author: WALLACE, Judge.

text:
    William C. BROWN, Appellant, v. Raymond REYNOLDS and Frank Reynolds, Appellees.
    No. 2D02-5401.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      William C. Brown, pro se.
    Frank Reynolds, pro se.
    No appearance for Appellee Raymond Reynolds.
   WALLACE, Judge.

William C. Brown filed an action for replevin against Raymond Reynolds (Raymond) and Frank Reynolds (Frank) seeking to recover the possession of personal property located in Pinellas County, Florida. After a hearing on Brown’s motion for the issuance of a writ of replevin prior to the entry of final judgment pursuant to sections 78.065 and 78.067, Florida Statutes (1997), the circuit court found that Brown had abandoned the property that was the subject of the replevin action and dismissed the case. Because the purpose of the hearing was limited to a determination of which party was entitled to the possession of the claimed property pending a final hearing on the merits, the circuit court erred in making a final adjudication of the claims of the parties at the hearing. Accordingly, we reverse the order of dismissal and remand the case for further proceedings.

Facts and Procedural History

Brown’s complaint for replevin sought to recover possession from Raymond and Frank of personal property listed on a schedule attached to the complaint, including household furniture and furnishings, appliances, clothing, jewelry, toys and games, tools, sporting equipment, three dirt bikes, and a 1987 Nissan Pulsar automobile. Brown estimated the total value of the personal property claimed at $60,000. Beginning April 1, 1997, Brown had leased from Raymond for a term of eight months a furnished residence located in Madeira Beach, Pinellas County, Florida. On or about July 1, 1997, Brown, accompanied by his girlfriend and his three sons, had traveled from Madeira Beach to Texas. On their return trip to Florida, Brown was arrested in Pensacola on July 16, 1997. Brown has apparently been incarcerated continuously since his arrest. He was an inmate of the state prison system during the pendency of the proceedings in the circuit court. Brown alleged that after his arrest and incarceration, Raymond and Frank had refused a demand to permit Brown’s agents to remove his personal property from the resi-deñce in Madeira Beach and -wrongfully detained the property from him.

Raymond and Frank are brothers. Raymond, the owner of an interest in the residence, appears to reside for all or a substantial portion of the year in Minnesota. Insofar as the record reveals, Raymond was never served with process, and he did not file an appearance in the proceedings in the circuit court. Frank resides in Madeira Beach, and he became involved with the residence owned by Raymond following Brown’s failure to return to the property subsequent to his arrest in Pensacola.

Frank was served with process, and he filed a response to the replevin complaint in the form of a letter addressed to the clerk of the circuit court. Frank alleged that Brown had abandoned the premises. Frank alleged further that he was called to the residence on July 21, 1997. Two women were there with a large U-Haul truck. A Pinellas County sheriffs deputy was also present. (In a subsequent letter to the court, Frank said that one of the two women identified herself as Brown’s girlfriend.) Frank told the two women “to take everything” so that he could clean the house and arrange to have it re-rented. According to Frank, the two women “left nothing of value.” He alleged that the sheriffs department removed the 1987 Nissan that had been left in the driveway. Frank also alleged that Brown had abandoned the premises, leaving a “trashy, filthy, dirty mess.”

Frank conceded that he had stored the three dirt bikes that had been left in the garage. After waiting twenty-nine months, he sold them for parts. Frank also filed an affidavit made by Gary L. Reynolds, Raymond’s son. In his affidavit, Gary said he had removed twenty to thirty shirts and T-shirts that had been left in the master bedroom closet at the residence. Some of the shirts were given to a family member; the rest were donated to a charity.

After receiving Frank’s response, Brown filed a motion for leave to amend his complaint and a proposed amended complaint for damages. In the proposed amended complaint, Brown alleged that Raymond and Frank had “in bad faith unlawfully retained, destroyed, disposed, concealed, or otherwise plaintiffs property as listed in the motion for writ of replevin [sic].” In his proposed amended complaint, Brown sought damages of $60,000 against Raymond and Frank.

On March 11, 2002, Brown filed a motion pursuant to sections 78.065 and 78.067 requesting the entry of a writ of replevin, prior to the entry of final judgment. On July 11, 2002, the circuit court sent Brown, Raymond, and Frank a notice of hearing scheduling a thirty-minute hearing for August 21, 2002, on “Plaintiffs Motion for Hearing and/or Show Cause Order.” By a separate order, the circuit court made arrangements for Brown to appear at the hearing by telephone. As authorized by section 78.067(2), both Brown and Frank filed affidavits and “other showings” for the consideration of the court at the hearing.

Apparently, the hearing held on August 21, 2002, was not reported by a court reporter. After the date of the hearing, but before the written order of dismissal was entered, Brown filed a motion for rehearing and again- requested leave to amend his complaint. On September 18, 2002, the circuit court entered an order finding that Brown had “abandoned the personal property that is the subject matter- of this cause.” In its order, the circuit court dismissed Brown’s replevin action, denied the motion for rehearing, and denied the request for leave to amend. This appeal followed.

Replevin

Section 78.01 provides in pertinent part:

Any person whose personal property is wrongfully detained by any other person or officer may have a writ of replev-in to recover said personal property and any damages sustained by reason of the wrongful taking or detention as herein provided.

The essence of an action of replevin is the. “unlawful detention of personal property from plaintiff at the commencement of the action, regardless of whether defendant acquired possession rightfully or. wrongfully.” Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd., 450 So.2d 1157, 1161 n. 5 (Fla. 3d DCA 1984) (quoting Pavlis v. Atlas-Imperial Diesel Engine Co., 121 Fla. 185, 163 So. 515, 516 (1935)). Replev-in is a recognized remedy when a landlord unlawfully withholds possession of the tenant’s personal property. Seymour v. Adams, 638 So.2d 1044, 1049 (Fla. 5th DCA 1994). Therefore, assuming the truth of the allegations of Brown’s complaint, he pursued an appropriate remedy in the circuit court.

An action for replevin is a civil action, and the Florida Rules of Civil Procedure apply. See Fla. R. Civ. P. 1.010; Traces Fashion Group, Inc., v. C & C Mgmt., Inc., 763 So.2d 502, 503 (Fla. 3d DCA 2000); Weigh Less for Life, Inc., v. Barnett Bank of Orange Park, 399 So.2d 88, 90 (Fla. 1st DCA 1981). At the conclusion of an action for replevin where the defendant has retained possession of the property during the pendency of the litigation, a plaintiff who prevails on the merits is entitled to a final judgment for the recovery of the property or its value, or the value of the plaintiffs lien or special interest. § 78.19; see Fla. R. Civ. P. Form 1.995(b). The plaintiff who prevails is also entitled to damages sustained as a result of the wrongful taking or detention. See § 78.01; McMurrain v. Fason, 584 So.2d 1027, 1030 (Fla. 1st DCA 1991).

However, a plaintiff in a replevin action may elect to seek a writ of replevin prior to the entry of final judgment in order to obtain possession of the property during the pendency of the replevin action and until the parties’ claims are finally adjudicated. Chapter 78 of the Florida Statutes provides two separate and distinct methods of obtaining a writ of replev-in prior to the entry of final judgment in the replevin action. Pursuant to' sections 78.065 and 78.067, and in the absence of an effective waiver, the defendant must be given notice and a show cause hearing held before the writ of replevin may issue prior to the entry of final judgment. Pursuant to section 78.068, the prejudgment writ may issue without notice and a hearing, but the plaintiff must post a bond. See Prestige Rent-A-Car, Inc. v. Advantage Car Rental & Sales, Inc. (ACRS), 656 So.2d 541, 545 (Fla. 5th DCA 1995); Comcoa, Inc. v. Coe, 587 So.2d 474, 476-77 (Fla. 3d DCA 1991). In a case where the plaintiff has recovered possession of the property prior to the entry of final judgment, the plaintiff who prevails on the merits is entitled to a final judgment declaring the plaintiffs right to retain possession of the property plus damages sustained as a result of the wrongful taking or detention. § 78.18; see Fla. R. Civ. P. Form 1.995(a); HEG, Inc. v. Bay Bank & Trust Co., 591 So.2d 1011 (Fla. 1st DCA 1991).

The Hearing in this Case

In this case, Brown filed a “Motion for Hearing and/or Show Cause Order” and invoked sections 78.065 and 78.067, which provided for issuance of a writ of replevin prior to the entry of final judgment but after notice and a hearing. Brown asserted in his motion that Frank had procedurally defaulted and that an order to show cause should issue. Brown’s motion reflects confusion about the operation of sections 78.065 and 78.067. On the one hand, Brown asked the circuit court to enter an order to show cause, which necessarily must precede a hearing on an order to show cause. On the other hand, Brown requested “a hearing on the order to show cause” as if such an order had already been entered. Nevertheless, because Brown specifically referenced an “order to show cause” as provided for in sections 78.065 and 78.067, Brown’s motion cannot be construed as a request by him for a final adjudication on the merits of his claim. As framed by Brown’s motion, the scope of the hearing he requested was limited to whether a show cause order should issue or whether Brown was entitled to a writ of replevin prior to final judgment pursuant to the procedure he had invoked. The notice of hearing, which was prepared by the circuit court, was similarly limited in scope. It simply said that the court “will call up for hearing the Plaintiffs Motion for Hearing and/or Show Cause Order.” That both parties understood the limited purpose of the hearing is suggested by their filing of affidavits and “other showings” for the consideration of the court as specifically authorized by section 78.067(2),

Brown has not furnished us with either a transcript of the hearing or a statement of the evidence or proceedings as provided for in Florida Rule of Appellate Procedure 9.200(b)(4). After the hearing was concluded, the circuit court entered an order finding that Brown had abandoned the personal property at issue and dismissing the action. A finding of abandonment would defeat Brown’s claim of a right to immediate possession, of the property. At common law, abandoned property was defined as “that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting ownership in any other person, and with the intention of not reclaiming any future rights therein.” State v. Green, 456 So.2d 1309, 1311 (Fla. 3d DCA 1984) (quoting Campbell v. Cochran, 416 A.2d 211, 221 (Del.Super.Ct.1980)). Abandonment is a question of intent, and the burden of proving it is on the person asserting it. Dade County v. City of N. Miami Beach, 69 So.2d 780, 783 (Fla.1953); J.C. Vereen & Sons, Inc. v. City of Miami, 397 So.2d 979, 981 (Fla. 3d DCA 1981). As a question of intent, abandonment is normally a question of fact for the trier of fact to determine. Jewett v. Leisinger, 655 So.2d 1210, 1213 (Fla. 4th DCA 1995). In the absence of a transcript or an acceptable substitute, we must affirm the order on appeal to the extent that it denied Brown’s request for the trial court to enter an order to show cause or to issue a writ of replevin prior to the entry of final judgment. We affirm the circuit court on this point because the record presented to us by Brown is inadequate to demonstrate reversible error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Pignataro v. Rutledge, 841 So.2d 636, 637-38 (Fla. 2d DCA 2003). However, the circuit court’s dismissal of the action on the merits stands on a different footing. We now turn our attention to this aspect of the case.

