author: CASANUEVA, Judge.

text:
    CARNIVAL CORPORATION, d/b/a, Carnival Cruise Lines, Appellant, v. Donna PURDY and John Purdy, Appellees.
    No. 2D02-1071.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.
    Curtis J. Mase and Beverly D. Eisen-stadt of Mase & Gassenheimer, P.A., Miami, for Appellant.
    Roger Vaughan, III, of Wagner, Vaughan & McLaughlin, P.A., and Raymond T. Elligett, Jr. of Schropp, Buell & Elligett, P.A., Tampa, for Appellees.
   CASANUEVA, Judge.

This case presents the same issue we recently decided in Norwegian Cruise Line, Ltd. v. Clark, 841 So.2d 547(Fla. 2d DCA 2003), where the trial court denied transfer of venue based on a forum selection clause in a form cruise ticket contract. In Norwegian, we joined the majority of jurisdictions to find that such clause is enforceable, despite the fact that the passengers only had a short time to reject the form ticket contract if the venue provision had been objectionable to them, but took the cruise nevertheless. The facts of this case do not distinguish it from Norwegian. Therefore, we reverse with instructions to transfer this case to the venue specified in the cruise ticket contract.

Reversed and remanded with instructions.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Antoine HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4145.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.
    Antoine Henderson, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Dismissed for lack of jurisdiction. See Wright v. State, 643 So.2d 1157 (Fla. 4th DCA 1994) and Campbell v. State, 637 So.2d 80 (Fla. 4th DCA 1994).

SHAHOOD, TAYLOR, and HAZOURI, JJ., concur.


text:
    Jerry GARY, Jr., Appellant, v. James CROSBY, Secretary, Florida Department of Corrections, State of Florida, Appellee.
    No. 4D03-645.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.
    Jerry Gary, Jr., Belle Glade, pro se.
    No response required for respondent.
   PER CURIAM.

AFFIRMED. See Fla. RApp. R. 9.315.

FARMER, STEVENSON and TAYLOR, JJ., concur.


text:
    Timothy ERLSTEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2461.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.
    Rehearing Denied May 7, 2003.

      Timothy Erlsten, Avon Park, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Following a jury trial, Appellant was convicted as charged of one count of aggravated kidnapping and one count of lewd and lascivious act on a child under sixteen. The third ground of his motion was that his trial counsel was ineffective for failing to make a contemporaneous objection to a sleeping juror. He alleged that he notified counsel in the course of the trial that the juror was sleeping through most of the trial and asked if the alternate could take her place, but counsel advised, “we’ll see” and did not raise the issue until after Appellant’s sentencing, in a motion for new trial, when he argued that Appellant effectively was convicted by a jury of five. Had counsel objected contemporaneously, Appellant argued, the alternate could have taken the sleeping juror’s place. He acknowledged it would be impossible to demonstrate how one juror’s inattentiveness affected the verdict, but insisted that counsel’s actions deprived him of a jury of six.

We agree with Appellant that raising the issue of a sleeping juror after the verdict is quite different from making a contemporaneous objection during trial; the fact that the issue of trial court error in denying the motion for new trial was preserved for appeal thus relates to an issue different from counsel’s alleged ineffectiveness in delaying to raise the matter. See generally Yates v. State, 26 Fla. 484, 7 So. 880, 884 (1890) (where counsel raised issue that juror was sleeping during trial in motion for new trial, appellate court would not interfere with discretion of trial court in overruling motion; however, the court also commented that “if the juror was sleeping, and that fact was at the time known to the accused or his counsel, it should have been brought to the attention of the court, but, failing to do so, the objection, if it could be called one, was waived ”) (emphasis added).

This court has previously reversed the summary denial of rule 3.850 motions in which the defendant alleged his trial counsel was ineffective in failing to object to a sleeping juror. See, e.g., Simo v. State, 790 So.2d 1190 (Fla. 4th DCA 2001); McGraw v. State, 796 So.2d 1205 (Fla. 4th DCA 2001); Kesick v. State, 448 So.2d 644 (Fla. 4th DCA 1984). Other courts have done so as well. See, e.g., Wilson v. State, 828 So.2d 1086 (Fla. 1st DCA 2002); Kelley v. State, 805 So.2d 88 (Fla. 2d DCA 2002). Counsel may have had strategic reasons for not seeking to replace the sleeping juror during the trial, but a trial court’s finding that a decision was tactical usually is inappropriate without an eviden-tiary hearing. See, e.g., Evans v. State, 737 So.2d 1167 (Fla. 2d DCA 1999) (citing Guisasola v. State, 667 So.2d 248 (Fla. 1st DCA 1995)).

