author: SALCINES, Judge.

text:
    James BROWN, Jr., Appellant/Petitioner, v. STATE of Florida, Appellee/Respondent.
    Nos. 2D02-4885, 2D04-208.
    District Court of Appeal of Florida, Second District.
    June 16, 2004.

      James Brown, Jr., pro se.
    Charlie J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Respondent/Appellee.
   SALCINES, Judge.

In case number 2D02-4885, James Brown, Jr., appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 in circuit court case number 99-13982. We affirm the trial court’s order without discussion.

However, in case number 2D04-208, we grant Brown’s petition alleging ineffective assistance of appellate counsel arising out of the direct appeal of the judgment and sentence in that same circuit court case number 99-13982. Because Brown’s sentence would have been reversed had the vindictive sentence claim been raised on direct appeal, we conclude that his appellate counsel was ineffective for failing to raise the issue on direct appeal. Accordingly,' we reverse his sentence and remand for resentencing by a judge other than the original sentencing judge.

In circuit court case 99-13982, Brown was charged with one count of sale of cocaine and one count of possession of cocaine. According to the record, Brown was offered a sentence of 33.7 months (less than three years) 'in prison as part of the plea negotiations. Brown rejected the offer and chose to proceed to trial. He was convicted of both offenses, and the court sentenced him to twenty years in prison as a habitual felony offender on count one and five years in prison on count two. Brown filed his direct appeal in case number 2D00-1515, and this court per curiam affirmed the judgment and sentences in 2001. See Brown v. State, 782 So.2d 390 (Fla. 2d DCA 2001) (table decision).

At the time- of Brown’s direct appeal, the standard in this district for determining whether a sentence is vindictive was. set forth in McDonald v. State, 751 So.2d 56 (Fla. 2d DCA 1999). According to McDonald, when the judge has been involved in the plea negotiation and then later imposes a stiffer sentence, the sentence is presumed to be vindictive. 751 So.2d at 59. This presumption may be overcome only if the record affirmatively demonstrates that the defendant’s insistence to proceed to trial was given no consideration by the judge at the time of sentencing. Id.

The record in this case indicates that the trial judge initiated and was involved in the plea negotiations. At a pretrial conference held in case numbers 98-22787 and 99-13982, the trial judge offered Brown a bottom of the guidelines sentence of 33.7 months in prison in case 98-22787. In an attempt to persuade Brown to accept that offer, the trial judge offered him the same sentence, 33.7 months in prison, in case 99-13982, the instant case. The trial judge further “sweetened” the deal by offering Brown equal jail credit in both cases although Brown was not entitled to such credit in case 99-13982. In addition, prior to swearing in the jury on the day of trial in case 99-13982, the trial judge again gave Brown another chance to accept the plea offer made at the pretrial conference. However, Brown chose to go to trial, and after he was convicted in case 99-13982, the trial judge imposed a harsher sentence of twenty years in prison as a habitual felony offender. Therefore, according to McDonald, a presumption of vindictiveness exists. That presumption is not refuted because the record does not affirmatively demonstrate that Brown’s election to proceed to trial did not influence the judge’s exercise of discretion when sentencing him. See id. at 59. The trial judge did not reveal, nor does the record indicate, any reasons that were unknown at the time of the original plea offer which would support the stiffer sentence. Although the trial judge reeited Brown’s pri- or record and the facts of the case as reasons for the increased sentence, the record of the pretrial conference indicates that the trial judge was aware of the details of Brown’s prior record and the facts of the case at the time he made the initial plea offer. We find nothing in the record to refute the presumption that the sentence was a product of judicial vindictiveness.

Brown has established that his sentence is vindictive according to the law at the time of his direct appeal, and his appellate counsel was ineffective for failing to raise the issue on appeal. We also conclude that Brown’s sentence is vindictive under the current standard set forth in Wilson v. State, 845 So.2d 142 (Fla.2003). According to Wilson, in determining whether a presumption exists that an imposed sentence is the result of judicial vindictiveness, the totality of the circumstances must be considered. 845 So.2d at 156. If a presumption of vindictiveness exists and the record does not rebut that presumption, the defendant is entitled to be resentenced by a different judge. Id. at 159. The factors to be considered in assessing the totality of the circumstances include, but are not limited to: (1) judicial participation in plea negotiations followed by a harsher sentence; (2) whether the trial judge initiated the plea discussions with the defendant in violation of State v. Warner, 762 So.2d 507 (Fla.2000); (3) whether the trial judge, through his or her comments on the record,' appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (4) the disparity between the plea offer and the ultimate sentence imposed; and (5) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing. Wilson, 845 So.2d at 156.

We are left with no other conclusions from the record but that the facts of the instant case give rise to a presumption of vindictiveness. It appears from the record that the trial judge initiated and repeated the plea offers when he urged Brown to accept the plea at the pretrial conference and as jury selection was to start. Furthermore, the disparity between the plea offers and the sentence imposed is great. Brown was originally offered 33.7 months (less than three years) in prison, but he was ultimately sentenced to twenty years in prison. Lastly, the record does not indicate any reasons for the harsher sentence that were unknown to the trial judge at the time of the repeated original offers. Therefore, in initiating and repeating the plea offers, the trial judge departed from his role as an impartial arbiter.

We conclude that, while a twenty-year habitual felony offender sentence for sale of cocaine is not per se inappropriate, the facts of this case establish that Brown’s sentence is vindictive. Because it is vindictive, the sentence would have been reversed on direct appeal had the issue been raised. Therefore, we grant the petition and reverse and remand for Brown to be resentenced before a jurist other than the original sentencing trial judge. See Wilson, 845 So.2d at 159; Jones v. State, 750 So.2d 709 (Fla. 2d DCA 2003).

Denial of motion for postconviction relief in case 2D02-4885 affirmed; petition for ineffective assistance of appellate counsel in case 2D04-208 granted, sentence reversed, and remanded with directions.

DAVIS and VILLANTI, JJ., Concur.

      . Brown was subsequently acquitted of the charges in case number 98-22787.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    John D. NEWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2111.
    District Court of Appeal of Florida, Second District.
    June 16, 2004.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

John D. Newell appeals his conviction and sentence for failing to comply with the sexual offender registration requirements contained in section 943.0435, Florida Statutes (2000). We affirm.

In February 2002, Newell was charged with failure to register as a sexual offender. Among other things, section 943.0435 requires a convicted sexual offender to register and provide specific information to law enforcement and to notify law enforcement of any change in residence. Newell filed a motion to dismiss, arguing that section 943.0435 is unconstitutional on procedural due process grounds. After the trial court denied the motion, Newell entered a no contest plea while reserving the right to appeal the denial of his motion. On appeal, Newell argues that section 943.0435 violates procedural and substantive due process requirements.

Procedural due process challenges to section 943.0435 have previously been rejected by this court and other district courts of appeal. See Givens v. State, 851 So.2d 813 (Fla. 2d DCA 2003); Dejesus v. State, 862 So.2d 847 (Fla. 4th DCA 2003); Johnson v. State, 795 So.2d 82 (Fla. 5th DCA 2001). Accordingly, we conclude that the trial court did not err by denying Newell’s motion to dismiss as to procedural due process.

Concerning substantive due process, Newell argues that section 943.0435 improperly lacks any requirement of guilty knowledge, scienter, or mens rea. The Florida Supreme Court rejected this argument in State v. Giorgetti, 868 So.2d 512 (Fla.2004), and held that section 943.0435 must be construed as including a knowledge requirement.

Newell also makes a generalized attack on section 943.0435 without providing any significant analysis or citation to legal authority. Under established principles, “[a]ll statutes are presumed to be constitutional, and the party challenging the constitutionality of a statute bears the burden of demonstrating that it is invalid.” Hudson v. State, 825 So.2d 460, 465 (Fla. 1st DCA 2002); see also Chicago Title Ins. Co. v. Butler, 770 So.2d 1210, 1214 (Fla.2000). Newell’s conclusory argument demonstrates no basis for reversal.

Accordingly, we affirm Newell’s conviction and sentence.

ALTENBERND, C.J., and DAVIS, J. Concur.

      . Newell’s counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The brief discussed in an abbreviated manner procedural and substantive due process issues and concluded that there is no basis for reversal. We ordered the parties to provide supplemental merits briefs addressing procedural and substantive due process.


author: NORTHCUTT, Judge.

text:
    Carlos Ruben RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4071.
    District Court of Appeal of Florida, Second District.
    June 16, 2004.

      James Marion Moorman, Public Defender, and Sean K. Ahmed, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Carlos Rodriguez contends that his convictions for trafficking in cocaine and possession of cocaine must be reversed because the prosecutor’s questions and arguments at Rodriguez’s trial improperly shifted the burden of proof to him. We agree.

This case involved a credibility contest between David Seheffler and Juan Rodriguez (who is not related to Carlos). These men were the subject of an ongoing investigation by the Hillsborough County Sheriffs Office, and both pleaded guilty to the charges arising out of this case. Seheffler testified as a State witness and placed Carlos at Juan’s house, helping to package fake cocaine for sale to a confidential informant named JT. According to Seheffler, Carlos said they needed to add real cocaine for taste. Seheffler also recounted that as he and Carlos stood in front of the grocery store where the buy was to take place, Carlos pointed out police surveillance, causing them to change locations.

Juan testified for the defense. He denied that Carlos was involved in the deal. According to Juan, he and Seheffler prepared for the deal inside Juan’s house while Carlos was outside repairing Juan’s '89 Bronco. Juan testified that Carlos only rode along to the grocery store because Juan told him he was meeting a friend who owed him money, and he could then pay Carlos for the car repairs and give him a ride home. Juan said that Carlos did not get out of the car at the grocery store.

During cross-examination and over objection, the prosecutor asked Juan whether his wife was home on the three days that Carlos was allegedly working on the car and whether she could come testify about that. In closing argument and over objection, the prosecutor argued that Juan’s wife was home while Carlos was allegedly working on the car and she was “sitting at home right now.” The prosecutor also argued that there were no receipts to document the auto repairs.