The Prematurity of Dismissal on the Merits

At a hearing on an order to show cause, the court is directed by section 78.067(2) to “make a determination of which party, with reasonable probability, is entitled to the possession of the claimed property pending final adjudication of the claims of the parties.” This determination is to be based on the “probable validity” of the plaintiffs claim against the defendant and is preliminary to a final adjudication of the claims of the parties. JB Int’l, Inc. v. Mega Flight, Inc., 840 So.2d 1147, 1149 (Fla. 5th DCA 2003). If the plaintiff fails to establish the probable validity of the replevin claim at the hearing on the order to show cause held pursuant to section 78.067, dismissal of the complaint after the hearing is premature because the purpose of the hearing is only to determine who should have possession of the claimed property pending the final hearing. Gill v. Shively, 320 So.2d 415, 416 (Fla. 4th DCA 1975). Although the trial court may consider the merits of the plaintiffs claim insofar as may be necessary to a determination of whether the writ should issue prior to final judgment, “the trial court’s ruling has no bearing on the rights of the parties when the matter is tried on the merits, nor does it bind the court at the final hearing or preclude a subsequent final adjudication dissolving the writ and ordering the return of the property.” JB Int’l, Inc., 840 So.2d at 1150.

Whatever the result of the hearing on the order to show cause, the case proceeds as any other civil action would, and the trial court must still make a final adjudication of the claims of the parties in accordance with the Florida Rules of Civil Procedure. See Traces Fashion Group, 763 So.2d at 503; McMurrain, 584 So.2d at 1032; Weigh Less for Life, 399 So.2d at 90; see generally Henry P. Trawick, Jr., Florida Practice and Procedure § 34-4 (2003 ed.) Accordingly, the dismissal of Brown’s action after the hearing was premature. See JB Int’l, Inc., 840 So.2d at 1150; Gill, 320 So.2d at 416. The circuit court’s order must be reversed to the extent that it dismissed Brown’s action on the merits.

The Applicability of Florida Rule of Civil Procedure 1.110

Actions for replevin are governed by the Florida Rules of Civil Procedure. Traces Fashion Group, 763 So.2d at 503; Weigh Less for Life, 399 So.2d at 90; see also Henry P. Trawick, Jr., Florida Practice and Procedure § 34-4 (2003 ed.). Therefore, the trial court must comply with the provisions of rule 1.440 in setting a replevin action for trial.

Rule 1.440 provides, in pertinent part:

(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the service of the notice for trial. By giving the same notice the court may set an action for trial. In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080(a).

The rule is designed to safeguard the parties’ right to procedural due process. Parrish v. Dougherty, 505 So.2d 646, 648 (Fla. 1st DCA 1987). Noncompliance with the rule may violate a party’s due process rights. See Skyway Trap & Sheet Club, Inc. v. Southwest Fla. Water Mgmt. Dist., 854 So.2d 676, 680 (Fla. 2d DCA 2003); Heritage Casket & Vault Ind., Inc. v. Sunshine Bank, 428 So.2d 341 (Fla. 1st DCA 1983). Thus strict compliance with the rule is mandatory. See Broussard v. Broussard, 506 So.2d 463 (Fla. 2d DCA 1987); Ramos v. Menks, 509 So.2d 1123 (Fla. 1st DCA 1986).

The notice given by the circuit court in this case scheduled a thirty-minute hearing on “Plaintiffs Motion for Hearing and/or Show Cause Order.” This notice did not comply with the requirements of rule 1.440(c) concerning setting cases for trial because it did not inform the parties that the circuit court intended to make a final adjudication of their claims at the scheduled hearing. See Amber Reinforcing, Inc. v. Hubbard Constr. Co., 801 So.2d 314, 315 (Fla. 1st DCA 2001); Int’l Jai-Alai Players Ass’n v. Dania Jai-Alai Div. of the Aragon Group, Inc., 563 So.2d 1117, 1119 (Fla. 4th DCA 1990). The circuit court’s noncompliance with the requirements of rule 1.440(c) is a separate ground requiring reversal of the order to the extent that the order dismissed the action.

The Motion to Amend

The facts disclosed by Frank in his submissions to the circuit court concerning the sale of the' dirt bikes and the disposition of the articles of clothing suggested that Brown may have a colorable claim for conversion. See Seymour, 638 So.2d at 1047-48; Cutler v. Pelletier, 507 So.2d 676 (Fla. 4th DCA 1987). This case had not been set for trial, and Brown had not abused the privilege of amendment. Under the circumstances, the circuit court abused its discretion in denying Brown’s motion to amend his complaint to make a claim for damages. See Myers v. Miller, 581 So.2d 904, 906 (Fla. 2d DCA 1991); Sarasota Commercial Refrigeration & Air Conditioning, Inc. v. Schooley, 381 So.2d 1141, 1144 (Fla. 2d DCA 1980); Morgran Co. v. Orange County, 818 So.2d 640, 644-45 (Fla. 5th DCA 2002).

Conclusion

The circuit court’s order disregarded several procedural requirements. The observation made by Judge Silberman for this court in another replevin case is equally applicable here: “It is evident that the circuit court was attempting to get this matter resolved expeditiously and on the merits; however, the procedures which were applied were faulty.” Al-Hakim v. Holder, 787 So.2d 939, 941 (Fla. 2d DCA 2001).

We affirm the circuit court’s order to the extent that it denied 'Brown’s request for the issuance of a writ of replevin prior to the entry of final judgment. We reverse the dismissal of the action. On remand, the circuit court shall enter an order granting Brown leave to amend his complaint. Our disposition of this case is made on procedural grounds only. We express no opinion on the merits of the parties’ claims.

Affirmed in part, reversed in part, and remanded for further proceedings.

SALCINES and STRINGER, JJ., Concur.

      . Neither Brown nor Frank was represented by counsel in the action.

      . For further information on obtaining a writ of replevin prior to the final adjudication of the claims of the parties, see generally Patrick C. Barthet & Daniel Morman, Obtaining a Replevin Writ Prior to Final Judgment, 76 Fla. B.J. 44 (Dec.2002); Philip A. Bates, Enforcement of Secured Claims in Creditors' and Debtors’ Practice in Florida, §§ 3.28-.29 (Fla. Bar CLE 2003); Flenry P. Trawick, Jr., Florida Practice and Procedure § 34-2 (2003 ed.).

      . A similar rule applies in the analogous situation where a prejudgment writ of replevin has been issued without notice pursuant to section 78.068. If the writ is dissolved following the failure of the plaintiff to prove by competent and substantial evidence at a hearing on a motion to dissolve the writ the grounds upon which the writ was issued, dissolution of the writ on motion "has no effect other than to determine the right to possession of the property pending final adjudication of the claims of the parties.” "Weigh Less for Life, 399 So.2d at 90; see also Kalman v.. 'World Omni Fin. Corp., 651 So.2d 1249, 1252 (Fla. 2d DCA 1995). The entry of an order dissolving the prejudgment writ of replevin on the defendant’s motion "cannot be considered as depriving the plaintiff of the right to a trial under the rules of procedure applicable to other law actions generally, which includes the right to a jury trial.” Weigh Less for Life, 399 So.2d at 90.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Jamie J. GRAVES, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-3382.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.
    Julianne M. Holt, Public Defender, and Theda R. James, Assistant Public Defender, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

This is an appeal from an order holding Jamie J. Graves in contempt for violation of an injunction for protection against domestic violence. Upon review of the record, we hold that the evidence was sufficient for the trial court to find beyond a reasonable doubt that Mr. Graves violated the domestic violence injunction and to find him in indirect criminal contempt. See Bowen v. Bowen, 471 So.2d 1274 (Fla.1985); Shields v. Shields, 636 So.2d 169 (Fla. 2d DCA 1994).

Unfortunately, however, once the finding of contempt was made, a series of clerical mistakes occurred before rendition of the final order in this case, which is titled “Order Adjudging Contempt” and which orders and adjudges that Mr. Graves is guilty of “direct criminal contempt” of the injunction for protection against domestic violence. A prior written order held Mr. Graves in “indirect civil contempt.” These orders were issued following a hearing at which the judge made the following oral pronouncement: “The Court does find that based on the testimony the respondent is in contempt, in direct criminal contempt.”

Our examination of the entire record has convinced us that the court reporter mistakenly transcribed the judge’s oral pronouncement, which was intended to clarify that the nature of the contempt was “indirect criminal contempt.” This is particularly apparent from Mr. Graves’s motion for rehearing, which reveals that he was aware that the trial court had adjudged him guilty of indirect criminal contempt. The State has contended that the written orders contain scriveners’ errors, and we agree with that position. A similar situation occurred in Dorival v. State, 768 So.2d 1233, 1233 (Fla. 3d DCA 2000), where the court held that “there was a scrivener’s error in the written judgment which stated that the defendant was found guilty of direct criminal contempt rather than indirect criminal contempt.” As in Dorival, we affirm the judgment but remand to the trial court to correct the error.

