ST. JOSEPH HOSPITAL and Johns Eastern Company, Appellants, v. Norbert A. HUGHES, Appellee.
    No. 02-2260.
    District Court of Appeal of Florida, First District.
    June 13, 2003.
    Cindy R. Galen, Esquire, and Hermes Eraelides, Esquire, Eikner & Johannessen, L.L.P., Sarasota, for Appellants.
    Barbara B. Wagner, Esquire, Fort Lauderdale; Brian Sutter, Esquire, Port Charlotte, for Appellee.
   PER CURIAM.

Affirmed. Castro v. Fellsmere Management, 589 So.2d 425 (Fla. 1st DCA 1991).

BOOTH, BENTON and POLSTON, JJ., concur.


text:
    Christopher SCHURMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0908.
    District Court of Appeal of Florida, First District.
    June 13, 2003.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We agree with appellant that the trial court should have awarded him an additional 222 days for time served in county jail between the time of his arrest in 1993, and the commencement of his initial community control sentence. Our review of the sentencing form discloses that the court should have employed the “split sentence violator resentencing” option and awarded credit for 222 days incarcerated in county jail, in addition to the 618 days’ credit given appellant while confined in jail between the dates of his release from prison in May 1998, and his resentencing in July 2000.

We disagree with appellant, however, as to his argument that counsel was ineffective for failing to recognize that his sentence in Case No. 93-202 had expired before the violation of probation resulting in his resentencing in May 1999. It is well established that a person cannot be sentenced to simultaneous prison and probation. See Porter v. State, 585 So.2d 399 (Fla. 1st DCA 1991); Brooks v. State, 762 So.2d 1011 (Fla. 5th DCA 2000); Clemons v. State, 629 So.2d 1067 (Fla. 2d DCA 1994); Cox v. State, 468 So.2d 437 (Fla. 2d DCA 1985); Pearson v. State, 354 So.2d 97 (Fla. 2d DCA 1977). Consequently, although the incarcerative portion of his sentence in Case No. 93-202 may have expired prior to his release from prison in May 1998, the probationary portion of that sentence was tolled while he remained in prison on other sentences, and it did not begin to run until appellant was released in May 1998. Therefore, his probationary sentence in Case No. 93-202 was in effect at the time he violated probation, and the trial court properly denied appellant’s claim of ineffective assistance of counsel.

AFFIRMED in part, REVERSED in part, and REMANDED with directions to correct the sentencing form to reflect appropriate jail credit. Appellant need not be present.

ERVIN, KAHN and PADOVANO, JJ., concur.