Except in narrow circumstances not present here, the State may not comment on a defendant’s failure to call a witness. Janiga v. State, 713 So.2d 1102 (Fla. 2d DCA 1998) (reversing for new trial because State commented on defendant’s failure to call witness to confirm defendant’s testimony). Such a comment improperly shifts the burden of proof from the State to the defendant. Morgan v. State, 700 So.2d 29 (Fla. 2d DCA 1997). Because this trial was a credibility contest between two witnesses and the issue of whether Carlos was repairing Juan’s car was central to the defense, the error was not harmless. Accordingly, we reverse on this issue.

Carlos raises a second issue concerning the State’s use of a taped conversation at trial. We see no error because the tape was offered for impeachment and was not, therefore, inadmissible hearsay offered to prove the truth of the matter asserted. See Fleming v. State, 457 So.2d 499, 503 n. 1 (Fla. 2d DCA 1984).

Reversed and remanded for new trial.

ALTENBERND, C.J., and KELLY, JJ., Concur.


author: KLEIN, J.

text:
    FAMILY CARE CENTER, P.A., Appellant, v. TRUCK INSURANCE EXCHANGE, Appellee.
    No. 4D03-295.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    Rehearing Denied June 16, 2004.

      Richard M. Benrubi and Jeffrey M. Lig-gio of Liggio, Benrubi & Williams, P.A., West Palm Beach, and Philip M. Burlington of Philip M. Burlington, P.A., West Palm Beach, for appellant.
    Mark Hicks, Jean Kneale and Dinah Stein of Hicks & Kneale, P.A., Miami, for appellee.
   KLEIN, J.

We withdraw the opinion issued on March 31, 2004 and replace it with this opinion.

The medical malpractice insurance policy issued by the appellee insurer provided coverage only for Dr. Dean and her employer, the Family Care Center, which was an additional insured. Another physician employed by Family Care, Dr. Stine, was sued for malpractice, and the issue is whether Family Care is an insured under this policy for the claim against Dr. Stine. We affirm a summary judgment determining that there was no coverage, but reverse for Family Care to proceed on an amendment alleging estoppel.

Family Care required each of its physicians to carry malpractice insurance and Dr. Stine, who was allegedly negligent, was covered by a different insurer which settled with the claimant. Additional coverage was claimed under this policy, and during the statutory presuit medical malpractice proceedings, this insurer provided a defense to represent Family Care. Soon after the termination of the presuit proceedings, however, the insurer denied coverage and withdrew its defense. Family Care then entered into a consent judgment for $1 million with the claimant which provided that the claimant would not seek to collect against Family Care Center. Claimant agreed to seek satisfaction only from this insurer.

Family Care’s coverage argument relies on the first page of the policy which limited the coverage to “claims that are first made against you or any other protected person.” The introduction to the policy provides that “other insured parties may be identified in amendments attached to this policy and will be referred to in the policy as ‘Protected Persons.’ ”

An endorsement provided the following:

PROFESSIONAL CORPORATION/ASSOCIATION AS AN ADDITIONAL INSURED

It is understood and agreed that such insurance as is afforded by this Policy shall apply to:

FAMILY CARE CENTER, P.A.
as an additional insured (including any Executive officer, Director, Stockholder, or Shareholder thereof while acting within the scope of his duties as such) but only as respects professional services rendered or which should have been rendered by any Protected Persons named in this policy.

Section III of the policy, entitled “What this policy covers” provides coverage for Dr. Dean, but states:

Also, your coverage will not apply for acts of a member of your partnership, corporation, or professional association, simply because he or she is a member of your organization. It is necessary that each member, partner, or shareholder be individually insured.

Family Care’s argument is that by virtue of the endorsement, Family Care became an additional insured and was therefore a “protected person” under the introductory language quoted above. This, Family Care argues, creates an ambiguity.

We do not agree with the ambiguity argument, as it is clear that, when all of the provisions are read together, Family Care is an additional insured only for medical treatment rendered by Dr. Dean. Fla. Physicians Ins. Co. v. Lazenby, P.A., 576 So.2d 794 (Fla. 2d DCA 1991); Caduceus Self Ins. Fund v. S. Fla. Emergency Physicians, 436 So.2d 1034 (Fla. 3d DCA 1983).

Even if there were an ambiguity between the endorsement and the body of the policy, the endorsement, which is clear, controls. Fireman’s Fund Ins. Co. v. Levine & Partners, P.A, 848 So.2d 1186 (Fla. 3d DCA 2003); Steuart Petroleum Co. v. Certain Underwriters at Lloyd’s London, 696 So.2d 376 (Fla. 1st DCA 1997). Accordingly, Family Care is not an insured for this claim under the policy.

The estoppel argument, which we now address, was not initially included in the pleadings. On the eve of the summary judgment hearing on coverage, Family Care filed a motion to amend its pleadings to include a claim that the insurer was estopped from denying coverage, based on conduct during the time it initially provided a defense. The trial court denied the motion to amend, because the proposed amendment did not allege any facts which could constitute estoppel, and granted the motion for summary judgment. Family Care moved for rehearing on estoppel and filed an affidavit by counsel asserting specific factual allegations involving decisions made by the insurer while furnishing a defense which were prejudicial to Family Care’s ability to defend after the insurer denied coverage.

The estoppel theorjr was explained in Doe v. Allstate Insurance Co., 653 So.2d 371, 374 (Fla.1995), as follows:

Thus, when the insurer undertakes the defense of a claim on behalf of one claiming to be an insured, we have recognized substantial duties on the part of both the insurer and the insured. If an insurer erroneously begins to carry out these duties, and the insured, as required, relies upon the insurer to the insured’s detriment, then the insurer should not be able to deny the coverage which it earlier acknowledged. However, we clearly state that the insured must demonstrate that the insurer’s assumption of the insured’s defense has prejudiced the insured. It is the fact that the insured has been prejudiced which estops the insurer from denying the indemnity obligation of the insurance policy.

The insurer argues that the trial court properly denied the amendment as futile, because the facts alleged in the affidavit supporting the motion for rehearing were insufficient as a matter of law to amount to estoppel. The insurer argues that estoppel to deny coverage is limited only to situations surrounding the procurement of insurance, citing State Farm Mutual Automobile Insurance Co. v. Hinestrosa, 614 So.2d 633 (Fla. 4th DCA 1993), and Aetna Casualty & Surety Co. v. Deluxe Systems, Inc. of Florida, 711 So.2d 1293 (Fla. 4th DCA 1998). The issue in Hinestrosa was whether the insurer was precluded from denying coverage because of the failure of the insurer to comply with a claims administration statute. Hinestro-sa is accordingly distinguishable, and any language in Hinestrosa which would limit estoppel to conduct involved in the procurement of insurance must be read in light of the facts, as well as our supreme court’s decision in Doe, which came after Hinestrosa. Doe makes it clear that es-toppel to deny coverage can be based on conduct occurring after the insurer undertakes the defense of a claim. Aetna Casualty, which quoted Hinestrosa, is also factually distinguishable in that the insurer denied coverage from the very beginning.

Although a number of Florida cases have addressed both estoppel by conduct in the procurement of insurance, Crown Life Insurance Co. v. McBride, 517 So.2d 660 (Fla.1987), and estoppel in defending a liability claim, Doe, only two discuss specific facts which could constitute estoppel after the undertaking of a defense in a liability case. In Florida Municipal Insurance Trust v. Village of Golf, 850 So.2d 544 (Fla. 4th DCA 2003), rev. granted, 861 So.2d 429 (Fla.2003), before denying coverage, the insurer undertook the duty to investigate and negligently failed to preserve evidence which could have absolved the insured from liability. In Florida Physicians Insurance Co. v. Stern, 563 So.2d 156 (Fla. 4th DCA 1990), the insurer’s delay in informing the insured that there was no coverage resulted in the insured suffering monetary damages in that the insured, in reliance on the insurer’s conduct, failed to timely pursue coverage under a different policy.

In Doe our supreme court explained that the estoppel theory may be used to create insurance coverage, where there is none, if a refusal to do so “would sanction fraud or other injustice.” Doe, 653 So.2d at 373 (quoting McBride, 517 So.2d at 662). Although the facts alleged as constituting estoppel may, in the end, amount to no more than tactical decisions made in good faith, or be too speculative, we cannot agree with the insurer that the amendment would be futile as a matter of law. The amendment should therefore have been permitted. Hart Props., Inc. v. Slack, 159 So.2d 236 (Fla.1963) (where a summary judgment should be granted, but there is an indication that the opposing party may have a cause of action or defense which has not been pled, the proper procedure is to grant the motion for summary judgment with leave to amend).

We therefore affirm the summary judgment determining that Family Care was not an insured under the policy for this claim, but remand for further proceedings on the estoppel theory.

Family Care has moved for attorney’s fees, conditioned on ultimately prevailing, which is grounded on section 627.428, Florida Statutes (2002). We deny the motion because Family Care is not an insured as the statute requires.

Section 627.428 provides that fees shall be awarded if there is a judgment “against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer.” The statute authorizes fees only to the insured or beneficiary. Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla.1994). Because the statute is in derogation of the common law, it must be strictly construed. Pepper’s Steel & Alloys, Inc. v. U.S., 850 So.2d 462 (Fla.2003).

In the present case the trial court determined that Family Care is not an insured under the policy for this claim, and we affirmed. If Family Care does prevail on estoppel, it will not be prevailing as an insured, and accordingly will not be entitled to fees under section 627.428.

Family Care argues that our having granted a motion for appellate attorney’s fees in Florida Municipal Insurance Trust v. Village of Golf, 850 So.2d 544 (Fla. 4th DCA 2003), requires the granting of fees in this case in order for our decisions to be consistent. We did not, in Florida Municipal, address fees in our opinion, but we did grant the motion, contingent on the insured ultimately prevailing. As our opinion in Florida Municipal shows, however, the prevailing party on that appeal was an insured who was asserting that the insurer was estopped from relying on a pollution exclusion. Florida Municipal is accordingly distinguishable.