Affirmed but remanded for correction of scrivener’s error.

STRINGER and WALLACE, JJ., Concur.


text:
    Robert W. CLEARY, Appellant/Cross-Appellee, v. Maria Tereza De Castelo Branco Ferreira CLEARY, a/k/a M. Tereza Cleary, Appellee/Cross-Appellant.
    No. 2D02-3985.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      Mary A. Swayze and Maury R. dicker of Akerman Senterfitt, Miami, and Sarah Dennis of Akerman Senterfitt, Tampa, for Appellant/Cross-Appellee.
    Arnold D. Levine and Robert H. Mackenzie of Levine, Hirsch, Segall, Mackenzie & Friedsam, P.A., Tampa, for Ap-pellee/Cross-Appellant.
   WALLACE, Judge.

Robert W. Cleary (the Husband) appeals the amended final judgment dissolving his marriage to M. Tereza Cleary (the Wife), asserting that the trial court abused its discretion in its equitable distribution of the parties’ marital property and its determination of child custody, child support, alimony, and attorney’s fees. On her cross-appeal, the Wife argues that the trial court erred by imputing future income to her as part of its determination of the amount of alimony awarded to her. We affirm the judgment in part and reverse in part. On remand, the trial court shall adjust the award of retroactive alimony and the plan of equitable distribution in a manner consistent with this opinion. -

Child Custody

The Husband argues that the trial court erred in awarding primary residential responsibility for the parties’ two children to the Wife because the evidence at trial demonstrated that the Wife is a less fit parent than the Husband. It is established law that a trial court has broad discretion in child custody matters. Canakaris v. Canakaris, 882 So.2d 1197, 1202 (Fla.1980). Despite a conflict in the evidence, a trial court’s custody decision will not be disturbed unless there is no substantial, competent evidence to support that decision. Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998).

The Husband has not met this burden. The record reflects that the trial court considered the best interests of the children as required under section 61.13, Florida Statutes (1997). Although there is a conflict in the evidence as to which party is the more fit parent, competent evidence supports- the trial court’s finding in favor of the Wife. Because the trial court’s finding is supported by competent, substantial evidence, the trial court did not abuse its discretion in awarding primary residential responsibility for the children to the Wife. Therefore, we affirm the custody award.

The Equitable Distribution

In the final judgment of dissolution of marriage, the trial court found that the parties’ 1996 and 1997 federal income tax overpayments were marital assets subject to equitable distribution and that these assets totaled $310,577. After concluding that the Husband received all of the benefit of these assets, the court ordered him to pay to the Wife the sum of $155,288.50 plus interest, an amount equal to one-half of the total overpayments. On appeal, the Husband argues that the trial court incorrectly calculated the total amount of the overpayments and that these were not assets subject to equitable distribution because they had been spent by the parties during the course of the marital litigation that spanned five years.

When a trial court makes an equitable distribution award, it must provide specific factual findings that identify and distinguish the marital assets from the non-marital assets. See § 61.075(3) (requiring that “any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence”); see also Staton v. Staton, 710 So.2d 744 (Fla. 2d DCA 1998). However, before a trial court can make these determinations, it must establish a cut-off date, in accordance with section 61.075(6), for determining whether assets and liabilities should be classified as marital. See § 61.075(6) (stating that the cut-off date “is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage”). Moreover, a trial court must also select a valuation date for the marital assets pursuant to section 61.075(6), which provides that the date for determining the value of the marital assets “is the date or dates as the judge determines is just and equitable under the circumstances.”

In the present ease, the trial court did not select a cut-off date to determine which of the parties’ assets should be classified as marital, nor did it select a valuation date for determining the value of the marital assets. Because the trial court did not establish these dates, this court is unable to review the trial court’s determination that the federal income tax over-payments are marital assets or the value assigned to these assets. Nevertheless, we note that the Husband’s argument that the trial court miscalculated the aggregate amount of the two income tax overpay-ments appears to have merit.

In reaching the conclusion that the federal income tax overpayments totaled $310,577, the trial court based its calculation on evidence submitted by the Wife that there was a 1996 income tax overpayment of $202,782 and a 1997 income tax overpayment of $107,795. However, this evidence overlooks the fact that a portion of the parties’ overpayment for the 1996 tax year, to wit $139,720, was applied to the parties’ 1997 income tax obligation. After considering the application of $139,720 to the parties’ 1997 income tax obligation, the largest amount of the tax overpayments that could have been a marital asset was $180,843, comprised of a $65,118 cash refund from the 1996 overpayment, a $7930 cash refund from the 1997 overpayment, and the application of the remaining $107,795 of the 1997 overpayment to the Husband’s 1998 income tax obligation.

The trial court’s plan of equitable distribution also includes a surcharge to the Wife for her use of nonmarital assets. During the proceedings, she withdrew $68,000 from the Husband’s corporate bank account. The trial court found that a portion of these monies, approximately $27,744, was- used to pay the Wife’s living expenses prior to the time she began to receive support from the Husband. Therefore, the trial court only surcharged the Wife the portion of the $68,000 she had not used for living expenses, to wit, $40,256. However, the Husband contends that this amount was a miscalculation of the amount the Wife was entitled to use as living expenses and that the Wife should have been surcharged $44,548.39.

Neither the record nor the trial court’s final judgment offers a justification to support the trial court’s calculation of the amount to surcharge the Wife. Instead, the record suggests that the Husband’s mathematical calculations are correct. Because the trial court’s conclusion is not supported by competent, substantial evidence, this portion of the equitable distribution is also flawed.

Therefore, we reverse the portion of the final judgment concerning the equitable distribution. On remand, pursuant to section 61.075(6), the trial court must establish a cut-off date for determining which assets should be classified as marital and must select a valuation date for determining the value of the marital assets. After making specific findings of fact and conclusions of law, the trial court must calculate the portions of the income tax overpay-ments that are marital assets and the portion of the marital assets to which the Wife is entitled. With regard to the amount of the surcharge to the Wife for her expenditure of nonmarital assets during the course of the dissolution proceedings, the trial court may adopt the Husband’s calculations and surcharge the Wife the amount of $44,548.30. In the alternative, the trial court may recalculate the amount of the surcharge to the Wife and justify its determination of the surcharge amount with specific findings of fact in compliance with section 61.075(3). On remand, the trial court may take additional evidence on both of the above matters to make findings to support its determinations. After making the necessary findings, the trial court shall revisit the issue of the equitable distribution of the marital assets.

Retroactive Alimony

For the period from October 1997 through March 21, 2002, the date of the final judgment, the trial court awarded the Wife retroactive alimony in the sum of $67,392. The Husband asserts that the record does not support the trial court’s finding that the Wife’s need for support was in excess of the temporary alimony she received during the pendency of the proceedings. We disagree.

A trial court may award retroactive alimony when appropriate. See Askegard v. Askegard, 584 So.2d 47 (Fla. 1st DCA 1991); Wright v. Wright, 411 So.2d 1334 (Fla. 4th DCA 1982). When this type of alimony is granted to a party, an appellate court will not disturb the trial court’s ruling absent an abuse of discretion. Canakaris, 382 So.2d at 1202-03. Finding no such abuse, we affirm the portion of the trial court’s order awarding the Wife retroactive alimony.

Additionally, when the trial court awarded the Wife retroactive alimony, it also awarded her interest of $15,528.44 for the fifty-four months comprising the period of the retroactive alimony award. After giving the Husband credit for the $40,256 that the court determined should be surcharged to the Wife, the court concluded that the Husband was required to pay the Wife $42,664.44, plus per diem interest of $16.62, within thirty days from the entry of the final judgment. The Husband argues that the proper amount of interest the court should have awarded the Wife was $10,990.08 based on the figures the court determined for the retroactive alimony and the Wife’s surcharge.

We agree that the trial court’s calculation of the interest on the retroactive alimony is incorrect. Thus we reverse the portion of the final judgment determining the amount of interest the Husband is to pay the Wife on the retroactive alimony award. On remand, the trial court should recalculate this amount. In doing so, the trial court should take into consideration any adjustments it makes on remand to the amount that it surcharges the Wife for her use of nonmarital assets, as well as the fact that the Wife owed the entire amount of her surcharge for the entire pendency of the case, while the amount of retroactive alimony began at zero and increased monthly over the fifty-four-month period. Additionally, any interest the Husband owes should be based on the net amount of retroactive alimony he owes after being credited with the Wife’s surcharge and not on the gross amount of retroactive alimony awarded.

Alimony

In Canakms, the Florida Supreme Court established the framework a trial court must use in awarding permanent alimony. “The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.” Canakaris, 382 So.2d at 1201. However, a trial court must be careful that “neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be ‘shortchanged.’ ” Id. at 1204. The Husband-in the present case argues that he does not have the ability to pay the court-ordered payments, that if he is required to do so he will experience a net cash deficit, and that the amount of alimony he has been ordered to pay is not supported by the evidence. We disagree.

The evidence supports the trial court’s conclusion that the Husband has the ability to pay the monthly alimony award. According to the Husband’s certified public accountant, the Husband’s lowest annual income during the seven years prior to the divorce was $299,548, his gross earnings for 2000. Using the 2000 figure, the trial court determined that the Husband earned $24,692 each month before taxes and $19,641 after taxes. The court awarded the Wife $6331.33 monthly as permanent alimony and $2916.67 monthly as rehabilitative alimony for two years, or a total of $9248 monthly until the rehabilitative period expires: The Husband was also required to pay $1666 per month child support and an additional $825 per month for the children’s private school tuition. After paying the total monthly alimony payment, child support, and private school tuition, the Husband still has $7902 to meet his monthly needs. Based upon the Husband’s income, this is not a case in which the Husband will pass from comfort to poverty or from “prosperity to misfortune” by making the court-ordered alimony payments. Thus the trial court acted within its discretion in ordering the Husband to make alimony payments in the amount awarded to the Wife.