Accordingly, we reverse the summary denial of this ground for either an eviden-tiary hearing or the attachment of portions of the record that conclusively refute this ground for relief. We affirm without discussion the summary denial as to the balance of the motion for post-conviction relief.

FARMER, GROSS and MAY, JJ., concur.


author: BROWNING, J.

text:
    James Bernard PLEAS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D01-0068.
    District Court of Appeal of Florida, First District.
    April 8, 2003.
    Nancy A. Daniels, Public Defender; and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

We affirm the Appellant’s convictions and sentences. However, we remand for correction of the written judgment and sentence in lower court case number 98-3154 to conform with the oral pronouncement of the sentence. See, e.g., Marshall v. State, 652 So.2d 974 (Fla. 1st DCA 1995). Specifically, we note that the written judgment and sentence must make reference to the fact that, on count two of that case, Appellant was sentenced as a prison releasee reoffender.

AFFIRMED and REMANDED for correction of written sentence.

BARFIELD and LEWIS, JJ., concur.


text:
    James WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4979.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.

      James Walker, Bonifay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals from the summary denial of his motion to vacate or correct illegal sentence. He argues that he was improperly designated as a habitual felony offender because his prior convictions used for such designation did not qualify as sequential convictions as they were all entered on the same day. We agree. See Bover v. State, 797 So.2d 1246, 1250 (Fla.2001) (“[Although the sentencing for separate convictions arising out of unrelated crimes can take place on the same day, the sentences cannot be part of same sentencing proceeding” in order to be considered “sequential” for purposes of habitualization) (citation omitted); Wainer v. State, 798 So.2d 885, 886 (Fla. 4th DCA 2001).

We reverse the summary denial of appellant’s motion and remand for re-sentencing in case numbers 95-13940 CF 10A, 95-15725 CF 10A, and 95-15726 CF 10A. On remand, the state may again seek sentencing as a habitual felony offender, subject to evidence of satisfactory predicate convictions. See Rich v. State, 814 So.2d 1207, 1208 (Fla. 4th DCA 2002); Cameron v. State, 807 So.2d 746, 747 (Fla. 4th DCA 2002); Wainer, 798 So.2d at 885.

POLEN, C.J., STONE and WARNER, JJ., concur.


text:
    Curtis J. KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0312.
    District Court of Appeal of Florida, First District.
    April 10, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 21, 2003, the Court has determined that the notice of appeal was not timely filed. See Griffis v. State, 593 So.2d 308 (Fla. 1st DCA 1992). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

DISMISSED.

DAVIS, BENTON and PADOVANO, JJ., concur.


author: ORFINGER, J.

text:
    Robert CLAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3213.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2003.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Robert Clayton appeals his conviction of robbery with a firearm and his designation as a prison releasee reoffender. Clayton contends that the weapon used during the robbery was not a firearm. He further contends that his classification as a prison releasee reoffender was improper because Chapter 99-188, Laws of Florida, was determined to be unconstitutional. We affirm.

At trial, the State’s firearms expert testified that the weapon Clayton used during the robbery was a Bulldog type revolver, manufactured in Belgium between 1878 and 1914. The weapon was designed to fire a .44 caliber Bulldog bullet, which is no longer commercially available, but which can be made by someone skilled in hand loading ammunition. The State’s expert also testified that the weapon Clayton used was designed to expel a projectile by the action of an explosive, and that with the proper ammunition, would fire.

Section 790.001(6), Florida Statutes (2000), defines a firearm to mean:

any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or 'any machine gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.