Reversed.

POLEN and HAZOURI, JJ., concur.


author: GROSS, J.

text:
    POMPANO MOTOR COMPANY d/b/a Eddie Accardi Jeep Chrysler, Plymouth, Subaru, Mazda, Appellant, v. CHRYSLER INSURANCE COMPANY a/k/a Daimler Chrysler Insurance Company, Appellee.
    No. 4D03-2543.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.

      Mark F. Booth of Rogers, Morris & Ziegler, Fort Lauderdale, for appellant.
    Eric W. Neilsen and Michael B. Buckley of Buckley & Fudge, P.A., St. Petersburg, for appellee.
   GROSS, J.

Pompano Motor Company appeals a final order after a non-jury trial denying its claim for declaratory judgment against Chrysler Insurance Company which challenged Chrysler’s failure to provide insurance coverage under a “Title Errors and Omissions Liability Endorsement” to a commercial lines insurance policy. We affirm the circuit court’s ruling that there was no coverage afforded to Pompano Motor under the policy.

Pompano Motor operates a car dealership. In July 1998, Fred Brandau and Ivan Rasullo purchased two cars from the dealership. Brandau and Rasullo were executives of Financial Federated Title & Trust, Inc. The two men appeared wealthy to the dealership’s employees; they dressed nicely and arrived at the dealership in a Mercedes-Benz. The two men arranged to purchase the cars with company checks and requested that the title to the vehicles be placed in other individuals’ names. It was not uncommon for a purchaser to title a car in another’s name.

The dealership took the checks it received from Brandau and Rasullo to the issuing bank to insure that they were legitimate. The dealership did not suspect that the funds were derived from illegal activities.

Brandau and Rasullo later returned to the dealership to purchase two more cars, explaining that the vehicles would be used at Brandau’s Connecticut home. The men paid the dealership with company checks which were taken to the issuing bank and cashed. The two men bought a fifth car in March 1999. On that transaction, they wired the funds to the dealership.

At the instruction of Brandau and Ra-sullo, the five cars were titled in the following manner: one to Brandau, one to Major Muscle Auto Sales, Inc., a company owned by Brandau, one to Mary Anne Billinghurst, an employee of Financial Federated, and two to David Hoffgarten, an associate of Brandau’s.

Financial Federated filed bankruptcy and a trustee was appointed for it. In 2001, the trustee filed a complaint against Pompano Motor seeking to set aside the transfer of the automobiles, under various statutory and common law theories contending that the transfers were fraudulent. The trustee later amended his complaint to add a cause of action for negligence.

For the bankruptcy trustee’s lawsuit, Pompano Motor sought coverage under the “Title Errors and Omissions Liability Endorsement” of its policy with Chrysler Insurance. That provision stated:

We will pay all sums an “insured” legally must pay as damages because of an alleged or actual negligent act, error or omission by an “insured” in “Title Paper Preparation”. However, coverage applies only if:
1. The purchaser with criminal intent to defraud the lienholder or legal owner transfers the title; or
2. The lienholder or legal owner makes claim or brings “suit” against you for damages because of the error or omission in title or omission in the title registration.

Chrysler Insurance denied coverage.

Pompano Motor responded with its complaint against Chrysler Insurance for a declaratory judgment. Pompano Motor contended that it should be covered under the policy for the damages sought by the bankruptcy trustee relating to Pompano Motor’s transfer of car titles to individuals and entities other than Financial Federated.

Pompano ultimately settled with the bankruptcy trustee for $50,000 and pursued its declaratory relief action against Chrysler Insurance.

After a non-jury trial, the circuit court entered a detailed judgment in favor of Chrysler Insurance. The court concluded

that Pompano did not owe a duty to FinFed, and therefore was not negligent in its titling of the five vehicles at issue[ ]. Because there was no negligence on the part of Pompano, there is no insurance coverage under the “Title Errors and Omissions Endorsement.”

We agree with the circuit court’s conclusion and also affirm for an additional reason.

First, there was no coverage because Financial Federated was not a “lien-holder or legal owner” within the meaning of the policy. In his lawsuit against Pompano Motor, the bankruptcy trustee stood in the shoes of the debtor, Financial Federated. See O’Halloran v. First Union Nat'l Bank of Fla., 350 F.3d 1197, 1202 (11th Cir.2003). Under the policy, there was coverage for Pompano Motor’s negligent act, error or omission in “Title Paper Preparation” and “[t]he lienholder or legal owner ” made claim or brought “suit” against Pompano Motor for damages because of the error or omission. (Emphasis added).

The policy does not define the term “legal owner.” When a term has not been defined by policy, its common definition should prevail. See, e.g., Great Am. Ins. Cos. v. Souza, 855 So.2d 187, 188-89 (Fla. 4th DCA 2003). Black’s Law Dictionary defines “legal owner” as “[o]ne recognized by law as the legal owner of something; esp., one who holds legal title to property for the benefit of another. See TRUSTEE.” Blacr’s Law DiCtionajry 1131 (7th ed.1999). “Legal title” is defined as “[a] title that evidences apparent ownership but does not necessarily signify full and complete title or a beneficial interest. Cf. equitable title.” Id. at 1493.

Here, none of the five automobiles sold by Pompano Motor were titled in the name of Financial Federated. Financial Federated’s ownership interest in the cars, if any, was equitable. Lawsuits would have been required to convert such equitable interests into legal ownership. Because the trustee stood in the shoes of only an “equitable” owner, and not a legal owner of the cars, there was no coverage under the policy.

As to the second basis for affir-mance, we agree with the circuit court that there was no “negligent act, error or omission” by Pompano Motor within the meaning of the policy. Pompano Motor did not owe a duty to Financial Federated to look behind the transactions and conduct quasi-criminal investigations.

The existence of a legal duty in a negligence case is a threshold question to be decided by the court. See Gibbs v. Hernandez, 810 So.2d 1034, 1036 (Fla. 4th DCA 2002). As we wrote in Gibbs:

Such “a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others.” McCain [v. Fla. Power Corp., 593 So.2d 500, 503 (Fla.1992) ]. Once that foreseeable zone of risk has been created, the defendant has a duty “either to lessen the risk or to see that sufficient precautions are taken to protect others from the harm that the risk poses.” Kaisner v. Kolb, 543 So.2d 732, 735 (Fla.1989). Thus, “[a]s to duty, the proper inquiry for the reviewing appellate court is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.” McCain, 593 So.2d at 504.

Id. at 1036-37 (emphasis in original); see also Whitt v. Silverman, 788 So.2d 210, 216-17 (Fla.2001).

We adopt the following reasoning of the circuit court that to impose a duty on Pompano Motor

to investigate the source of funding from [Financial Federated], to make sure there was no misappropriation involved, would be expecting them to discover a massive fraud operation. The government, investors, and creditors all were unable to discover this massive fraud. In fact, the fraud went unnoticed until [Financial Federated] was unable to meet its financial obligations. As such, it is untenable to think that Pompano [Motor] should have discovered the fraud. Given the fact that Mr. Brandau and Mr. Rassulo were in a fiduciary relationship with [Financial Federated], it would be probable that they would act in good faith with respect to the company’s funds, but it was only “possible” that they would act in bad faith. Foreseeable consequences are not what might possibly occur, rather, they are consequences that are probable. [Citation omitted]. Inasmuch as Mr. Bran-dau and Mr. Rassulo were both authorized to purchase the vehicles with a company check, it would be reasonable for Pompano [Motor] to title the vehicles in the names they designated. A purchaser of a vehicle should be able to title the car in the name of the recipient when the vehicle is a gift; or for any other legitimate purpose....

AFFIRMED.

POLEN and KLEIN, JJ., concur.

      . " 'Insured’ means, you, your partners, employees, directors or shareholders, but only while acting within the scope of their duties.”

      . " 'Title Paper Preparation' means, the preparation of official title papers for registering an 'auto' sold by an 'insured', including the designation of a lienholder who holds financial interest in the 'auto.' ”

      . " 'Suit' means any civil proceeding in which: 1. Damages because of 'bodily injury', or 'property damage'; or 2. A 'covered pollution cost or expense’, to which this insurance applies, are claimed. 'Suit' includes:
      a. An arbitration proceeding in which such damages or 'covered pollution costs or expenses' are claimed and to which the 'insured’ must submit or does submit with or consent; or
      b. Any other alternative dispute resolution proceeding in which such damages or 'covered pollution costs or expenses' are claimed and to which the insured submits with our consent.”

      . "Trustee” is defined as "[o]ne who, having legal title to property, holds it in trust for the benefit of another and owes a fiduciary duty to that beneficiary.” Black's Law Dictionary 1519 (7th ed.1999).

      . In contrast, "equitable title” is title "that indicates a beneficial interest in property and that gives the holder the right to acquire formal legal title.” Id. at 1493.


author: STEVENSON, J.

text:
    Benjamin P. THOMAS and Alison Thomas, Appellants, v. The CHASE MANHATTAN BANK, as Trustee of IMC Home Equity Loan Trust 1997-7 Under the Pooling and Servicing Agreement Dated as of November 1, 1997; Conseco Finance Servicing Corporation f/k/a Green Tree Financial Servicing Corporation; and Wells Fargo Financial Bank, Appellees.
    Nos. 4D03-3324, 4D04-814.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.

      James A. Bonfiglio, Boynton Beach, for appellants.
    Deborah Caventer and Mark Broderick of Echevarria & Associates, P.A., Tampa, for appellee The Chase Manhattan Bank, etc.
   STEVENSON, J.

In this mortgage foreclosure action, we have for review an order striking the defendants’ pleadings and granting summary judgment for the plaintiff based on the defendants’ untimely response to a request for admissions. We reverse.

Six months after receiving plaintiff, The Chase Manhattan Bank’s, request for admissions, defendants, Benjamin and Alison Thomas, filed their response. Despite the fact that the response had long been overdue, Chase Manhattan had not filed a motion to compel a response nor had the trial court entered an order to that effect. Nonetheless, the trial court sanctioned the defendants by striking their pleadings and affidavit and granted Chase Manhattan’s second motion for summary judgment. On appeal, the defendants challenge the court’s sanction and the resulting summary judgment.