Private School

Finding that both children have historically attended private schools, the trial court’s final judgment ordered the Husband to pay all of the private school tuition for each child until that child reaches the age of majority. Arguing that he should not have to bear these costs, the Husband cites Bell v. Bell, 811 So.2d 833 (Fla. 2d DCA 2002), in support. In that case, this court said:

A parent cannot be required to contribute to a child’s private schooling expenses unless the trial court makes three factual findings: “(1) the parties have the ability to pay such expenses, (2) the expenses are in accordance with the customary standard of living of the parties, and (3) attendance at private school is in the child’s best interest.” Musser v. Watkins, 752 So.2d 141, 142 (Fla. 2d DCA 2000). There was no evidence adduced to support all three requirements for either child. Because the required evidence and findings were lacking, we strike the provision requiring the parties to pay for private school expenses for the children.

Id. at 834 (footnote omitted). However, the present case is distinguishable from Bell. Unlike the children in Bell, the children in this case attended private school prior to and throughout the entire dissolution proceedings. The Husband’s average income in the years preceding the final hearing exceeded $300,000 annually. Therefore, his ability to pay the children’s private school tuition was never in doubt. Moreover, the two children had always attended private school. Thus the private school expenses were consistent with the standard of living which the parties had established. Finally, both of the parties assumed throughout the dissolution proceedings that the children would continue to attend private school upon the dissolution of their marriage. The record reveals that all three of .the Bell requirements have been met; therefore, we affirm the portion of the final judgment requiring the Husband to pay the children’s private school tuition.

Attorney’s Fees

The trial court’s final judgment awarding the Wife attorney’s fees is affirmed because the award is in compliance with section 61.16, Florida Statutes (1997).

The Oral Pronouncement

The Husband also argues that the final judgment should be reversed because the written judgment is materially different from the trial judge’s oral pronouncement of her ruling. After carefully reviewing the trial judge’s oral pronouncement of her ruling and the final written judgment, we have determined that, with one exception, there were no material differences. The only instance in which the trial judge’s oral pronouncement differed from the final judgment is in the discussion of the amount of retroactive alimony to be awarded. During the course of her oral ruling, the trial judge set forth the elements to be used in calculating the retroactive alimony and announced the total amount of that award. Using the elements upon which the retroactive, alimony award was based, there was an error in the trial judge’s ' computation of the amount of the retroactive alimony award as announced in her oral ruling. In the final judgment that'was entered subsequently, the trial judge corrected her mathematical error. This was entirely appropriate. We find that this is not a material difference between the oral pronouncement and the final judgment that would warrant reversal as in Leonard v. Leonard, 613 So.2d 1339 (Fla. 3d DCA 1993), and Gallardo v. Gallardo, 593 So.2d 522 (Fla. 3d DCA 1991).

Cross-Appeal

The Wife contends that the trial court erred by imputing future income to her. In the section of the final judgment on the determination of alimony, the court said that it “imputed income that Mrs. Cleary could earn at the end of two years in the amount of $35,000.00 as her annual income.” The amended final judgment further provided:

[IJncome in the amount of $35,000 shall be imputed to the Wife at the end of the two year period whether or not she is, in fact, working. The imputation of income in the amount of $35,000 shall take effect at the end of the two year period set forth in the Final Judgment and the Husband’s monthly alimony obligation to the Wife shall automatically be decreased at that time in the amount of $2,917 per month.

The Wife contends that the trial court erred by imputing income to her based on speculation about her future earnings.

In the case of Cushman v. Cushman, 585 So.2d 485, 486 (Fla. 2d DCA 1991) (citations omitted), this court summarized the principles of imputing income:

A court may impute income to a party who has no income or is earning less than is available to him based upon a showing that the party has the capability to earn more by the use of his best efforts. This determination of earning capacity versus actual earnings assumes the party to whom the income is imputed has chosen to earn less and has the ability to remedy the situation. Before imputing income, the court must determine whether the individual’s underemployment resulted through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. The court must consider not only recent work history but also occupational qualifications and prevailing earnings. -

We think the trial court’s reference to imputing income in the final judgment and the amended final judgment was either inadvertent or inexact. The statement occurs in the context of the award of rehabilitative alimony to the Wife and recognizes that such alimony will end at the conclusion of the rehabilitation period. Thus we conclude that the trial court did not impute income to the Wife but, instead, determined her ability to assist in her own support after a period of rehabilitation.

In the final judgment, the court awarded the Wife $9428 per month as permanent arid rehabilitative alimony and stated: “The Court has determined that Mrs. Cleary could earn $35,000.00 annually starting two years from the date of entry hereof, accordingly, that portion of the $9,428.00 per month represented by the rehabilitative award, namely, $2,916.67, shall be paid by Mr. Cleary for a period of two years.... ” The Wife argues that the rehabilitative portion of the alimony award should be reversed for the entry of an award that includes only permanent alimony. In support, she asserts that the Husband presented no evidence that she could be rehabilitated. We disagree.

It is clearly established that the propriety of an award of rehabilitative alimony is within the scope of the trial court’s broad discretion in dissolution proceedings. Canakaris, 382 So.2d at 1202. There is evidence in the record from which the trial court could have concluded that with some training, the Wife could be rehabilitated so that she could partially support herself. At the time of the final hearing, .the Wife was forty-four years old and in good health. She has a master’s degree in hydrology. The trial court found that with some additional courses and retraining, the Wife could return to work in that field and contribute to her own support. Because the trial court’s finding is supported by the evidence, the judgment including rehabilitative alimony for two years as part of the award was not an abuse of discretion. Thus the award of rehabilitative alimony is affirmed.

In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded with directions.

CASANUEVA and SALCINES, JJ., concur.

      . The Husband acknowledges that $9000 of the $68,000 the Wife withdrew were marital assets, and therefore the amount of nonmari-tal assets totaled $59,000. Of the $59,000, the Husband argues that the Wife is only entitled to keep $14,451.61, resulting in a surcharge of $44,548.39 ($59,000-$14,451.61 = $44,548.39). The Husband derives the $14,451.61 figure by calculating the amount of temporary alimony at the court-ordered, prejudgment monthly rate of $8000 for the one month and twenty-five day period that preceded the commencement of the Husband’s temporary alimony payments (i.e., $8000 x 1 month, 25 days = $14,451.61).

      . If the court credited the Husband with the disputed $40,256 surcharge against the retroactive alimony of $67,392, the Husband still owed the Wife $27,136. The interest on $27,136 at nine percent per annum for fifty-four months is $10,990.08.

      . Of course, there was no agreement between the parties addressing the issue of the rate of interest to be paid on any award of retroactive alimony. Therefore, pursuant to section 687.01, Florida Statutes (2002), the applicable rate of interest is the rate provided in section 55.03, Florida Statutes (2002).

      . In 1997, the Husband began to report his income individually. In 1997, his reported gross income was $319,397; in 1998, it was ' $347,576; and in 1999, it was $400,239.

      . In an amended final judgment, the trial court also ordered the Wife to pay the children's private school expenses that she had customarily paid including, but not limited to, books, uniforms, and school trips.


author: WHATLEY, Judge.

text:
    Richard N. CORPSTEIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4845.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.
    Victoria L. Bloomer of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

Richard N. Corpstein appeals his conviction for conspiracy to traffic in cocaine. We affirm the denial of his motion to suppress without discussion; however, we reverse his conviction and remand for a new trial because the trial court erred in refusing to instruct the jury on a lesser included offense.

Corpstein was charged with conspiracy to traffic in twenty-eight grams or more but less than 200 grams of cocaine. § 893.135(l)(b)(1)(a), Fla. Stat. (2001). At the charge conference, Corpstein asked the court to instruct the jury on the offense of conspiracy to deliver cocaine. § 893.13(1)(a)(1), Fla. Stat. (2001). This statute provides that it is unlawful for any person to sell, manufacture, or deliver cocaine, but it does not contain an element requiring a specific quantity of cocaine. Id. The trial court denied the requested instruction.

In State v. Weller, 590 So.2d 923, 926 (Fla.1991), the Florida Supreme Court noted that “an instruction on conspiracy to deliver cocaine is not automatically required as a lesser included offense of conspiracy to traffic in cocaine.” The supreme court held that the instruction must be given if the elements of delivery are alleged in the information and the evidence at trial supports the charge. Id.; see also Hettick v. State, 637 So.2d 964 (Fla. 2d DCA 1994).

In the present case, the elements of delivery were alleged in the amended information. However, the State argues that the evidence clearly showed that Corpstein delivered more than twenty-eight grams of cocaine, and therefore, the evidence did not support an instruction of conspiracy to deliver cocaine. We do not find merit in this argument because there is no element requiring a specific amount of cocaine under section 893.13(l)(a)(l), and therefore, the delivery of any amount of cocaine would be a violation of the statute.

In Amado v. State, 585 So.2d 282, 283 (Fla.1991), the Florida Supreme Court held that even if the evidence is “overwhelming that the amount of drugs involved in this transaction exceeded twenty-eight grams [this] does not preclude giving the instruction upon request” because juries are permitted to convict on lesser offenses if they choose to exercise their power to pardon. See Belser v. State, 854 So.2d 223, 224 (Fla. 1st DCA 2003) (concluding that even where “the weight of the evidence is overwhelming in favor of the state’s charge, the defendant is entitled to an instruction on a lesser offense where the charging document and the evidence adduced at trial could support a conviction for the lesser offense”).

Accordingly, we reverse Corpstein’s conviction for conspiracy to traffic in cocaine and remand for a new trial.

Reversed and remanded.

COVINGTON and VILLANTI, JJ, Concur.