Clayton argues that because the firearms expert could not determine the precise make, model or serial number of the weapon and that ammunition could be made only by someone with skills and equipment he did not possess, the evidence was insufficient to prove he possessed a firearm. Clayton’s argument fails to consider that the definition of a firearm includes the frame of a firearm and does not require that the firearm be loaded or operable during the criminal episode. Mitchell v. State, 698 So.2d 555, 558 (Fla. 2d DCA 1997). To establish that a weapon is a “firearm,” the State need only prove that Clayton’s weapon was designed to, or could be readily converted to expel a projectile. Bentley v. State, 501 So.2d 600, 602 (Fla.1987). The fact that Clayton’s weapon was not loaded or that he lacked ammunition was irrelevant. Id. Accordingly, the evidence supports the jury’s conclusion that the weapon used by Clayton during the robbery was a firearm.

We also reject Clayton’s argument that he was improperly classified as a prison releasee reoffender. Clayton correctly observes that section 775.082(9)(d), Florida Statutes (2001), was found to be unconstitutional because Chapter 99-188, which enacted changes to section 775.082(9)(d), violated the single subject rule. See Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). However, as Clayton properly concedes, in Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), this court held that the enactment of Chapter 02-210, Laws of Florida, cured Chapter 99-188’s constitutional infirmity and applied retroactively. Accordingly, relying on Hersey, we reject Clayton’s argument, but in doing so recognize that our opinion conflicts with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003) (holding that the curative effect of Chapter 02-210 could not be applied retroactively, for to do so would violate the ex post facto clauses of the United States and Florida Constitutions). We certify conflict with Green and the following question of great public importance:

DOES CHAPTER 02-210, LAWS OF FLORIDA, RETROACTIVELY CURE THE SINGLE SUBJECT CONSTITUTIONAL INFIRMITY OF CHAPTER 99-188, LAWS OF FLORIDA?

AFFIRMED, QUESTION CERTIFIED.

THOMPSON, C.J. and SHARP, W., J., concur.


author: SHARP, W., J.

text:
    Armond BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1040.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2003.

      Larry H. Colleton of Larry H. Colleton, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Black appeals from his judgment and sentence for possession of cocaine. He was charged with delivery of cocaine within one thousand feet of a place of worship (count one); possession of cocaine within one thousand feet of a place of worship with intent to sell or deliver (count two); and resisting an officer without violence (count three). The evidence established that Black sold two pieces of alleged crack cocaine to an undercover officer, and another officer immediately chased him back to an apartment where Black was arrested. During a search incident to the arrest, another chunk of alleged cocaine fell out of Black’s pocket. Because the state commingled the alleged cocaine bits, before testing them, Black argues the trial court should have directed a verdict of acquittal in his favor. We affirm.

At the trial, the state’s expert witness, the chemist, testified she combined all of the alleged cocaine chunks into one bag (they had previously been separate packages) before randomly performing her test for crack cocaine on one of them. The state moved to admit the exhibit containing the combined pieces of cocaine into evidence. Defense counsel argued it should not be admitted and the court should enter a judgment of acquittal on the drug charges because the state could not prove the tested piece of cocaine was obtained from the sale incident or the arrest incident.

The trial court admitted the exhibit, but agreed with the prosecutor that the most the evidence established was one count of possession. The prosecutor elected to proceed on count two. The court granted Black’s motion for judgment of acquittal on count one and reduced the charge on count two to possession. The jury returned a guilty verdict on count two.

The fact that the chemist could not identify the piece of crack cocaine which was tested as having come from the sale to the undercover agent, or from the search incident to arrest is not fatal in this case. Black could have been found guilty of possession if he possessed the controlled substance at either time. See Lyons v. State, 807 So.2d 709 (Fla. 5th DCA 2002) (evidence was sufficient to convict defendant of trafficking in cocaine in an amount in excess of 400 grams, even though two bags of cocaine totaling 813.4 grams were commingled before they tested positive for cocaine); Collins v. State, 717 So.2d 186 (Fla. 5th DCA 1998), rev. denied, 729 So.2d 917 (Fla.1999)(state provided adequate proof that defendant possessed at least 28 grams of cocaine; officers discovered 30 to 40 small bags containing what appeared to be crack cocaine, the contents were commingled into a single bag and lab analyst testified she randomly tested rocks of suspected cocaine and found 196.5 grams).

Black also argues that the court erred in attempting to cure the variance between the information and the evidence by combining and reducing the charges to one of simple possession.