First, we find that the trial court abused its discretion in failing to grant the Thomases’ rule 1.370(a) motion for relief from untimely response to request for admissions. The affidavit in opposition to summary judgment clearly contradicted the technical admissions and Chase Manhattan failed to show “prejudice” within the meaning of the rule. See Ramos v. Growing Together, Inc., 672 So.2d 103, 104 (Fla. 4th DCA 1996).

Second, the sanction of dismissal was too harsh and legally inappropriate for the failure to timely comply with the request for admissions. An express written finding of a party’s willful or deliberate refusal to obey a court order to comply with discovery is necessary to sustain the sanction of dismissal or default against a noncomplying party. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990); see also Lahti v. Porn, 624 So.2d 765 (Fla. 4th DCA 1993)(reversing dismissal with prejudice where trial court failed to make a specific finding that counsel’s failure to comply with an order was willful or that such failure resulted in prejudice to defendants). Where a party has never been instructed by the court to comply with any discovery request, sanctions for noncompliance are inappropriate. See Stoner v. Verkaden, 493 So.2d 1126, 1127 (Fla. 4th DCA 1986). Here, there was no order compelling compliance.

Thus, for the reasons stated, the trial court abused its discretion in striking the Thomases’ pleadings and affidavit. We, therefore, reverse the resulting summary judgment.

REVERSED and REMANDED.

STONE and HAZOURI, JJ., concur.

      . The trial court found that the pleadings and affidavits filed by the Thomases created material issues of law or fact, thereby precluding the court from granting Chase Manhattan's first motion for summary judgment. See Ramos v. Growing Together, Inc., 672 So.2d 103 (Fla. 4th DCA 1996); see also Mahmoud v. King, 824 So.2d 248 (Fla. 4th DCA 2002).

      . While it is within the discretion of the trial court to impose sanctions, those sanctions must be commensurate with the violation. See Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979).


author: MAY, J.

text:
    Warren MOORE, Appellant, v. Edward H. McCLUSKEY, William Barnett, and Paul Lovito, Appellees.
    No. 4D03-3190.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.

      Alan Dagen of Law Offices of Alan Da-gen, P.A., Fort Lauderdale, for appellant.
    No appearance filed for appellees.
   MAY, J.

A trial court’s reaction to the plaintiffs request for an extension of time to serve one of three defendants resulted in the dismissal of the plaintiffs complaint. The plaintiff argues that the trial court abused its discretion in dismissing the action. We agree and reverse.

On July 9, 2002, the plaintiff filed a complaint against Edward H. McCluskey, William Barnett, and Paul Lovito for breach of fiduciary duty, breach of duty of loyalty, and fraud. On November 4, 2002, the plaintiff filed a motion for extension of time of 60 days to serve the complaint. He alleged that at least one defendant had been served, and that the process server was attempting to serve the other two defendants. The plaintiff asked for more time in case they were not served within the requisite 120 days. See Fla. R. Civ. P. 1.070(j). On November 4, 2002, the trial court gave the plaintiff sixty days in which to serve the complaint.

On April 30, 2003, the trial court set a case management conference for May 27, 2003. On June 30, 2003, the plaintiff filed a motion to serve the third defendant, Lovito, by publication. He alleged that he had served both McCluskey and Barnett, but his previous attempts to serve Lovito had been unsuccessful. The process server had gone to Lovito’s residence “over 10 times” without locating him.

The plaintiff attached an affidavit from the process server attesting to these facts. The process server’s affidavit indicated that he had spoken with Lovito’s mailman who told him that Lovito and the “LBI Group” moved on a regular basis. The mailman had come across Lovito and the group on different routes. According to the mailman, Lovito never stayed anywhere for longer than two months, and the landlords were also looking for him. The plaintiff alleged that he had exhausted his efforts, which included checking public records, the telephone directory, and using two process servers.

On July 8, 2003, the trial court entered an order sua sponte dismissing the plaintiffs complaint. It noted that on May 27, 2003, it had ordered the plaintiff to effectuate service within 30 days. The court added in the order of dismissal that “[u]pon failure to comply, this case is hereby dismissed.”

Florida Rule of Civil Procedure 1.070(j), as amended in 1999, provides that

[i]f service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time of service for an appropriate period.... A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).

Fla. R. Civ. P. 1.070(j) (emphasis added).

This court has previously recognized that the rule

is not intended to be a trap for the unwary, nor a rule to impose a secondary statute of limitations based on time of service. The results would be harsh in a system where great emphasis is placed on deciding cases justly on the merits. We instead understand the rule to be an administrative tool to efficiently move cases through the courts ... The idea of rule 1.070(j) is not to throw up arbitrary temporal barriers for serving process on a defendant who is avoiding service.

Gary J. Rotella & Assocs. v. Andrews, 821 So.2d 468, 469-70 (Fla. 4th DCA 2002) (quoting Sneed v. H.B. Daniel Constr. Co., 674 So.2d 158, 159 (Fla. 5th DCA 1996)).

The trial court properly exercised one of the rule’s three options when presented with the plaintiffs first motion to extend the time to effect service on Lovito. .Several months passed and the court held a case management conference. At that time, the court gave the plaintiff 30 days to effect service on Lovito. While this might be considered a reasonable period of time in the usual case, the extraordinary extent of Lovito’s evasiveness continued to provide good cause to either extend the time or drop the defendant as a party. The court erred in dismissing the entire case given these facts.

The order dismissing the complaint is reversed and the cause remanded for reinstatement of the complaint and proceedings consistent with this opinion.

FARMER, C.J., and POLEN, J.„ concur.

      . The form order the trial court entered on May 27, 2003 is not in the record, but the plaintiff states in his initial brief that it was entered at the status conference.


author: PER CURIAM.

text:
    S.S.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3065.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, and Adrienne Sampson, Certified Legal Intern, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

As the State properly concedes, a written probation order must conform with the trial court’s oral pronouncements at sentencing. We thus reverse and remand for the limited purpose of correcting the written order of probation to reflect the trial court’s oral pronouncements, which in this case means that the probation order should reflect that the curfew of 8:00 p.m. does not apply if the juvenile is working past that hour.

Reversed and remanded.


text:
    Linda PAYNE, Appellant, v. FLA. DEPT OF CHILDREN & FAMILY SERVICES, etc., Appellee.
    No. 3D03-1740.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.
    Linda Payne, in proper person.
    Sandra Piligian, District 11 Legal Counsel, for appellee.

      Before COPE, GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

Linda Payne appeals from a final administrative order requiring her to reimburse the Department of Children & Families (Department) for the overpayment of aid for dependent children (AFDC) benefits. We affirm.

In the instant case, Payne received cash assistance benefits from the Florida Department of Children & Families in the sum of $1,080 as a result of Department error. Payne had cared for the child in question since birth, but was not blood related to the child. This made her ineligible for benefits. Pursuant to the Florida Statutes, Florida Administrative Code and the Code of Federal Regulations, the Agency is required to recoup these over-payments. See Willis v. Dept. of Children & Family Serv., 735 So.2d 585 (Fla. 3d DCA 1999); see also Lewis v. State, Dept. of Health & Rehabilitative Servs., 659 So.2d 1255 (Fla. 4th DCA 1995). As in Willis, we find that Ms. Payne must reimburse the Department for the erroneous payment of benefits.

Although we must affirm the Department’s final order, we acknowledge that the Department has caused the error, and that Ms. Payne will now have to repay the Department at a time when she is struggling to provide for the minor child for whom she is serving as a legal guardian. As we did in Willis, we pause to sympathize with Ms. Payne and believe that her frustration with the situation created by the Department is well founded.

Affirmed.


text:
    Clifford CLINE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1066.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.
    Clifford Cline, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, FLETCHER and RAMIREZ, JJ.
   PER CURIAM.

Clifford Cline appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a).

The trial court denied the motion because it was not verified. There is, however, no requirement for verification for a Rule 3.800 motion. See Fla. R.Crim. P. 3.800(a); Raley v. State, 675 So.2d 170, 172 (Fla. 5th DCA 1996); Judge v. State, 596 So.2d 73, 76-77 (Fla. 2d DCA 1991) (en banc); see also Braun v. State, 789 So.2d 1250, 1251 n. 1 (Fla. 4th DCA 2001).

Accordingly we reverse the order and remand for further consideration by the trial court. We express no opinion on the merits of the Rule 3.800 motion.

Reversed and remanded for further proceedings consistent herewith.


text:
    STATE of Florida, Appellant, v. Warren LOVETT, Appellee.
    No. 1D03-3189.
    District Court of Appeal of Florida, First District.
    June 18, 2004.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for appellant.
    Nancy A. Daniels, Public Defender; Robert S. Friedman, Assistant Public Defender, Tallahassee, for appellee.
   PER CURIAM.

In light of the decision in State v. Harris, 29 Fla. L. Weekly S230, — So.2d -, 2004 WL 1064790 (Fla. May 13, 2004), we reverse and remand for consideration of the State’s petition to commit appellant as a sexually violent predator. See also Murray v. Regier, 872 So.2d 217 (Fla. 2002).

ERVIN and BOOTH, JJ„ SMITH, LARRY G., Senior Judge, concur.


author: VILLANTI, Judge.

text:
    Christopher Renard LEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1136.
    District Court of Appeal of Florida, Second District.
    June 18, 2004.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Christopher Lee appeals the trial court’s'' denial of his presentenee motion to withdraw his plea. Lee argues that the trial court should have ruled on his motion before sentencing him. For the reasons discussed below, we agree and therefore reverse and remand with directions to grant Lee’s motion to withdraw his plea.