      . A violation of section 893.135(l)(b)(l)(a), conspiracy to traffic in twenty-eight grams or more but less than 200 grams of cocaine, carries a mandatory minimum term of three years in prison and a $50,000 fine. A violation of section 893.13(l)(a)(l) does not mandate these two penalties.


author: VILLANTI, Judge.

text:
    Ronald Lee MATTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-906.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      Corinda Luchetta, St. Petersburg, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Ronald Lee Matton challenges the denial of his motion for postconviction relief after an evidentiary hearing. In his motion, Matton contended that he should be allowed to withdraw his admission to a violation of probation because his counsel was ineffective for failing to advise him that he was entitled to credit for his previously accrued gain time and thus he agreed to a specific sentence without full knowledge of his rights. Matton also contended that his counsel was ineffective for failing to challenge victim injury points that were included on his sentencing guidelines scoresheet. Because the State did not refute Matton’s testimony on either issue at the evidentiary hearing, we reverse and remand to allow Matton the opportunity to withdraw his plea.

In October 1989, Matton pleaded guilty to one count of sexual battery and one count of kidnaping for offenses which occurred on November 17, 1988. He was sentenced to twenty years’ incarceration on the sexual battery count followed by ten years’ probation on both the sexual battery count and the kidnaping count. The sentencing guidelines scoresheet prepared by the State for the original sentencing hearing included forty points for victim injury based on penetration during the sexual battery.

Matton was incarcerated for approximately nine years and was released to serve his probationary sentence in late 1997. In July 1998, he was charged with a violation of probation for changing his residence without permission. When the affidavit was filed, the trial court appointed counsel to represent Matton. Matton discussed the alleged probation violation and his sentencing guidelines scoresheet with counsel. Subsequently, Matton entered into a negotiated plea agreement with the State. As part of the negotiated plea, Matton admitted that he violated his terms of. probation, and he agreed to a sentence of nineteen years in prison with nine years’ credit for the time he had actually served on the sexual battery charge. The sentencing guidelines scoresheet used at the revocation hearing included the same forty points for victim injury, and Matton’s counsel did not challenge the inclusion of these victim injury points. At the revocation hearing, Matton admitted during his plea colloquy that no promises had been made by either the court or counsel as to how much gain time credit he would receive once he returned to prison.

Following his sentencing on the violation of probation, Matton filed a series of inmate requests and grievances with the Department of Corrections (DOC) in an attempt to determine how much gain time he had accrued during his prior incarceration. According to the DOC’s calculations, Mat-ton had earned 4289 days’ gain time credit during his prior incarceration in addition to the 3189 days’ credit for time actually served. Although the DOC recognized that Matton had previously earned both gain time and incentive credit for which he was not being credited, the DOC took the position it could not award this earned credit unless the sentencing court directed it to do so in an amended sentencing order.

Matton then filed his rule 3.850 motion in the trial court, raising several claims of ineffective assistance of counsel. In that motion, Matton alleged that his counsel in the revocation proceedings was ineffective for failing to advise him that he was legally entitled to credit for his previously accrued gain time and that by agreeing to nine years’ credit for actual time served, he was waiving his right to credit to which he was otherwise entitled. Matton also alleged that counsel was ineffective for failing to challenge the victim injury points that were included on the sentencing score-sheet during the revocation proceedings. The trial court ordered an evidentiary hearing on both grounds.

At the evidentiary hearing, Matton’s counsel testified that she believed that credit for gain time and credit for actual time served were two separate things, and she did not intend to preclude Matton’s receiving his previously accrued gain time credit if he was entitled to it. She testified that the nine years’ credit included in the plea agreement resulted from either an agreement that Matton had actually served nine years or was “a specific sentence that everyone agreed to as part of a negotiated plea.” However, she could not recall what the agreement actually was, and she could not state with any certainty whether the nine years’ credit was intended to be all the credit Matton would receive. She also testified it was not her policy to make promises regarding gain time because gain time calculations were the sole province of the DOC and that she had not discussed gain time at all with Matton. As to the victim injury points, counsel testified that she did not challenge those points because they had been on the original sentencing guidelines scoresheet and she did not believe that she could challenge them during the revocation proceedings.

Matton testified that counsel had not made any specific promises regarding the amount of gain time he would receive and had not had any discussions with him. about the gain time he was entitled • to receive. According to Matton, counsel told him that it was entirely up to the DOC to determine what gain time he would receive.

The trial court subsequently denied Matton’s motion for postconviction relief. In its order, the court found that Matton had entered into a negotiated plea with a specific agreement as to the amount of credit to which he was entitled and that he had therefore waived his right to any additional credit to which he might otherwise be entitled. Based on that finding, the trial court held that counsel was not ineffective because Matton “made the decision to accept the negotiated sentence with full knowledge that there were no promises made by either the Court or counsel regarding gain time.” In addition, the trial court found that counsel was not ineffective for failing to challenge the victim injury points because she “had no reason to question victim injury points that had been previously assessed at the original sentencing.” Matton appeals both of these rulings.

Matton first contends that the trial court erred in finding that he had waived his right to his previously accrued statutory gain time. We agree. Under the law as it existed when Matton committed his offenses, neither the trial court nor the DOC could refuse to award previously accrued gain time to a defendant sentenced on a revocation of probation after having served the incarcerative portion of a true split sentence. See Eldridge v. Moore, 760 So.2d 888, 891 (Fla.2000) (noting that for offenses committed after October 1, 1989, both the trial court and the DOC have the statutory authority to forfeit a- prisoner’s accrued gain time, but that neither had such authority before that date and therefore such gain time may not be forfeited for offenses committed before October 1, 1989); Dowdy v. Singletary, 704 So.2d 1052, 1054 (Fla.1998) (same); State v. Green, 547 So.2d 925, 926 (Fla.1989). However, defendants can waive both constitutional and statutory rights as part of a plea-agreement. See, e.g., Lebron v. State, 799 So.2d 997, 1019 (Fla.2001) (holding that a defendant can waive ex post facto protections as part of a plea agreement); Larson v. State, 572 So.2d 1368 (Fla.1991) (holding that a defendant may waive constitutional rights as part of a voluntary plea agreement); Harris v. State, 438 So.2d 787 (Fla.1983) (holding that a defendant may waive his statutory right to have the jury instructed on necessarily lesser included offenses). Thus, in this case,, Matton was legally entitled to an award of his previously accrued gain time credit unless he specifically waived his right to that credit as part of the plea agreement. Therefore, the only question before the trial court in this .case was whether Matton had, in fact, validly waived his statutory right to credit for his previously accrued gain time when he accepted the negotiated plea agreement with the State.

At the evidentiary hearing, Matton testified that he understood when he entered his plea agreement that he was stipulating to credit for the amount of time actually served. He testified that he did not know that he had a right to credit for his previously accrued, gain time; therefore, he could not have knowingly and voluntarily waived his right to that credit. Matton’s attorney testified that she had no discussions with Matton concerning gain time and that she would not have advised him about any award of previously accrued gain time. The State presented no evidence on this issue at the hearing. Thus-, the unrefuted testimony at the evidentiary hearing was that Matton did not know he was entitled to this credit, that no one told him he was entitled to this credit, and that he did not 'learn of his entitlement and purported waiver until he actually entered DOC custody.

Under these circumstances, the trial court had no evidence whatsoever upon which to base a finding that Matton knowingly and voluntarily waived his right to his previously accrued gain time. Clearly, Matton could not knowingly and voluntarily waive a right about which he had no knowledge. The fact that neither the court nor counsel made any promises to Matton concerning what gain time he would receive does not refute his testimony that he was unaware of his entitlement to his previously accrued gain time. While the State argued at the evidentiary hearing that it intentionally structured the plea offer so that Matton would serve ten years in prison, the1 State presented no evidence of this intent nor did it present any evidence that this intent 'was communicated to either Matton or his counsel. Thus, the trial court’s finding that Matton knowingly and voluntarily wáived his right to his accrued gain time is not based on competent, substantial evidence. Therefore, we reverse the denial of Matton’s motion on this basis and remand for Matton to be given the opportunity to withdraw his admission to the violation of probation.

Matton also contends on appeal that the trial court erred when it denied him relief on his claim -concerning the victim injury points that were included on his scoresheet. Matton alleged in his motion that the forty points for victim injury that were included on his sentencing score-sheet, both at the original sentencing and at the sentencing on his revocation of probation, were improper under Karchesky v. State, 591 So.2d 930 (Fla.1992), which held that for offenses occurring before May 12, 1992, victim injury points could not be assessed for penetration without ascertainable victim injury. Matton contends that because the State never presented any evidence of actual physical victim injury his counsel was ineffective for failing to challenge these points when he was sentenced at the revocation proceedings and that he is entitled to be resentenced using a corrected scoresheet. We agree.

At the evidentiary hearing on Mat-ton’s motion, his counsel testified that she did not challenge the inclusion of the victim injury points at the revocation hearing because the points had been included on the original scoresheet and she believed that it was too late to challenge them. However, this court has held that a defendant may challenge the inclusion of victim injury points at a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal. See Routenberg v. State, 802 So.2d 361, 361 (Fla. 2d DCA 2001); Sommers v. State, 796 So.2d 608, 610 (Fla. 2d DCA 2001); Spell v. State, 731 So.2d 9 (Fla. 2d DCA 1999). The failure to object to scoresheet errors constitutes ineffective assistance of counsel if counsel failed to object to errors of which counsel knew or should have known. Sommers, 796 So.2d at 610; Richie v. State, 777 So.2d 977, 977 (Fla. 2d DCA 1999). Because Matton’s trial counsel failed to object to the possibly improper victim injury points, counsel’s performance was deficient, and the trial court’s finding to the contrary is not supported by any evidence in the record.

To be entitled to postconviction relief, however, Matton must show both that trial counsel’s performance was deficient and that he was prejudiced by that deficiency. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, the trial court did not address the issue of prejudice because it did not find that trial counsel’s performance was deficient. Accordingly, on remand, the trial court must first review the trial record for evidence of physical injury or trauma other than penetration which would support the assessment of victim injury points. Rowan v. State, 791 So.2d 40, 41-44 (Fla. 2d DCA 2001). If the record is devoid of such evidence, the trial court must hold an evidentiary hearing on the issue, at which the State has the burden to prove actual injury to the victim. Id.