Florida Rule of Criminal Procedure 3.510(b) provides:

On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

Under this rule, the trial court may reduce the greater charge in an indictment or information to that charge which the evidence validly supports. Harris v. State, 650 So.2d 211 (Fla. 3d DCA), rev. denied, 660 So.2d 713 (Fla.1995).

In this case, the state’s evidence was insufficient to establish two separate charges of delivery of cocaine and possession of cocaine with intent to sell or deliver because the chemist commingled the substances. Nevertheless, the evidence was sufficient to establish Black possessed the tested cocaine during the sale transaction as alleged in count two, since at the time he had all of the alleged contraband in his possession. Thus the court properly entered a judgment of acquittal on the delivery charge and also properly reduced the charge of possession with intent to sell or deliver to simple possession. See State v. Clark, 538 So.2d 500 (Fla. 3d DCA), rev. denied, 545 So.2d 1369 (Fla.1989)(reduction of defendants’ charges from trafficking in heroin to possession of heroin was proper, where state’s chemist failed to test samples from each of the capsules in separate packages found on defendants to determine if total weight of randomly tested material contained enough heroin to violate trafficking statute).

AFFIRMED.

THOMPSON, C.J., and ORFINGER, J., concur.

      . § 893.13(6)(a), Fla. Stat.

      . § 893.13(1)(e) 1Fla. Stat.

      . § 893.13(1)(e)1., Fla. Stat.

      . § 843.02, Fla. Stat.

      . Possession is a lesser included offense of possession with intent to sell. Keene v. State, 600 So.2d 513 (Fla. 2d DCA 1992).


author: ALTENBERND, Chief Judge.

text:
    Kathleen RIVERS, Appellant, v. GRIMSLEY OIL COMPANY, INC., d/b/a Stop ‘N Shop Food Stores, Appellee.
    No. 2D02-2560.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
    Mark C. Menser of Viles Law Firm, P.A., Fort Myers, for Appellant.
    Patrick Carver of Carver & Fisher, and J. Rodney Runyons of Coward, Runyons & Cooley, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Kathleen Rivers appeals a final summary judgment entered in her action against her employer, Grimsley Oil Company, Inc. In the action, Ms. Rivers claimed she received psychological injuries as a result of a robbery, which she alleges Grimsley Oil could have prevented if it had not been negligent in providing security at her workplace. We affirm because Florida does not recognize a cause of action for negligent infliction of emotional distress under these circumstances, at least in the absence of a physical impact or injury.

Ms. Rivers was working alone in a gas station/convenience store owned by Grims-ley Oil in December 1998 when the store was robbed by a person armed with either a pistol or something that looked like a pistol. The store had been robbed two weeks earlier. Grimsley Oil had never installed a silent alarm system or other security measures at this store, even though such measures allegedly were common in its other stores.

The robber did not shoot or otherwise physically harm Ms. Rivers. However, the robbery emotionally traumatized Ms. Rivers and allegedly caused her serious psychological injury. She was treated by a physician who prescribed Xanax, Paxil, and Vistaril for post-traumatic stress disorder. The medications caused certain side effects including nausea, cramps, and confusion.

Ms. Rivers brought suit against her employer alleging that she had sustained a psychological injury with physical manifestations as a result of Grimsley Oil’s negligence. She claims that the robbery would not have occurred but for the negligence of Grimsley Oil in failing to install a silent alarm or other security measures.

Initially, Grimsley Oil moved to dismiss this action on the theory that the claim was barred by workers’ compensation immunity. That motion was denied because the legislature, in its definition of “an accident” for purposes of workers’ compensation, has not authorized a claim for “a mental or nervous injury due to stress, fright or excitement only.” See § 440.02(1), Fla. Stat. (Supp.1998). Thereafter, Grimsley Oil moved for summary judgment on the theory that this claim for negligent infliction of emotional distress was not recognized as an exception to the impact rule. The trial court agreed and entered a summary final judgment.