Pursuant to a negotiated plea agreement, Lee entered a plea of no contest to five counts of cocaine sale, cocaine possession, and driving while his license was suspended or revoked. The trial court accepted Lee’s plea and granted his request to defer sentencing for thirty days. During that thirty-day period, Lee filed a motion to withdraw his plea, claiming that he had been coerced by his mother and his attorney. The trial court set the motion for hearing on the same day as sentencing. However, Lee failed to appear, and a capi-as was issued for his arrest. He was eventually arrested and appeared for sentencing before a substitute trial judge. The substitute judge refused to hear the pending motion to withdraw the plea because it was not on the calendar and sentenced Lee. Lee filed another motion to withdraw his plea, and the trial court finally held a hearing. At the hearing, the trial court denied Lee’s motion, saying, “[I]f he had come in prior to sentencing and said, T don’t want this, I want my trial,’ I would have let him withdraw the plea, because I generally do.... [H]e didn’t show up, so that was his benefit of the bargain.”

When a defendant files a motion to withdraw a plea before sentencing under Florida Rule of Criminal Procedure 3.170®, the trial court must either deny the motion for facial insufficiency or grant an evidentiary hearing to develop the facts surrounding the entry of the plea. See Caddo v. State, 806 So.2d 520, 521 (Fla. 2d DCA 2001). The trial court here did neither. Instead, the court sentenced Lee without ruling on the pending motion. The Seventh Circuit has considered the dangers of proceeding to sentencing before ruling upon a timely motion to withdraw a guilty plea, warning that there would be an “appearance of prejudgment” by the court and that “it [would] not be humanly possible to judge the motion by the correct standard.” United States v. Bell, 572 F.2d 579, 581 (7th Cir.1978). This warning proved true in Lee’s case. The trial judge who finally heard Lee’s motion to withdraw his plea was not able to judge the motion by the correct standard — the pre-sentence “good cause” standard of rule 8.170(f) rather than the postsentence “manifest injustice” standard of rule 3.170(i). See Iaconetti v. State, 869 So.2d 695, 699 (Fla. 2d DCA 2004) (holding that a defendant who files a motion to withdraw a plea after sentencing has the burden of proving manifest injustice). Instead, the court said, “if he had come in prior to sentencing ... I would have let him withdraw the plea.” The trial court clearly understood that there is a more permissive standard for plea withdrawal before sentencing but applied the higher postsen-tencing standard.

Rule 3.170(f) clearly contemplates that motions filed before sentencing will also be ruled upon before sentencing. Lee’s motion alleging coercion was timely filed, ten days before his sentencing hearing. Lee raised his desire to withdraw his plea again before sentencing by the substitute judge. Lee was entitled to the presen-tencing standard. Because the trial court said that it would have granted Lee’s motion if it had considered the motion before sentencing, as it should have, we reverse and remand with directions to vacate the judgment and sentence and to grant Lee’s motion to withdraw his plea.

Reversed and remanded.

WHATLEY and COVINGTON, JJ., concur.


author: CANADY, Judge.

text:
    Michael MURPHY, Sr., Appellant, v. SARASOTA OSTRICH FARM/RANCH, INC., and Christina Shook, Appellees. Christina Shook, Cross-Appellant, v. Sarasota Ostrich Farm/ Ranch, Inc., Cross-Appellee.
    Nos. 2D02-5576, 2D03-1356.
    District Court of Appeal of Florida, Second District.
    June 18, 2004.

      Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for Appellant.
    Andrew H. Cohen of Hankin, Persson, Davis, McClenathen & Darnell, Sarasota, for Appellee Sarasota Ostrich Farm/ Ranch, Inc.
    Daniel Joy of Law Office of Daniel Joy, Sarasota, for Appellee/Cross-Appellant Christina Shook.
   CANADY, Judge.

Michael Murphy, Sr., and Christina Shook, the defendants in a tort action, appeal a final judgment and postjudgment award of costs against them in favor of Sarasota Ostrich Farm/Ranch, Inc. (the Ostrich Farm). Because the evidence adduced at trial did not establish that Murphy and Shook caused certain of the damages on which the judgment was based, we reverse the final judgment in part and affirm the award of costs.

The suit against Murphy and Shook by the Ostrich Farm was based on allegations that two dogs, Taz and Bear, caused death or injury to certain ostriches owned by the Ostrich Farm. At trial, testimony was presented concerning incidents in which the dogs entered the property of the Ostrich Farm to harass and prey on the ostriches. It was established that Shook was the owner of the dogs. The relationship between Murphy and the dogs was disputed, but the evidence showed that the dogs were kept — except when they wandered about the neighborhood — on property owned by Murphy. The Ostrich Farm asserted a claim against Shook and Murphy under section 767.01, Florida Statutes (2000), for liability as owners of the dogs. A claim based on negligence was asserted against Murphy.

The special verdict form shows that the jury determined that the dogs caused injury or death to the ostriches owned by the Ostrich Farm. The jury also determined that Murphy was not an owner of the dogs but that his negligence was a legal cause of the damages suffered by the Ostrich Farm. The jury awarded the Ostrich Farm (a) $3840 in damages for the death of yearlings; (b) $424 for “scarred hides”; and (c) $52,000 for “lost bird production for the 2001 breeding season.”

Murphy and Shook raise a number of issues as grounds for reversing the judgment against them. None of the issues related to the award of damages for the death of yearlings or the scarred hides has merit. The defendants have, however, raised a meritorious issue with respect to the award for lost bird production for the 2001 breeding season. We conclude that the portion of the judgment related to the lost bird production must be reversed because the evidence adduced at trial did not establish that the depredations of the dogs was a legal cause of the harm for which the damages were awarded.

At trial, the Ostrich Farm relied on the expert testimony of Clarence Dunning, a doctor of veterinary medicine, to establish that the entry of the dogs into the ranch property and the resulting harassment of the ostriches caused a reduction in bird production. Dr. Dunning gave extensive testimony concerning the impact of environmental conditions and living circumstances in the breeding of ostriches. He testified that a male ostrich can be stressed to the point where he will not breed even if he is not physically impacted by the stressor. He stated:

[I]f there are things there that make them uncomfortable, if dogs come in there, if people come in, if the traffic is too high, if you have lawn mowers coming by, anything that the animal might react to, then you have to evaluate ... what he’s responding to and what stresses him. And if something is stressing them and they feel they had to defend their territory, they’re not going to breed.

At no point in his testimony, however, did Dr. Dunning state that the stress to the ostriches arising from the incidents in which Taz and Bear were involved more likely than not was a substantial factor in bringing about any loss in production suffered by the Ostrich Farm. It is clear from Dr. Dunning’s testimony that Taz and Bear may have had something to do with the reduced production of ostriches. Such testimony is not, however, sufficient to establish the element of legal causation on which the Ostrich Farm’s tort claim must be based.

“[T]his evidence at best raises a mere possibility of legal causationf] and nothing more.” Greene v. Flewelling, 366 So.2d 777, 781 (Fla. 2d DCA 1978). “It has long been held that a[p]ossibility of causation is not sufficient to allow a claimant to recover.” Id. Under Florida law, a tort claimant must meet the “more likely than not standard of causation.” Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984).

“[A plaintiff] must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough[,] and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”

Id. (quoting Prosser, Law of Torts § 41 (4th Ed.1971) (footnotes omitted)).

Here, there is no “ ‘reasonable basis for the conclusion that it is more likely than not that the conduct’ ” for which the appellants were responsible “ ‘was a substantial factor in bringing about’ ” the lost bird production. Id. Based on the testimony at trial, the jury could do nothing more than speculate about the issue of causation. The defendants therefore were entitled to a directed verdict on the issue of lost bird production. Accordingly, the award of damages for lost bird production is reversed.

Affirmed in part, reversed in part, and remanded.

VILLANTI, J., and SEXTON, SUSAN, Associate Judge, concur.


author: FULMER, Judge.

text:
    Ennis Leonard ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3254.
    District Court of Appeal of Florida, Second District.
    June 18, 2004.

      J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Ennis Leonard Rogers challenges his conviction and sentence for aggravated battery. We affirm Rogers’ conviction without discussion, but reverse Rogers’ sentence and remand for resentencing.

Rogers was charged by information that alleged:

On or about June 14, 2002 in Lee County, Florida, [Rogers] did unlawfully commit a battery upon Tony Peterson, Jr., by actually and intentionally touching or striking said person against said person’s will or by intentionally causing bodily harm to said person, and in committing said battery, did intentionally or knowingly cause great bodily harm, permanent disability, or permanent disfigurement to the said Tony Peterson, Jr., or did use a deadly weapon, to wit: a firearm, contrary to Florida Statute 784.045; 775.087(2)(a)(3)....

(Emphasis added.)

After a bench trial, the trial court announced the following verdict:

The court finds the defendant, Ennis Rogers, guilty as charged of Aggravated Battery With a Firearm or Causing Great Bodily Harm.
The court further finds that during the commission of this offense the defendant, Ennis Rogers, possessed a firearm and discharged the firearm and as a result of the discharge, great bodily harm was inflicted upon a person Tony Peterson.

(Emphasis added.)

Rogers was sentenced to life imprisonment pursuant to section 775.087(2)(a)(3), Florida Statutes (2001), which provides for an enhanced sentence when a person discharges a firearm during the commission of an enumerated felony and thereby inflicts serious bodily harm. The State concedes that the trial court erred by enhancing Rogers’ sentence because the information alleged that Rogers “did use” a firearm but it did not allege that he “discharged” the firearm.

The grounds for enhancement of a sentence must be charged in the information. See Jackson v. State, 852 So.2d 941, 944 (Fla. 4th DCA 2003), review denied, 869 So.2d 540 (Fla.2004). An allegation of “use” of a firearm will not sustain an enhanced sentence under section 775.087(2)(a)(3), because a firearm may be used to inflict serious bodily injury without being discharged, and the statute requires that the weapon be discharged for the enhancement to apply. See Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002). Furthermore, neither the trial court’s finding that Rogers discharged the firearm nor the inclusion of the statute number in the information cures the defect in the information. See id.; Koch v. State, 874 So.2d 606 (Fla. 5th DCA 2004).

Accordingly, we affirm Rogers’ conviction, reverse the sentence, and remand for resentencing.