We conclude that Matton’s counsel was ineffective for failing to properly advise him concerning his entitlement to credit for previously accrued gain time and for failing to challenge the inclusion of victim injury points on his guidelines scoresheet. Therefore, Matton must be permitted to withdraw his admission to the revocation of his probation. On remand, if Matton chooses to withdraw his plea, the State may either enter into another plea agreement with Matton or schedule a revocation hearing, after which the trial court may sentence him to any sentence legally available at the time of his offense. In addition, Matton may challenge on remand the victim injury points included on his sentence scoresheet.

Reversed and remanded for further proceedings.

WHATLEY and COVINGTON, JJ„ concur.


author: STEVENSON, J.

text:
    STATE of Florida, Appellant, v. Ronald R. PFEIFFER, Appellee.
    No. 4D02-1877.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Rehearing Denied May 28, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellant.
    Laurence Faye, Boynton Beach, for ap-pellee.
   STEVENSON, J.

The State of Florida appeals an order dismissing a charge of aggravated fleeing and eluding and discharging the defendant, Ronald R. Pfeiffer, on speedy trial grounds. We reverse and remand for further proceedings.

Pfeiffer was arrested for aggravated fleeing and eluding on July 16, 2001. Thereafter, Pfeiffer was charged not only with aggravated fleeing and eluding, but also with driving with a suspended license. Pfeiffer pled no contest to driving with a suspended license and was sentenced to six months probation.

With respect to the charge of aggravated fleeing and eluding, Pfeiffer filed a rule 3.190(c)(4) motion to dismiss in late August 2001, asserting that the facts alleged by the State did not establish a prima facie case. The State filed a traverse in October 2001. Then, on January 14, 2002, the trial court granted Pfeiffer’s 3.190(c)(4) motion and dismissed the charge.

On February 1, 2002, the State refiled the aggravated fleeing and eluding charge in a new lower court case number. On February 25, 2002, Pfeiffer filed two motions to dismiss — one on double jeopardy grounds and the other on speedy trial grounds. On the speedy trial issue, Pfeif-fer argued that the speedy trial time for the aggravated fleeing and eluding charge expired on January 7, 2002 (175 days after his July 16, 2001 arrest), and since the information in the new lower case number was not filed until February 1, 2002, he was entitled to dismissal of the charge. The trial court agreed, dismissed the charge, and discharged Pfeiffer. We find that the dismissal and discharge did not comport with the language of Florida Rule of Criminal Procedure 3.191, and we, therefore, reverse.

Rule 3.191(a) provides that “every person charged with a crime ... shall be brought to trial within ... 175-days if the crime charged is a felony.” The 175 day period begins to run when the defendant is taken into custody. See Fla. R.Crim. P. 3.191(a), (d). A defendant is not, however, automatically entitled to discharge simply because 175 days have passed and he has not been tried. Rather, upon expiration of the 175 days, the defendant must file a notice of expiration of speedy trial. See State v. Demars, 848 So.2d 436 (Fla. 4th DCA 2003)(en banc); State v. Gibson, 783 So.2d 1155, 1158 (Fla. 5th DCA 2001); State v. Robinson, 744 So.2d 1151, 1153 (Fla. 1st DCA 1999). It is the filing of this notice of expiration of speedy trial that triggers the rule’s protection and the remedies set forth in subsection (p), including the requirement that the court hold a hearing within five days of the filing of the notice of expiration of speedy trial and, if none of the reasons set forth in subsection O') exist, the defendant must be tried within ten days or discharged.

Here, the speedy trial time expired on January 7, 2002. At that time, the initial aggravated fleeing and eluding charge was still pending as the trial court had not yet ruled on appellee’s 3.190(c)(4) motion to dismiss. Despite the pendency of the charge and the expiration of the speedy trial time, Pfeiffer did not file a notice of expiration of speedy trial. The charge was dismissed on January 14, 2002, and when the charge was refiled on February 1, 2002, approximately two weeks later, Pfeif-fer still did not file a notice of expiration of speedy trial. Having failed to file such notice, Pfeiffer was not entitled to dismissal of the charge and discharge.

We reject Pfeiffer’s suggestion that a different result is required as a consequence of the supreme court’s decisions in State v. Agee, 622 So.2d 473 (Fla.1993), Genden v. Fuller, 648 So.2d 1183 (Fla. 1994), and State v. Williams, 791 So.2d 1088 (Fla.2001). In Agee, thirty-three days prior to the expiration of speedy trial, the State filed a nolle prosequi as the victim was in a coma and there were no other witnesses. Sometime later and after the speedy trial time had run, witnesses became available and the State refiled. The trial court dismissed the charges, relying upon subsection (h) — now subsection (o) — of rule 3.191, which provides that “[t]he intent and effect of this rule shall not be avoided by the state by entering a nolle prosequi.” The First District affirmed, holding that “where the requisite speedy trial period has passed and the defendant could have secured a discharge, had a nolle prosequi not been entered, the 15-day recapture period ... is inapplicable.” State v. Agee, 588 So.2d 600, 603 (Fla. 1st DCA 1991)(emphasis in original). On appeal to the supreme court, the State argued that the speedy trial time did not continue to run following the filing of the nolle prosequi or, alternatively, that it was entitled to the recapture period. The supreme court rejected both arguments.

Section (h)(2) [now section (o)] makes clear that the State cannot circumvent the intent of the rule by suspending or continuing the charge or by entering a nol pros and later refiling charges:
To allow the State to unilaterally toll the running of the speedy trial period by entering a nol pros would eviscerate the rule....
Based on the foregoing, we hold that when the State enters a nol pros, the speedy trial period continues to run and the State may not refile charges based on the same conduct after the period has expired.

622 So.2d at 475 (citations omitted).

In Genden, the supreme court applied Agee’s holding to the circumstance where the State announces a “no action” prior to the filing of charges. And, in Williams, the court applied Agee and Genden to conclude that the State could not avoid speedy trial requirements by simply failing to file charges following the defendant’s arrest.

The instant case is distinguishable from Agee, Genden, and Williams. Here, there was no attempt by the State to circumvent the requirements of the speedy trial rule by abandoning or delaying the prosecution and the State’s actions did not serve to deprive the defendant of the opportunity to file a notice of expiration of speedy trial and avail himself of the rule’s protection. Rather, the 175-day speedy trial period expired while appellee’s 3.190(c)(4) motion to dismiss was under advisement by the trial court. When the trial court ultimately granted the motion to dismiss, the State promptly refiled charges. Nowhere in Agee, Genden, or Williams does the supreme court suggest that the State may never file or refile charges after the expiration of the 175-day speedy trial period where the State’s actions did nothing to deny the defendant the chance to timely assert his speedy trial rights.

In sum, since the defendant failed to file a notice of expiration of speedy trial, we hold that the trial court erred in dismissing the charge and discharging Pfeiffer on speedy trial grounds. On remand, Pfeiffer must file a notice of expiration of speedy trial, see Demars, 848 So.2d at 437-39, thus triggering the State’s obligation to try him within the recapture period.

REVERSED and REMANDED.

SHAHOOD and MAY, JJ., concur.

      . Subsection (p) provides as follows:
      (p) Remedy for Failure to Try Defendant within the Specified Time.
      (1) No remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision (j).
      (2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled “Notice of Expiration of Speedy Trial Time,’’ and serve a copy on the prosecuting authority.

        (3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

      . Doctrines of double jeopardy, collateral es-toppel, and res judicata do not prohibit the State from refiling charges following dismissal pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). See State v. Gellis, 375 So.2d 885, 886 (Fla. 3d DCA 1979).


author: POLEN, J.

text:
    Ubaldo Vicente SONTAY, Appellant, v. AVIS RENT-A-CAR SYSTEMS, INC., a foreign corporation, Fernanda Velasquez, as Mother and Natural Guardian of Jessica Velasquez, Vanessa Velasquez and Nicole Velasquez, minor children, Appellees.
    No. 4D03-238.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.

      Robert E. Gordon of Gordon & Doner, P.A., Palm Beach Gardens, and Philip M. Burlington of Caruso & Burlington, P.A., West Palm Beach, for appellant.
    Angela C. Flowers of Kubicki Draper, Miami, for appellee Ubaldo Vicente Son-tay.
    Paul D. Jess, Tallahassee, and Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, for Amicus Curiae The Academy of Florida Trial Lawyers.
    Tracy Raffles Gunn of Fowler, White, Boggs, Banker, Tampa, and Gail Leverett Parenti of Parenti, Falk, Waas, Hernandez & Cortina, P.A., Coral Gables, for Amicus Curiae Florida Defense Lawyers Association.
    Alicia L. Rause, Coral Gables, for Ami-cus Curiae Pacific Legal Foundation.
   POLEN, J.

This appeal arises from an automobile accident in which the Appellant, Sontay, was seriously injured and subsequently filed a three-count complaint against the driver’s lessor, Avis Rent-A-Car, for vicarious liability, negligent entrustment, and a derivative claim on behalf of his minor children. For the reasons stated below, we affirm the final judgment in favor of Avis.

The facts are undisputed. On March 25, 2001, Avis rented a Cadillac Seville to 19-year-old Jose Ceballo for the period of one week. The Avis branch manager, Richard Kuehner, testified that there were a number of irregularities with this transaction. Specifically, Avis had incorrectly recorded Ceballo’s birth date, thereby making him appear to be 25. This mistake allowed the transaction to comply with their company policy which prohibits the renting of a vehicle to an individual under the age of 25. Additionally, Avis charged Ceballo for a mid-size car yet rented him a luxury full-size Cadillac.