For reasons both historical and practical, the duties imposed under the law of negligence typically require the protecting party to exercise reasonable care to safeguard only the physical well-being of the protected party and the physical security of the protected party’s property. See Monroe v. Sarasota County Sch. Bd., 746 So.2d 580 (Fla. 2d DCA 1999) (noting that bodily injury or property damage is an essential element of a cause of action in negligence); Sandarac Ass’n v. W.R. Frizzell Architects, Inc., 609 So.2d 1349, 1352 (Fla. 2d DCA 1992) (same). To implement this “physical” restriction on the reach of negligence law, courts have developed certain doctrines designed to confine tort law within its traditional role. The most prominent of these doctrines are the economic loss rule and the impact rule. The economic loss rule seeks to limit recovery in negligence for injuries that are solely economic in nature and do not involve physical injury or damage to specific property. See, e.g., Monroe v. Sarasota County Sch. Bd., 746 So.2d 530. The impact doctrine usually requires that a plaintiff sustain some sort of physical impact in conjunction with the defendant’s negligence in order to maintain a claim.

The impact doctrine, although controversial, remains the law in Florida. See Gracey v. Faker, 837 So.2d 348 (Fla.2002). In exceptional circumstances, the courts have expanded the law of negligence to create special claims for economic or emotional injuries that occur in the absence of physical impact. See e.g., Moransais v. Heathman, 744 So.2d 973, 983-84 (Fla.1999) (creating malpractice claim for economic loss); Champion v. Gray, 478 So.2d 17 (Fla.1985) (creating narrow claim for emotional distress that results in physical injury). As a result of these cases, significant exceptions to the impact doctrine have developed.

The impact doctrine has no application to intentional torts because the duties created by these torts have never been restricted to the protection of physical person and property. In this case, Ms. Rivers did not allege that Grimsley Oil committed any intentional tort, such as an intentional infliction of emotional distress. See Metro. Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla.1985) (adopting § 46, Restatement (Second) of Torts (1965), defining claim for intentional infliction of emotional distress). By contrast, if the identity of the robber were known, Ms. Rivers could sue the robber for assault and recover both compensatory and punitive damages.

Within the realm of simple negligence, the exceptions to the impact doctrine are limited and specific. For example, if one has a psychological injury that results in significant discernable physical injury after witnessing an accident in which a friend or family member is physically harmed, a claim may be pursued. See Champion, 478 So.2d 17. If a professional who has a fiduciary relationship with the plaintiff violates a duty of confidentiality, the impact doctrine may not apply. See Gracey, 887 So.2d 348. If a doctor misdiagnoses a plaintiffs condition and this causes the plaintiff to undergo invasive medical treatment or suffer the physical effects of “prescriptions of caustic medication,” a claim can be pursued. See R.J. v. Humana of Fla., Inc., 652 So.2d 360, 364 (Fla.1995).

Ms. Rivers’ claim is not based solely on her status as an employee. She argues that any person in the store at the time of the robbery who suffered similar injuries should be entitled to recover from Grims-ley Oil based upon its alleged negligence in providing security. The precise issue presented is whether an invitee at a convenience store (1) who is traumatized by a robber but sustains no physical impact or physical injuries in the robbery, (2) who is diagnosed thereafter as suffering from post-traumatic stress disorder, and (3) who suffers some physical side effects from properly prescribed medication, may allege a cause of action in simple negligence against the store owner. In a somewhat similar case, the Third District has held that an invitee who is robbed at a motel has no claim for negligent infliction of emotional distress. See Ruttger Hotel Corp. v. Wagner, 691 So.2d 1177 (Fla. 3d DCA 1997).

Ms. Rivers argues that the exception to the impact doctrine created in R.J., 652 So.2d 360, applies to her injury because the medications she is required to take for her psychological injury have certain side effects. We conclude that the supreme court in R.J. did not intend to open the courts to all claims involving side effects from medications properly prescribed for correctly diagnosed psychological conditions. We can craft no limited and specific exception to the impact doctrine that would recognize a narrow class of claims like Ms. Rivers’. Given the Florida Supreme Court’s continued recognition of the viability of the impact rule and the rule’s importance in maintaining the traditional scope of negligence law, we are not convinced that this is an expansion of negligence law that this court should establish.

Affirmed.

SALCINES and SILBERMAN, JJ., Concur.

      . It is interesting to note, however, that if Ms. Rivers' claim did involve a physical impact, it would almost certainly be a claim under the workers' compensation system, and workers' compensation immunity would then bar this lawsuit. Thus, if Ms. Rivers' negligence claim were permitted to proceed, an employer would face greater liability for an emotional injury to its employee than it would for a physical injury.


author: DAVIS, Judge.

text:
    George SYLVESTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4375.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
   DAVIS, Judge.