COVINGTON and WALLACE, JJ„ Concur.


text:
    Romeo WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1554.
    District Court of Appeal of Florida, First District.
    June 18, 2004.
    Romeo Ward, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Because petitioner fails to show that he has made an express, distinct demand for performance to the circuit court, we deny the petition for writ of mandamus. See Medberry v. Circuit Court for Brevard County, 762 So.2d 1037 (Fla. 5th DCA 2000).

BARFIELD, DAVIS and BENTON, JJ., concur.


text:
    John SHIRLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2144.
    District Court of Appeal of Florida, Second District.
    June 18, 2004.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Sr. Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm John Shirley’s convictions and sentences but remand for correction of scriveners’ errors in the sentencing documents, each of which reflects that the court had “previously entered a judgment in this case on 1/1/1900.”

Affirmed; remanded for correction of scriveners’ errors.

CASANUEVA, STRINGER, and SILBERMAN, JJ., Concur.


text:
    Marlene HASTINGS, Appellant, v. John Steen RIGSBEE, Appellee.
    No. 2D03-3547.
    District Court of Appeal of Florida, Second District.
    June 23, 2004.

      Robert L. Donald of Law Office of Robert L. Donald, and William T. Haverfield of Pavese, Haverfield, Dalton, Harrison <& Jensen, L.L.P., Fort Myers, for Appellant.
    Cary Alan Cliff of Faerber Lanier Deifik Cliff & Ross, P.A., Naples, for Appellee.
   CANADY, Judge.

Marlene Hastings appeals an order of the trial court that modified the custody and visitation arrangements for her three-year-old child. The trial court’s order was based on the recommendations of a parenting coordinator. Because the trial court abused its discretion by entering this order, we reverse.

I. BACKGROUND

The order on appeal was entered as part of a paternity action that Mrs. Hastings initiated in February of 2001. In December of 2001, the parties reached a settlement agreement in which the respondent, John Steen Rigsbee, admitted paternity. The settlement agreement also made Mrs. Hastings the primary residential parent and set forth a visitation schedule for Mr. Rigsbee. A final order of paternity was entered that adopted and incorporated the settlement agreement. Mr. Rigsbee also separately agreed to pay $500 per month in child support to Mrs. Hastings.

In April of 2001, prior to the settlement agreement, the parties were having difficulty agreeing to matters related to their minor child. These difficulties resulted in a heated argument between the two parties in this case. As a result of this dispute, the trial court entered an order appointing Justine Healan as “parenting coordinator.”

Although the initial appointment of the parenting coordinator was not objected to by either party, Mrs. Hastings subsequently developed a strained relationship with the coordinator. In August of 2001, Mrs. Hastings filed a motion to change the parenting coordinator, alleging that a “conflict of interest” had arisen between herself and the coordinator. This motion was denied. In August of 2002, Mrs. Hastings filed another motion seeking the removal of the parenting coordinator, alleging that the parenting coordinator was “openly hostile towards [Mrs. Hastings], [had made] unreasonable financial demands upon her, and [had] lost her objectivity and neutrality.” This motion was also denied.

The events that led to the order oh appeal occurred in May of 2003. Mrs. Hastings filed an emergency motion after Mr. Rigsbee refused to return the’parties’ child following a visitation. In response, Mr. Rigsbee filed a motion for temporary suspension of mother’s parenting schedule. This motion alleged that Mrs. Hastings had been the victim of domestic violence by her present husband on March 10, 2003, and alleged that one of Mrs. Hastings’ older children had been abused during the incident. The motion also stated that Mr. Rigsbee felt that he had been forced to withhold custody of the child because Mrs. Hastings had not provided proof that “the issues of domestic violence in her home had been resolved.” The motion also noted that Mrs. Hastings had failed to respond to communications by the parenting coordinator about the incident while Mr. Rigs-bee had been very cooperative with the coordinator.

Prior to the hearing on the motions, the parenting coordinator prepared a report on the domestic violence incident in the form of a letter addressed to the trial court. This report purported to reflect the content of the parenting coordinator’s interviews of a number of people and also included the parenting coordinator’s opinions regarding certain interviewees’ honesty. The report suggested that Mrs. Hastings’ husband, while intoxicated, engaged in disruptive behavior at a neighbor’s house. It alleged that he threw furniture around in a pool area at a neighbor’s house, let the air out of the tires of Mrs. Hastings’ vehicle, broke one of the windows of the vehicle, and had a physical struggle with Mrs. Hastings’ adult-sized minor son (not -the child at issue in this case) inside a neighbor’s house. The report stated that Mrs. Hastings’ husband was arrested for physically attacking Mrs. Hastings’ son. The report did not allege any significant injury to any person as a result of the incident.

The report also suggested that the domestic violence on March 10, 2003, was not an isolated incident, noting that the police were called to the residence on March 1, 2003, as well. The report, however, provided few details of the earlier alleged occurrence of domestic violence and did not allege that any arrests resulted from that call. The parenting coordinator claimed in the report that Mrs. Hastings had not cooperated with her investigation of that incident, making it difficult for the parenting coordinator to determine what happened.

The report reached a number of conclusions. It stated that the risk of domestic violence posed a serious threat to the safety of the three-year-old child and faulted Mrs. Hastings (and her neighbors) for minimizing the importance of the March 10, 2003, incident. It also effectively concluded that Mrs. Hastings’ contention that the March 10, 2003, incident was the first time that Mr. Hastings had demonstrated violent behavior was not credible. Additionally, notwithstanding the fact that there was no evidence that Mrs. Hastings had been struck by Mr. Hastings, the report criticized Mrs. Hastings for denying that she was a victim of domestic violence, stating that “everyone in the home” was victimized by the March 10, 2003, incident.

At the end of the report, the parenting coordinator provided a numbered list of six recommendations. The most significant recommendations are these:

1. Mrs. Hastings [should be required to] sign a release authorizing this coordinator to have full access to the results of her psychological testing that was performed in January 2003. If Mrs. Hastings does not sign a release[,] the court should order this report be release[d] to the parenting coordinator or the court. However, if the above recommendations are not viable then it is the recommendation of this coordinator that Mrs. Hastings be ordered by the court to have a complete psychological evaluation by Dr. Mary Ellen Frazier and the report be release[d] to this coordinator and the court. Mrs. Hastings shall undergo any further recommendations that are appropriate after the results of the psychological testing becomes available.
3. Mrs. Hastings shall seek and participate in appropriate counseling with a licensed mental health professionals [sic] who is trained in domestic violence and child protection. Mrs. Hastings shall sign releases so that this coordinator can monitor her counseling....
4. If Mr. and Mrs. Hastings continue with their relationship^] Mr. Hastings shall participate in appropriate domestic violence counseling from a licensed mental health provider. Mr. Hastings shall follow all the recommendations of his counselors. Mr. Hastings shall also sign a release of information so that this coordinator may communicate with his counselors....
6. [I]t is this coordinator's] recommendation that Mrs. Hastings have structured time with Jesse in order to reduce the risk of Mr. Hastings being present. This is designed to reduce the risk Jesse will be exposed to violence. However, this coordinator and [another parenting coordinator for Mrs. Hastings’ other children] are under the opinion that a one hour a week supervised visit at a facility is not ideal for this family. Therefore, this coordinator has developed a plan that would allow Mrs. Hastings to have time with Jesse in her home while monitoring the risk of Mr. Hasting[’]s being present. This plan will require the involvement and cooperation of Mr. Rigsbee, Mr. and Mrs. Hastings. Mr. and Mrs. Hastings must have a home where the telephone number is listed and no call forwarding is present on the telephone. I propose that Mrs. Hastings have structure[d] time with Jesse at her home from 9:00 a.m. until 6:00 p.m. on Tuesday, Thursday, and alternating Saturdays and Sundays. (Mrs. Hastings stated she does not work on Tuesday or Thursday.) Mr. Rigsbee shall be responsible to provide all the transportation. Mr. and Mrs. Hastings shall call this coordinator every hour on the hour from the telephone without call forwarding. They shall not block the telephone number from appearing on this coordinator[’]s caller ID. If this coordinator does not answer the telephone^] they shall leave a brief message on this coordinator's voice mail as to their present location. This will provide a record that both parents are at separate locations every hour. Additionally, Mr. and Mrs. Hastings agree that this coordinator or her office manager, Jill Stulak, may telephone or appear at the residences for random checks. In order for this plan to be executed[,] Mr. Rigsbee [and] Mr. and Mrs. Hastings shall need to sign an agreement with this coordinator's office. Mrs. Hastings must meet her previously [sic] financial responsibilities with this office and maintain a retainer every month. Additionally, if the agreements and or the court orders are not upheld this coordinator shall be able to immediately discontinue Jessefs] structured time in Mrs. Hastings[’] home. Further, this monitoring and the restrictions shall be revised as Mr. and Mrs. Hastingst’] progress in counseling and the risk to violence is reduced.

On June 4, 2003, two days after the date the report was prepared, the trial court held a hearing on the parties’ motions. Mrs. Hastings, Mrs. Healan, and Mr. Nichols (a prior husband of Mrs. Hastings) were called to testify.

Mrs. Hastings’ testimony was quite brief. She testified that there had been a physical struggle between her husband and her son. She was not asked about and did not explain the details of the incident. However, she acknowledged that her husband had been arrested and that he had been ordered not to contact her. She stated that she believed that there was no risk of harm to her three-year-old son if she regained custody of him. She also testified that she could not afford the supervised visitations and psychological evaluations proposed by the parenting coordinator. On cross-examination, she admitted that she was seeking to have the order against her husband lifted so that he could return to her home.

Mrs. Healan, the parenting coordinator, gave extensive testimony at the hearing. She testified that her report was the result of a request that she investigate the facts surrounding the motions that were being heard. Her testimony as to the March 10, 2003, incident largely mirrored that provided in the report. She did not claim to have any personal knowledge as to the incident, and Mrs. Hastings’ attorney objected that her testimony was being used as a conduit for hearsay. On cross-examination, the parenting coordinator admitted that she had originally refused to speak with Mrs. Hastings until unpaid bills were brought current and also admitted that she would be unwilling to supervise visitation until she was paid. She stated that she was not familiar with Mrs. Hastings’ financial circumstances.