Sometime between 6:30 p.m. and 7:30 p.m. on the night of March 30, 2001, Cebal-lo picked up his girlfriend-Pauline Ovejero. The Cadillac was descending a hill when Sontay appeared, walking across the street at the bottom of the hill. The Cadillac swerved in an unsuccessful attempt to avoid Sontay. Sontay was struck by the front right portion of the car. Both occupants of the car claim that Ovejero was driving at the time of the accident. Notwithstanding the uncontested story, the investigating officer believed that Ceballo was driving due to the amount of broken glass that was found on each of them at the scene. Rowe suspected that Ceballo, whose license was valid but had previously been suspended for fading to pay traffic tickets, drove away after the impact in order to change positions with Ovejero before returning to the scene of the accident. As a result of the accident, Sontay suffered serious .injuries and required extensive rehabilitation.

Sontay and Fernanda Velasquez, his long-term girlfriend and the mother of his children, filed an amended three-count complaint for vicarious liability, negligent entrustment, and a derivative claim on behalf of the minor children. Avis moved to dismiss the negligent entrustment count for failure to state a cause of action which was granted by the trial court.

Section 324.021(9), Florida Statutes, effectively limits the vicarious liability of a short-term automobile lessor. Sontay moved for partial summary judgment asking the trial court to find Chapter 99-225, Laws of Florida, which contained section 324.021(9), unconstitutional as violative of the single-subject rule. Sontay further argued that section 324.021(9) violated access to the courts, equal protection, dué- process, and the right to a jury trial. The trial court held that Chapter 99-225 and section 324.021(9) were constitutional. The parties later reached a settlement,' without waiving any rights to an appeal, providing Sontay with a maximum recovery permitted under law. A final judgment incorporating that settlement was entered, which reflected that $90,000 was for non-eeonomic damages for the children’s claim, $10,000 was recovered from Ovejero’s insurer, and $500,000 was for economic damages from Avis. This timely appeal followed.

To the extent Sontay argues that Chapter 99-225 is unconstitutional as violative of the single subject rule, we recognize our opinion in Determann v. Anser, Inc., 859 So.2d 548, 548 (Fla. 4th DCA 2003), in which we aligned ourselves with the first and third districts that have already rejected such an argument. See Enter. Leasing Co. v. Hughes, 833 So.2d 832 (Fla. 1st DCA 2002); Budget Rent-A-Car Sys. v. Eddie Bennett, 847 So.2d 579 (Fla. 3d DCA 2003).

Sontay .argues that section 324.021(9) is unconstitutional as violative of (1) a plaintiffs right of access to courts, (2) a plaintiffs right to trial by jury, and (3) the equal protection and due process clauses of the Florida Constitution. For the reasons set forth below and in line with the first and third districts in Hughes and Eddie Bennett, we reject these arguments. Sontay first contends that the cap on vicarious liability of short term lessors abolishes their right of access to the courts without affording a commensurate benefit or expressing an overpowering public necessity for this limitation. In Abdala v. World Omni Leasing, Inc., 583 So.2d 330, 333 (Fla.1991), the supreme court approved of section 324.021(9)(b) 1, which eliminated the vicarious liability of long-term lessors provided the lessee maintains certain levels of insurance coverage.

Limiting the liability of one vicariously hable does not equate to denial of access to court. On this issue we approve the holdings of Perry v. G.M.A.C. Leasing Corp., 549 So.2d 680, 681 (Fla. 2d DCA 1989) (subsection 324.021(9)(b) “does not limit plaintiffs right to recover damages from the lessee who controls the operation of the vehicle. Nor does it place a cap upon those damages.”), review denied, 558 So.2d 18 (Fla.1990), and Fol- mar v. Young, 560 So.2d 798 (Fla. 4th DCA 1990)(same).

Id.

We find Abdala to be controlling and are thus unpersuaded by Sontay’s attempt at distinguishing it. Although section 324.021(9)(b)l requires long-term lessees to maintain certain levels of insurance whereas section 324.021(9)(b)2 makes no such requirement of short-term lessees, the end result is balanced. The vicarious liability of long-term lessors can be completely eliminated because section 324.021(9)(b)l requires long-term lessees to maintain insurance. On the other hand, because section 324.021(9)(b)2 does not require short-term lessees to maintain insurance, it imposes vicarious liability on the short-term lessor, at an extent greater than the minimum insurance coverage required of long-term lessees.

Likewise, the first district in Hughes held that section 324.021(9)(b)2 “merely limits the liability of short-term lessors. It does not preclude an individual suffering from injuries arising from a vehicle accident from suing the lessee or operator of the vehicle.... A plaintiff can always recover additional damages from the lessee or operator.” 833 So.2d at 838. Because limiting vicarious liability does not equate to the denial of access to courts, we decline to address Sontay’s argument as to the lack of an expressed public necessity for the legislation. See Kluger v. White, 281 So.2d 1, 4 (Fla.1973).

Sontay next argues that section 324.021(9) (b)2 violates his constitutional right to a trial by jury. Sontay relies on Smith v. Department of Insurance, 507 So.2d 1080, 1088-89 (Fla.1987) for the proposition that:

[a] plaintiff who receives a jury verdict for, e.g., $1,000,000, has not received a constitutional redress of injuries if the legislature statutorily, and arbitrarily, caps the recovery at $450,000. Nor, we add, because the jury verdict is being arbitrarily capped, is the pláintiff receiving the constitutional benefit of a jury trial ás we have heretofore understood that right.

However, Smith dealt with a damage cap with' regard to the actual wrongdoer. Capping the liability of the faultless owner, while leaving the unlimited liability of the wrongdoer intact, does not deprive a plaintiff of the constitutional benefit of a jury trial: See Hughes, 833 So.2d at 838.

Sontay’s final argument is that section 324.021(9)(b)2 violates his rights to due process and equal protection. First he claims the statute is not rationally related to a legitimate legislative goal. See Folmar v. Young, 591 So.2d 220, 224 (Fla. 4th DCA 1991). We disagree.

Through Chapter 99-225, the Legislature sought to shift some of the responsibility for damages due to the operation of the motor vehicle from the owner of a motor vehicle to the operator/lessee of the vehicle in short term leases. See H.R. Comm, on Judiciary, Analysis of HB 775. The statute shifts more of the liability to the actual tortfeasor.

Hughes, 833 So.2d at 839. Accordingly, we believe the statute’s purpose of shifting liability from those without fault to those with fault is a legitimate legislative goal to which the statute is rationally related.

Sontay further contends that- the statute is discriminatory, most notably arguing that the damages cap, in effect, distinguishes between serious and modest injuries, thereby discriminating against those who become disabled. The supreme court has already held that abolishing vicarious liability of long-term lessors does not “discriminate against plaintiffs suffering the worst injuries by eliminating possible recovery from the lessor in view of the unlimited ability to recover from the lessee.” Abdala, 583 So.2d at 334. We find Abdala to be applicable here as well. Likewise, the first district in Hughes held “the damages cap applies to all plaintiffs. The statute does not contain any arbitrary or oppressive classifications.” 833 So.2d at 839. We find Sontay’s other arguments challenging due process and equal protection to be unpersuasive, as he has failed to meet his great burden with respect to constitutional challenges. See Hughes. We also feel no need to comment on Son-tay’s remaining argument regarding the negligent entrustment claim.

AFFIRMED.

MAY, J., and DAMOORGIAN, DORIAN, Associate Judge, concur.


author: PER CURIAM.

text:
    MELTON MANAGEMENT, INC. d/b/a McDonald’s, Appellant, v. Valerie KROTT-SHAUGHNESSY and Steven Shaughnessy, et al., Appellees.
    No. 4D03-2383.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Richard A. Sherman, Sr. of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Carlos M. Llórente of the Law Offices of Pedisich & Llórente, Fort Lauderdale, for appellant.
    No brief filed for appellees.
   PER CURIAM.

Melton Management, Inc. d/b/a McDonald’s (“Melton”) appeals an order denying its motion to tax costs and abate proceedings under Florida Rules of Civil Procedure 1.420 and 1.525. We affirm.

Valerie Krott-Shaughnessy (“Shaugh-nessy”) filed a personal injury action against Melton for negligence. After extensive discovery, and on the eve of trial, Shaughnessy voluntarily dismissed the action. Melton’s counsel intentionally did not file a Rule 1.525 motion within thirty days of the dismissal because Melton’s counsel believed Shaughnessy “did the right thing” by voluntarily dismissing the action and was pro se. Approximately one year later, Shaughnessy retained new counsel who re-filed a complaint for personal injury against Melton. The cause of action and the parties were the same as those in the first action.

Within thirty days of the filing of the second complaint, Melton moved to tax costs and abate the proceedings under Rule 1.420(d) until the costs of the initial action were paid. The trial court held a hearing and denied Melton’s motion under Rule 1.420(d) due to Melton’s failure to file a motion for costs within thirty days of the day of the voluntary dismissal of Shaugh-nessy’s first complaint as required under Rule 1.525. The trial court also denied Melton’s request to allow the filing based on excusable neglect after hearing that Melton’s counsel voluntarily elected not to file a motion for fees or costs because Shaughnessy “did the right thing” by voluntarily dismissing the action and was pro se. This timely appeal ensued.

In the proceedings below, Melton’s trial counsel argued that Rule 1.420(d) is applicable to the case at bar and serves to waive or alter the time requirements of Rule 1.525. In contrast, Melton’s appellate counsel chose to abandon that position and now asserts only that the trial court erred by not conducting an excusable neglect inquiry.

As to Melton’s position on appeal, we find that the record supports the lower court’s conclusion that Melton intentionally chose not to pursue a claim for costs in the first action. As such, there can be no excusable neglect. See Fla. High Sch., Activities, Inc. v. Latimer, 750 So.2d 762, 763 (Fla. 3d DCA 2000) (excusable neglect rule “is not intended to relieve a party from its own tactical mistakes”); BMW of N. Am., Inc. v. Krathen, 471 So.2d 585, 588 (Fla. 4th DCA 1985) (excusable neglect warrants relief from judgment only “where it is the result of generally accepted practices and amenities among the local bar”); Smiles v. Young, 271 So.2d 798, 802 (Fla. 3d DCA 1973) (“after making a decision not to request a copy [of a court-appointed physician’s report] and accepting the benefits of the choice, a plaintiff ought not be allowed to label the ‘mistake’ one of ‘inadvertence or excusable neglect’ ”). Therefore, we conclude that the trial court did not err and affirm.