George Sylvester appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

Sylvester entered a negotiated plea of guilty in three separate cases on December 30, 1996. All three cases were included on the same negotiated plea form and on one scoresheet. In case number 96-4612, Sylvester pleaded guilty to three counts of lewd and lascivious acts with a minor. He was sentenced as a habitual offender to four years’ incarceration to be followed by four years’ probation. In case number 96-06849, Sylvester was sentenced to four years’ probation for one count of grand theft. In 96-9856, he was placed on four years’ probation for one count of obtaining property with a worthless check. The probation sentences of the latter two cases were to run concurrently with each other and with the probationary portion of the sentence in case number 96-4612. The plea agreement further provided that Sylvester was to receive 369 days credit for time served.

After serving the incarcerative portion of his sentence, Sylvester was released to serve his probation. Subsequently, the trial court found that Sylvester had violated the terms of his probation and revoked the probation in each of the three cases. At resentencing, the trial court sentenced Sylvester to 106 months’ incarceration as a habitual offender in each case. Sylvester now challenges these sentences.

The trial court summarily denied Sylvester’s motion, which alleged a miscalculation of the credit due him for time he previously had served. The trial court, however, erred in two respects in denying Sylvester’s claim. First, the trial court found that the record supported the finding that Sylvester had received the appropriate prison credit for each case. However, the record in fact refutes that finding. Sylvester is entitled to have the credit for time spent in prison serving the sentence in case 96-4612 applied to the sentences in both of the other cases. See Tripp v. State, 622 So.2d 941 (Fla.1993). The judgments and sentences in 96-0649 and 96-09866 do not reflect the court’s awarding of such credit. Accordingly, the trial court erred in finding that Sylvester was not entitled to such relief.

Additionally, the trial court erred in finding that Sylvester was not entitled to further credit for time served in the county jail. Although the trial court acknowledges that the original plea agreement provided Sylvester with 369 days’ credit for jail time served, it recognized that at resentencing the sentencing judge recalculated the credit and awarded a lesser amount. The trial court concluded that the award reflected the actual time served and ruled that since Sylvester had violated his probation, the plea agreement was no longer controlling. This was error. See Bradley v. State, 727 So.2d 1001 (Fla. 4th DCA 1999). Sylvester is entitled to the 369 days credit negotiated in the plea agreement as well as credit for the time he spent in jail awaiting the violation of probation proceedings on each case. We therefore reverse and remand with instructions to the trial court to reconsider Sylvester’s motion in light of this opinion.

Reversed and remanded.

FULMER and CANADY, JJ., concur.


text:
    George W. FELDER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4134.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
   DAVIS, Judge.

George W. Felder appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm without discussion as to three of his sentences, but we address the three remaining sentences.

Felder claims that he was originally sentenced to probation in case numbers 89-18725, 89-18726, and 89-18727 but that when he violated his probation, he was sentenced as a habitual offender to prison terms in each case. He argues that in sentencing him to probation, the court chose to sentence him pursuant to the sentencing guidelines. Therefore, he claims that upon revocation of probation, he could not be sentenced as a habitual offender.

The record demonstrates that the court originally sentenced Felder to probation terms as a habitual offender in all three cases. Such a sentence is legal only when it has been imposed pursuant to plea negotiations. Pankhurst v. State, 796 So.2d 618 (Fla. 2d DCA 2001). In order to state a facially sufficient claim for relief under Pankhurst, a defendant must allege that the sentence was not imposed pursuant to plea negotiations. Lalone v. State, 807 So.2d 128 (Fla. 2d DCA 2002). Felder does not make such an allegation. Therefore, his claim is facially insufficient.

We affirm without prejudice to any right Felder may have to file a facially sufficient rule 3.800(a) motion raising the same claim. See id. Felder would be entitled to be resentenced under the guidelines if the record cannot demonstrate that he entered into a negotiated plea agreement with either the State or the trial court for his probation sentences. See Salters v. State, 840 So.2d 295 (Fla. 2d DCA 2003); Chaney v. State, 805 So.2d 1039 (Fla. 2d DCA 2002).