Mr. Nichols testified that he was concerned about the presence of his children in Mrs. Hastings’ home based upon what he had heard at the hearing. Otherwise, the purpose of his testimony was unclear. He did not claim any significant personal knowledge as to any relevant event.

The trial court did not make any significant findings or pronouncements at the hearing. Following the hearing, the trial court entered a written order characterizing the parenting coordinator’s recommendations as “a reasonable temporary solution.” The order further stated that Mrs. Hastings’ “parenting time” would be “temporarily modified to the schedule and conditions contained in” the recommendations in the parenting coordinator’s report. The order also “cancelled” Mr. Rigsbee’s child support obligation to Mrs. Hastings and ordered that the $500 per month be paid towards the balance that Mrs. Hastings owed the parenting coordinator. The order further stated that “Mrs. Hastings may have the matter reviewed in sixty days, if she is participating in counseling (the [c]ourt recommends ACT), has made some reasonable payment on [the parenting coordinator’s] bill, and has otherwise cooperated with the [p]arenting [c]oordinator.” This appeal followed.

II. ANALYSIS

As the foregoing background shows, the issues in this case arise from the trial court’s appointment of a parenting coordinator, the subsequent performance of the parenting coordinator, and the trial court’s adoption of recommendations made by the parenting coordinator. We recognize that it is the practice of some trial courts to appoint parenting coordinators. We also recognize that section 61.20, Florida Statutes (2003), authorizes a trial court to order a “social study and investigation” in cases where child custody is in issue and that Florida Family Law Rule of Procedure 12.363 authorizes a trial court to appoint a mental health professional or other expert to conduct a home study investigation when visitation or residential placement of a child is in controversy. In the instant case, however, there is no indication that the parenting coordinator was appointed pursuant to either section 61.20 or rule 12.363.

Although there may be circumstances in which a parenting coordinator can appropriately assist a trial court in carrying out the court’s responsibilities, it is never appropriate for a parenting coordinator to act as a fact-finder or otherwise perform judicial functions. The overarching problem in this case is that the trial court effectively delegated its judicial authority to the parenting coordinator. Ultimately, the trial court permitted the parenting coordinator to act as the finder of fact and effectively subordinated the rights of Mrs. Hastings as a parent to the parenting coordinator’s claims for the payment of her fees.

Financial Conditions

A parent’s visitation rights may not be conditioned on the payment of the parent’s financial obligations, including the payment of child support. See Waugh v. Waugh, 679 So.2d 1, 3 (Fla. 2d DCA 1996) (holding that conditioning the husband’s visitation rights upon his payment of child support was improper); see also § 61.13(4)(a), Fla. Stat. (2003) (“When a noncustodial parent who is ordered to pay child support or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent’s visitation rights.”). Notwithstanding this well-established law, the trial court required Mrs. Hastings, prior to obtaining visitation with the child, to “meet her previously [sic] financial responsibilities with [the parenting coordinator] and maintain a retainer every month.” The financial obligation of Mrs. Hastings to the parenting coordinator is enforced by the parenting coordinator’s right to “immediately discontinue [the child’s] structured time in [Mrs. Hasting’s] home” in the event of nonpayment. Although the trial court suggested that it would consider reviewing its order in sixty days, it conditioned that review on Mrs. Hastings’ making “reasonable payment” to the parenting coordinator. It was an abuse of discretion for the trial court to condition the exercise of Mrs. Hastings’ custody rights on the payment of funds to the parenting coordinator.

Hearsay Testimony

The primary evidence relied upon by the trial court at the motion hearing was the report and testimony of the parenting coordinator. Because the parenting coordinator’s report and testimony were almost entirely hearsay, we conclude that this was error. Although expert witnesses are permitted to rely on hearsay evidence, such witnesses may not serve as a conduit for presenting that inadmissible evidence to the finder of fact. See, e.g., State v. DuPont, 659 So.2d 405 (Fla. 2d DCA 1995). In this case, the parenting coordinator set forth a summation of “facts” based upon her interviews with various individuals. She was the only source of detailed testimony as to the events of March 10, 2003, and admitted that her testimony reflected her assessment of the credibility of the various people she interviewed. This is exactly the type of testimony that Dupont and other cases like it seek to prevent.

Standard for Change of Custody

A party seeking modification of a final judgment awarding custody is required to meet an extraordinary burden— a much higher standard than would be required to obtain custody prior to final judgment. Gibbs v. Gibbs, 686 So.2d 639, 641 (Fla. 2d DCA 1996) (“The analysis in a modification proceeding is substantially different from when the initial child custody decision is made in the dissolution because the presumption in favor of the custodial parent in the modification proceeding can only be overcome by satisfying an extraordinary burden.”). There are two elements of the extraordinary burden test. First, the party seeking modification must “establish that circumstances have substantially changed since the final judgment.” Id. Second, it must be shown that “a change in custody will so clearly promote or improve the child’s well being ... that any reasonable parent would understand that maintaining the status quo would be detrimental to the child’s overall best interests.” Id. The extraordinary burden test applies whether the requested change of custody is temporary or permanent. Glover v. Glover, 820 So.2d 324, 325 (Fla. 5th DCA 2001).

In this case, there is no indication that the trial court even considered the order to be a change of custodial parent, much less applied the extraordinary burden test. Mr. Rigsbee’s motion requested a temporary suspension of Mrs. Hastings’ “parenting schedule.” The trial court’s order referred to this change as a “temporary suspension” of Mrs. Hastings’ “parenting time.” A modification of visitation rights is not subject to the extraordinary burden test. See Barrett v. Barrett, 862 So.2d 100, 101 (Fla. 2d DCA 2003). We conclude that this order, however, effected not a modification of visitation but a change in custody because it only permitted Mrs. Hastings, who previously had primary custody of the child, to have visitation with her child during the day for an average of three days a week. As a result of the order, Mr. Rigsbee functionally became the primary custodial parent. The trial court failed to apply the extraordinary burden test and thereby abused its discretion.

Psychological Records and Testing

The trial court’s order adopting the conditions set forth in the parenting coordinator’s report requires that Mrs. Hastings “sign a release authorizing [the parenting] coordinator to have full access to the results of her psychological testing that was performed in January 2003,” or, in the alternative, “have a complete psychological evaluation by Dr. Mary Ellen Frazier and [have] the report ... release^] to [the parenting] coordinator and the court.” The trial court erred in ordering compliance with these alternative requirements. There was not an adequate basis either for concluding that the psychotherapist-patient privilege under section 90.503 was waived or for compelling Mrs. Hastings to submit to a psychological evaluation.

In an action seeking custody, existing mental health records maintain their privileged status unless a sufficiently “calamitous event[]” (such as a recent commitment to a mental institution or a suicide attempt) puts the records “at issue” in the proceeding. Attorney ad Litem for D.K. v. Parents of D.K., 780 So.2d 301, 309 (Fla. 4th DCA 2001); see also McIntyre v. McIntyre, 404 So.2d 208 (Fla. 2d DCA 1981). Further, an independent psychological evaluation may only be required in limited circumstances. Id. at 209. “[B]efore any party may be ordered to undergo physical or psychological examination, the [party’s] condition must be ‘in controversy’ and ... ‘good cause’ for the examination must be shown.” Williams v. Williams, 550 So.2d 166, 167 (Fla. 2d DCA 1989); see Fla. R. Civ. P. 1.360; see also AD. v. Dep’t of Children & Family Servs., 870 So.2d 235, 237 (Fla. 2d DCA 2004).

In this case, the allegation that led to the change in custody was an accusation that Mr. Hastings had acted violently towards an adult-sized minor and had damaged some property. No misconduct or odd behavior was alleged on the part of Mrs. Hastings. There was no showing of any calamitous event that would justify waiver of the psychotherapist-patient privilege. There was no showing that Mrs. Hastings’ mental health was in controversy at all, and thus no good cause was established for requiring a psychological examination of Mrs, Hastings.

Requirements Imposed on Mrs. Hastings’ Present Spouse

The trial court adopted the parenting coordinator’s recommendation that Mr. Hastings be ordered to undergo counseling and “follow all the recommendations of his counselors.” Mr. Hastings, however, was not a party to the case, and consequently the trial court did not have jurisdiction over his activities. Silvers v. Silvers, 504 So.2d 30, 31 (Fla. 2d DCA 1987) (holding that “the trial court had no jurisdiction to order ... spouses [who were not parties to a dissolution case] to attend classes and counseling”).

III. CONCLUSION

We vacate the trial court’s order modifying custody of the parties’ child and remand for further proceedings consistent with this opinion.

Reversed and remanded.

STRINGER and SILBERMAN, JJ., Concur.

      . We also note that the financial demands of the parenting coordinator ($125 per hour) did not fit within the means of the mother, who has an income of approximately $1000 per month. Not surprisingly, given her relatively small disposable income, Mrs. Hastings accrued over time an overdue balance of more than $4000 for the parenting coordinator's services. The impact of the cost associated with the use of a parenting coordinator should be carefully considered by the trial court. See Higginbotham v. Higginbotham, 857 So.2d 341, 341 (Fla. 2d DCA 2003) ("If a judicial system is trying to reach a child placement decision in the best interest of the child, it is difficult to grasp how it is in the best interest of the child to deplete the resources of the family [through a costly parenting assessment].”). We further note that although Mr. Rigsbee’s financial affidavit suggests his income was almost twice that of Mrs. Hastings, it appears that Mrs. Hastings was responsible for half of the parenting coordinator's charges and Mr. Rigsbee was responsible for the other half.

      . We note that information contained in a study conducted pursuant to section 61.20 may be considered by a trial court and "the technical rules of evidence do not exclude the study from consideration.” This provision has no application in the instant case since the parenting coordinator was not acting under the authority of section 61.20.


author: WALLACE, Judge.

text:
    Deatrick S. BOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4698.
    District Court of Appeal of Florida, Second District.
    June 23, 2004.