AFFIRMED.

POLEN, MAY, JJ, and DAMOORGIAN, DORIAN K, Associate Judge, concur.


text:
    COHEN BROTHERS, LLC., Deltom Solutions, LLC, and Alberto Scandella, Appellants, v. ME CORP., S.A., Jose Luis Rusconi, and Roman Rolando Rusconi, Appellees.
    No. 3D03-187.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.

      Ferrell, Schultz, Carter, Zumpano & Fertel, P.A. and Gary M. Murphree, and William J. Simonitsch, Miami, for appellant.
    Kozyak, Tropin & ThroekMorton, P.A. and Charles Throckmorton, Miami, for ap-pellee.
    Before GREEN, FLETCHER, and WELLS, JJ.
   PER CURIAM.

This is an appeal from the dismissal, with prejudice, of a complaint alleging violations of Florida’s Security of Communications Act, section 934.01 et seq., Florida Statutes (1999) (the “Wiretap Statute”). For the reasons which follow, we affirm.

The appellants, Cohen Brothers, LLC (herein “Cohen 'Bros.”), Deltom Solutions, LLC (“Deltom”), and Alberto Scandella filed a complaint seeking damages and in-junctive relief against appellees ME Corp., S.A., Jose Luis Rusconi, and Roman Rolando Rusconi (collectively, “the Ruseonis”) under the Wiretap Statute.

According to the complaint, plaintiff Cohen Bros, is a New York corporation with its headquarters and sole place of business in Miami, Florida. Deltom is a Delaware limited liability company, and Scandella is a citizen of the Commonwealth of Puerto Rico. Defendant, ME Corp., is an Argentinean corporation which does or has done business in Florida. The Ruseonis are citizens of Argentina who are doing, or have done, business in Florida.

All of the parties to this action are members of the management committee of Deltom. The committee conducted two shareholder meetings by telephonic conference calls to discuss the continued financing of the company. Two members of the committee, the Ruseonis, allegedly secretly recorded these calls while in Argentina. Specifically, according to the well-pled allegations of the complaint, the two conference calls to the members of the management committee were initiated by Deltom’s attorney, Gary Murphree and Angel Garcia-Oliver from Miami. One plaintiff/appellant, Cohen Bros., through its proxy Perry Murphree, participated in these calls from New York and another, Alberto Scandella, participated from Puer-to Rico. The Ruseonis both participated from Argentina and allegedly tape recorded these conferences without the knowledge or consent of the other participants.

Prior to this action, the Ruseonis sued the members of Deltom and others in New York. The Ruseonis, through discovery, produced the tape recordings of the telephonic conferences, at issue here, in the New York action.' Upon learning- of the existence of these recordings, the appellants instituted this action, seeking damages and injunctive relief against the Rus-conis, for breach of Florida’s “Wiretap Statute.”

The Ruseonis moved to dismiss or abate the complaint on grounds that it failed to state a cause of action under the Wiretap Statute because none of the plaintiffs were alleged to be Florida residents or had been in Florida for the telephonic meetings and because the alleged interceptions did not occur in Florida. The trial court granted the motion and dismissed the complaint with prejudice on grounds, among others, that the Wiretap Statute did not create a civil remedy where the plaintiffs are not Florida residents, the taping was not alleged to have occurred in Florida, and the recordings were not alleged to have been disclosed or used in Florida. We affirm.

The Wiretap Statute provides in pertinent part that: § 934.10(1), Fla. Stat. (1999). The term “person” as used in this provision is defined as:

1) Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of ss. 934.03-934.09 shall have a civil cause of action against any person or entity who intercepts, discloses, or uses, or procures any other person or entity to intercept, disclose, or use, such communications....
[A]ny employee or agent of the State of Florida or political subdivision thereof, of the United States, or of any other state or political subdivision thereof, and any individual, partnership, association; joint stock company, trust, or corporation.

§ 934.02(5), Fla. Stat. (1999).

To establish a claim under the Wiretap Statute, the persons bringing suit must be Florida residents or the improper “interception” must have occurred in Florida. The law is clear that an “interception” occurs “where the words or the communication is uttered, not where it is recorded or heard.” Koch v. Kimball, 710 So.2d 5, 7 (Fla. 2d DCA 1998). See also State v. Mozo, 655 So.2d 1115, 1117 (Fla.1995) (finding that the actual interception of a communication occurs where the communication originates). In this case, none of the persons bringing suit are Florida residents, and the utterances made by these persons were made in New York (where the proxy for Cohen Bros, was located) and in Puerto Rico (where Scandella was located). While it is uncontroverted that Deltom’s Miami attorneys originated the telephone conferences that were allegedly recorded in Miami, Florida, these attorneys are not named as parties to this suit, and there are no allegations that then-privacy was invaded or that recording their comments was unlawful.

More to the point, only Deltom appears to have a claim here. There is no dispute that these conference calls constituted “meetings” of Deltom’s management committee/shareholders called by its attorneys for the purpose of determining whether, and how, to continue capitalizing Deltom. The participants of these meetings were not participating in an individual capacity but were all participating on behalf of Deltom and as part of Deltom’s management team.. As such, neither these individuals nor Deltom had an expectation of privacy necessary to protect under the Florida Wiretap Statute.

It is clear that an oral communication cannot be intercepted and disclosed without the consent of the parties if there is a reasonable expectation of privacy which is recognized by society. See Jatar v. Lamaletto, 758 So.2d 1167, 1169 (Fla. 3d DCA 2000). See also State v. Smith, 641 So.2d 849, 852 (Fla.1994) (“[F]or an oral conversation to be protected under section 934.03 the speaker must have an actual subjective expectation of privacy, along with a societal recognition that the expectation is reasonable.”). Society does not recognize an absolute right of privacy in a party’s office or place of business. See Momingstar v. State, 428 So.2d 220, 221 (Fla.1983) (finding that although defendant may have had reasonable expectation of privacy in his private office, that expectation was not one which society was willing to accept as reasonable or willing to protect); Jatar, 758 So.2d at 1169 (“Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office.”) (Emphasis in original). Similarly, we don’t believe that society would recognize, as reasonable, that such an expectation of privacy exists in a conference call, specifically where the call is held to conduct the business of the company. Moreover, we find that Deltom’s suit against the Ruseon-is is actually a suit against itself, particularly because the Rusconis, like the other appellants, were acting as shareholders and managers of Deltom at the time that the conversations were spoken and recorded. Accordingly, Deltom’s cause of action, like that of the other plaintiffs, fails.

Affirmed.

      . The motion also sought dismissal of the complaint on the grounds that the court lacked subject matter jurisdiction because the subject matter of this action was pending before another court of competent jurisdiction and that the court lacked personal jurisdiction over the defendants.

      . In reaching its conclusion, the lower court deemed the remaining grounds raised for dismissal to be moot.

      . "'Intercept' means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." § 934.02(3), Fla. Stat. (1999). See also State v. Tsavaris, 394 So.2d 418, 421 (Fla.1981), receded from on other grounds by Dean v. State, 478 So.2d 38; 41 (Fla.1985) ("'[T]o intercept’ means to gain control or possession of a communication through the sense of hearing and through the use of an electronic or mechanical device.”).


author: RAMIREZ, J.

text:
    BARTON REALTY, INC., Appellant, v. Fernando LOPEZ, a/k/a Fernando Lopez Espinosa, Appellee.
    No. 3D03-2761.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Dearman & Gerson, and Robert J. Har-kins, for appellant.
    De La Cruz & Cutler; Albert D. Viener; Rodham & Fine, and Gary Robert Fine, Fort Lauderdale, for appellee.
    Before FLETCHER, RAMIREZ, and WELLS, 33.

   RAMIREZ, J.

The plaintiff, Barton Realty, Inc., appeals from an order dismissing the case for lack of prosecution pursuant to rule 1.420(e), Florida Rules of Civil Procedure. Because we conclude that the plaintiff failed to show good cause as to why the action should remain pending, we affirm.

It is undisputed that no record activity in the cause took place for a period of one year. Plaintiff argues, however, that there was good cause to maintain the case pending because there was a third-party complaint filed, which was not at issue. We stated in CPI Mfg. Co., Inc. v. Industrias St. Jack’s, S.A. De C.V., 870 So.2d 89 (Fla. 3d DCA 2003), that the resolution of a motion to dismiss for failure to prosecute involves a two-step process. “First, the defendant is required to show there has been no record activity for one year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should remain pending.” Id. We also made clear that the “good cause” criteria was different from the “excusable neglect” standard.

Plaintiff cites to Shaw & Keeter Motor Co., Inc. v. Maris Distrib. Co., Inc., 403 So.2d 570 (Fla. 1st DCA 1981), for the proposition that, because the third-party complaint was not at issue, plaintiff could not notice the case for trial. He thus argues that this constitutes good cause. The Shaw case simply held that record activity on a third-party complaint during the year preceding the defendant’s motion to dismiss for failure to prosecute was sufficient to prevent the dismissal of plaintiffs complaint. Id. at 571. In our case, there was no record activity at all, either in connection with the plaintiffs complaint or the third-party complaint. The clear import of the Shaw decision is that record activity in connection with the third-party complaint serves as activity in the entire case. Under plaintiffs argument, its complaint could simply be held captive ad infi-nitum because the third-party complaint was not being prosecuted. That is not the law in our state. The plaintiff can always move to sever pursuant to rule 1.270(b), Florida Rules of Civil Procedure.

We thus conclude that the trial court did not abuse its discretion in dismissing the case for lack of prosecution.

      . We note that filing such a motion would alone have constituted record activity sufficient to belay any motion to dismiss.