Furthermore, the doctrine of laches does not bar Felder from raising this claim. Laches is sustainable in a criminal case where there has been both a lack of due diligence on the defendant’s part in bringing forth the claim and prejudice to the State. Wright v. State, 711 So.2d 66 (Fla. 3d DCA 1998). Felder could not have stated a successful claim before Pankhurst and its progeny were decided; therefore, he did not lack due diligence in failing to raise this claim sooner.

Affirmed.

WHATLEY and NORTHCTJTT, JJ„ Concur.


author: SILBERMAN, Judge.

text:
    Susan Hartmann SWARTZ, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF MANATEE COUNTY, Respondent.
    No. 2D02-828.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.

      Susan Hartmann Swartz, pro se.
    Michael H. Rosen of Salem Saxon, P.A., Tampa, for Respondent.
   SILBERMAN, Judge.

Susan Hartmann Swartz seeks certiorari review of the trial court’s order awarding to her $7500 in legal fees for her representation of an indigent criminal defendant, instead of the higher amount that she had requested. Because the trial court’s failure to make required findings in support of the award was a departure from the essential requirements of law, we grant the petition.

Swartz was appointed to represent Alberto Oliva on various charges. Section 925.036, Florida Statutes (2001), provides that compensation of appointed counsel shall be at an hourly rate fixed by the chief judge or senior judge of the circuit in which the representation is provided. The statute also contains a schedule of the maximum fees for compensation of appointed counsel. Pursuant to an administrative order of the twelfth judicial circuit, fees for appointed counsel are compensated at the rate of $60 per hour. The administrative order acknowledges that the statutory fee cap may be exceeded in exceptional circumstances.

During her representation of Oliva, Swartz became concerned as to the amount of time that she had expended in the case and whether she would be fully compensated for her work. She filed a motion for status conference as to attorney’s fees and an alternative motion to withdraw. In the motion, Swartz requested permission to withdraw if there was to be any significant cut in the amount of fees for time already spent, or to be spent, on the case.

At a hearing, the trial court stated that it would use the $60 hourly rate provided for in the administrative order. The trial court reiterated that a statutory cap existed and if the fees requested by Swartz exceeded the cap, the trial court would consider the reasonableness of the amount of Swartz’s fees at the conclusion of the case. At this hearing, Swartz did not pursue her motion to withdraw from representation.

After the criminal case was resolved by a plea, Swartz requested compensation for fees of approximately $12,000 based on the total number of hours that she claimed to have expended in her representation and an hourly rate of $60. At a hearing, Swartz explained her time records and the work that she performed in the case. Counsel for the county objected to the request and challenged the reasonableness of certain of Swartz’s time entries. At the conclusion of the hearing, the trial court stated that the statutory cap for representation was $3,000 but that the cap should be exceeded. It then awarded a total of $7,500 in fees to Swartz. Although the trial court indicated in the first hearing that it would use an hourly rate of $60, neither the order awarding fees nor the transcript of the fee hearing reflects the rate that was actually used, and the trial court made no findings as to the reasonable number of hours that Swartz expended in representing Oliva.

Swartz correctly notes that court-appointed counsel may challenge an order awarding attorney’s fees by petition for writ of certiorari. Sheppard, & White, P.A. v. City of Jacksonville, 827 So.2d 925, 928 n. 3 (Fla.2002). The applicable standard of review is whether the trial court departed from the essential requirements of law. Id. In her petition, Swartz argues that the trial court departed from the essential requirements of law by not awarding to her the full amount that she had requested.

In awarding fees pursuant to section 925.036, Florida Statutes (2001), the trial court must make findings that appointed counsel reasonably expended a certain number of hours in representing the indigent client, and then, using the established hourly rate, it must compute the fee. Monroe County v. Garcia, 695 So.2d 823, 826 (Fla. 3d DCA 1997); Weinstein v. Palm Beach County, 588 So.2d 329 (Fla. 4th DCA 1991). Because the trial court’s order and the record do not reflect the necessary findings, we grant the petition and remand with directions that the trial court make the necessary findings and recalculate the fee award consistent with this opinion.

Petition granted and case remanded.

FULMER and WHATLEY, JJ., Concur.

      . This opinion should not be read as commenting in any manner on the merits of Swartz’s claim that she should have been awarded additional attorney’s fees.


text:
    Talvia D. STILL, Appellant, v. WHITE CONSTRUCTION COMPANY, Appellee.
    No. 1D03-0467.
    District Court of Appeal of Florida, First District.
    April 15, 2003.