      Deatrick S. Bolden, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Deatrick S. Bolden appeals the final order granting in part and denying in part his motion to return property. Because the trial court incorrectly placed the burden to prove ownership on Bolden, we affirm in part and reverse in part.

During a search of Bolden’s apartment, police officers seized a large number of items, many of which were later used as evidence in at least three criminal prosecutions against Bolden for burglary, theft, and related charges. The list of items seized was over thirty pages long.

On February 7, 2002, Bolden filed a motion to return property, but he did not list the items he sought to have returned. Instead, he moved for the return of all of the seized property that “is not contraband and has not and will not be used as evidence in his trials.” At a hearing on May 30, 2002, Bolden told the court that he intended his motion to encompass the thirty-page inventory of all the items seized, excluding the items held in evidence or claimed during the public showings conducted by the Fort Myers Police Department. In a ruling announced orally, the trial court denied Bolden’s motion without prejudice for Bolden to provide a specific list of the items he sought to have returned, together with an explanation of how each item was Bolden’s and not the fruits of criminal activity or belonging to someone else. In the trial court’s words: “[S]o just identifying it isn’t going to get it. I need to know when he bought it, where he bought it and how much he paid for it....”

On September 18, 2002, Bolden filed an amended motion to return property and attached a partial list of items that were “obviously” his. Bolden also announced his intent to appeal the trial court’s ruling that “he provide proof of ownership of all of the other items found in his apartment.”

On October 14, 2002, the trial court held a second hearing at which neither the State nor Bolden was present. Bolden’s counsel physically brought into the courtroom the items listed in Bolden’s amended motion, and the trial judge examined each item to see which items bore Bolden’s name or were otherwise obviously his. Filling more than twenty evidence bags, the items included jewelry, coins, pawn slips, and other papers. The trial court declined to return items such as money and a black leather bag because they were not obviously Bolden’s. The trial court also declined to return items such as pawn slips because Bolden could not show that they were not the fruits of criminal activity. The trial court did return items such as Bolden’s social security card and insurance card because they bore his name. In a written order, the trial court ruled that the motion was “[gjranted as to items which are readily identifiable to the Defendant (has his name on them)” and “[d]e-nied as to all other items.”

When a trial court assumes jurisdiction over criminal charges, it has inherent authority to assist the true owner in the recovery of property that has been seized from the defendant. Brown v. State, 613 So.2d 569, 570 (Fla. 2d DCA 1993); Coon v. State, 585 So.2d 1079, 1080 (Fla. 1st DCA 1991). When the defendant seeks the return of seized property as the true owner, the applicable procedure is similar to the procedure for the consideration of a motion for postconvietion relief. First, the defendant must file a facially sufficient motion for the return of property. Brown, 613 So.2d at 570. To be facially sufficient, the motion must allege that “the property at issue was his personal property, was not the fruit of criminal activity, and was not being held as evidence.” Durain v. State, 765 So.2d 880, 880 (Fla. 2d DCA 2000). Implicit in this standard is the requirement that the defendant must specifically identify “property at issue.” However, the defendant need not establish proof of ownership in order to allege a facially sufficient claim for the return of property. Stone v. State, 630 So.2d 660, 660-61 (Fla. 2d DCA 1994).

If the trial court finds that a motion to return property is facially sufficient, it may order the State to respond by citing applicable case law and attaching portions of the record to refute the defendant’s contention that the property should be returned, after which the motion may be summarily denied. Durain, 765 So.2d at 880-81. In the alternative, the trial court may hold an evidentiary hearing. At the evidentiary hearing, the trial court must first ascertain whether the property was confiscated by a law enforcement agency in connection with a criminal prosecution and whether the property is still in the agency’s possession. Stone, 630 So.2d at 661. If the State can show that the property was entered into evidence or that the State intends to pursue forfeiture against the property, the defendant is not entitled to have the property returned. Id. at 661. Similarly, the defendant is not entitled to have the property returned if the State intends in good faith to bring another criminal prosecution at which the items would be admissible in evidence. Oleandi v. State, 731 So.2d 4, 6 (Fla. 4th DCA 1999); Kern v. State, 706 So.2d 1366, 1370 (Fla. 5th DCA 1998). However, if the State is “unable to connect the items to specific criminal activity, and no one else can be identified who can demonstrate a superior possessory interest in the property, it should be returned to [the defendant] or to such person(s) as he may designate.” Stone, 630 So.2d at 661.

When the trial court first considered Bolden’s motion for return of property filed February 7, 2002, it could have denied the motion as facially insufficient because the motion did not specifically identify the property at issue. However, the trial court erred by requiring Bolden to assert facts proving ownership in his motion. In further proceedings that were not conducted in accordance with the procedure described above, the trial court continued to place the burden to prove ownership on Bolden.

Therefore, we reverse the order under review to the extent that it denied the return of items specified in the amended motion, and we remand for further proceedings. At a minimum, a new evidentia-ry hearing must be held on the balance of the items specified in the amended motion. Also, Bolden shall be granted leave to amend his motion to include additional items that were not listed in the amended motion. If Bolden amends his motion to assert a claim to such additional items that is facially sufficient and not refuted by the record, then the evidentiary hearing on remand shall include consideration of the additional items as well.

We address one final matter. Bolden complains that he was not personally present at some of the proceedings during which his motion was considered. Because consideration of a motion for the return of property is governed by procedures similar to those used in postconviction proceedings, general principles of postconviction relief govern the necessity for the defendant’s presence. A defendant is not entitled to be present as a matter of right; however, when “there are questions of fact within the defendant’s own knowledge which must be resolved, the defendant must be afforded the opportunity to testify and cross-examine witnesses.” Harrell v. State, 458 So.2d 901, 902 (Fla. 2d DCA 1984) (citing Alfonso v. State, 319 So.2d 49, 50 (Fla. 2d DCA 1975)). Accordingly, on remand, if the trial court can resolve Bolden’s motion under the proper standard without considering facts that are within Bolden’s knowledge, then Bolden need not be present.

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

SALCINES and COVINGTON, JJ., Concur.

      . Bolden v. State, 845 So.2d 193 (Fla. 2d DCA 2003) (table decision); Bolden v. State, 834 So.2d 164 (Fla. 2d DCA 2002) (table decision); Bolden v. State, 832 So.2d 153 (Fla. 2d DCA 2002).

      . The public defender represented Bolden in the proceedings below, which apparently occurred during the pendency of one or more of his criminal trials. Bolden appears pro se in this appeal after the public defender was allowed to withdraw on the ground that a criminal defendant is not entitled to public representation in a proceeding for the return of property.

      . Similarly, an appeal from a final order denying a motion for the return of property under these circumstances proceeds much like a postconviction appeal pursuant to Florida Rule of Appellate Procedure 9.141(b)(2). Stone v. State, 630 So.2d 660, 660 n. 1 (Fla. 2d DCA 1994); Butler v. State, 613 So.2d 1348, 1349 (Fla. 2d DCA 1993).

      .We do not suggest that a motion to return property must be under oath as is required of postconviction motions. "If [the defendant’s] facts are simply untrue, the motion may be summarily denied." Stone, 630 So.2d at 661.

      . If the items are not still in the law enforcement agency’s possession, the defendant must pursue a separate civil action against the agency that had possession. Brown, 613 So.2d at 571; Butler, 613 So.2d at 1350.


author: CASANUEVA, Judge.

text:
    CITY OF LAKELAND and the Claims Center, Appellants, v. Scott Dale STAPLETON and Crane Carrier Company, Appellees.
    No. 2D03-4095.
    District Court of Appeal of Florida, Second District.
    June 23, 2004.
    Dionne J. Ferguson of Ross, Vecchio & Trussell, P.A., Lakeland, for Appellants.
    John Marc Tamayo of Frost Tamayo Sessums & Aranda, P.A., Bartow, for Ap-pellee.
   CASANUEVA, Judge.

Scott Stapleton was severely injured in the course of his employment with the City of Lakeland. He received workers’ compensation benefits as a result of the accident, and he later sued and settled his claims against Crane Carrier Company, the manufacturer of the refuse truck on which he was working when he was injured. In the lawsuit against Crane Carrier, the City of Lakeland and the Claims Center, as employer and workers’ compensation carrier, filed a notice of lien for payment of compensation and medical benefits pursuant to section 440.39(3)(a), Florida Statutes (2002). After Mr. Stapleton settled his case against Crane Carrier, the trial court entered an order determining the equitable distribution of the employer/carrier’s lien, from which the City of Lakeland and the Claims Center have appealed. Because the circuit court erroneously refused to subject Mr. Stapleton’s future medical benefits to the lien, we reverse.

The circuit court found that the employer/carrier was entitled to a lien in the amount of $1484 “on the future indemnity proceeds” received by Mr. Stapleton. The employer/earrier has not disputed the amount of the lien, but it contends that the court erred when it limited its recovery to future indemnity proceeds and failed to subject the plaintiffs future medical benefits to its lien.

The plaintiff has conceded that the employer/carrier’s position has merit, and we agree. In City of Lakeland v. Morris, 627 So.2d 572, 573 (Fla. 2d DCA 1993), this court held, en banc, that the applicable statute, section 440.39(3)(a), “does not allow the trial court the discretion to exclude medical benefits and limit recovery of the workers’ compensation lien to only future indemnity benefits.” In so holding we agreed with the Fifth District’s decision in Tarmac of Florida/Liberty Mutual Insurance Co. v. Gwaltney, 604 So.2d 907 (Fla. 5th DCA 1992), and receded from our earlier decision to the contrary, Payless Oil Co. v. Reynolds, 565 So.2d 737 (Fla. 2d DCA 1990). At the plaintiffs urging, the circuit court in this case erroneously relied upon Payless.

Accordingly, we reverse the order determining equitable distribution of the lien and remand for entry of an order consistent with City of Lakeland v. Morris, 627 So.2d at 572.

Reversed and remanded.

STRINGER and SILBERMAN, JJ„ Concur.