      Talvia D. Still, pro se, appellant.
    Ganesh Chatani of Fowler, White, Boggs & Banker, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. Coca Cola Foods v. Cordero, 589 So.2d 961 (Fla. 1st DCA 1991).

DAVIS, VAN NORTWICK and POLSTON, JJ., concur.


author: HAWKES, J.

text:
    Alma Lillian BRIDGES, Appellant, v. Joel Robert BRIDGES, Sr., Appellee.
    No. 1D02-2141.
    District Court of Appeal of Florida, First District.
    April 15, 2003.
    Allison E. Folds, Esquire of Folds & Walker, Gainesville, for Appellant.
    Kathleen C. Fox, Esquire of Kathleen C. Fox, P.A., Alachua, for Appellee.
   HAWKES, J.

Appellant (the former wife) appeals the termination of her permanent alimony award of $1,800.00 per month. Appellant argues there was insufficient evidence on which the trial court could find a significant change in circumstances justifying the termination of alimony. We modify the judgment to award alimony in the amount of $1.00 per month. We affirm in all other respects.

I

The original final judgment of dissolution of marriage entered on June 7, 1985, ended the parties’ marriage of twenty-years and, at issue in this case, awarded Appellant $1,800.00 per month as permanent alimony until she remarried or died. Appellee (the former husband) filed a supplemental complaint for termination or modification of alimony, alleging Appellant was cohabitating with Mr. Thomas Barker in a “de facto” marriage arrangement. Although not legally married, in August of 1992, Appellant and Barker participated in a ceremony in which they exchanged vows and rings. At the conclusion of the ceremony, the couple was presented as “partners in life.”

The trial court found cohabitation, and that Appellant and Barker provided financial support to each other. The trial court also considered Appellant’s current needs, the resources available to Appellant, and the resources Barker had available for Appellant’s support.

II

Appellant argues, and we agree, that Florida law does not recognize “de facto remarriage” as a basis for terminating court ordered alimony. See DePoorter v. DePoorter, 509 So.2d 1141, 1144 (Fla. 1st DCA 1987). However, unmarried cohabitation raises a presumption of changed circumstances. Id. For cohabitation to be sufficient to warrant a finding of changed circumstances, the court must consider whether either of two factors is present: whether the cohabitant provides support to the recipient spouse, or whether the recipient spouse contributes to the support of the cohabitant. Id. at 1145; Maclaren v. Maclaren, 616 So.2d 104, 106 (Fla. 1st DCA 1993).

At least in the First District, this presumption means that once the party seeking modification establishes cohabitation and shows support to or from the cohabitant, a significant change in circumstances is established, and the burden of proof shifts to the recipient spouse to show continued need. See Lee v. Lee, 544 So.2d 1083, 1088 (Fla. 1st DCA 1989). The burden of proof shifts because evidence of the recipient spouse’s economic situation “is peculiarly within his or her knowledge and may not be readily available to the payor spouse.” Id. (citations omitted).

Contrary to Appellant’s allegations of increased need, the trial court found the evidence showed decreased expenses, that Appellant had significant individual resources, and that Barker was willing and able to support Appellant. The trial court concluded Appellant failed to meet her burden of proof to show continued need for alimony.

Ill

We conclude the trial court’s findings of fact were supported by competent, substantial evidence. However, “[t]he voluntary contribution of a live-in companion cannot be equated with the legal obligation of a [spouse or] former spouse.... ” Long v. Long, 622 So.2d 622, 624 (Fla. 2d DCA 1993). Therefore, an award of nominal alimony should have been made to protect Appellant’s interests should she experience a significant change in circumstances. See Blanchard v. Blanchard, 793 So.2d 989 (Fla. 2nd DCA 2001); Ellis v. Ellis, 699 So.2d 280 (Fla. 5th DCA 1997).

AFFIRMED AS MODIFIED.

ALLEN, C.J. and BENTON, J., concur.


author: WOLF, J.

text:
    Ralph RAYBURN, Appellant, v. ORANGE PARK MEDICAL CENTER, INC. d/b/a Orange Park Medical Center, University of Florida Jacksonville Physicians, Inc/Board of Regents of the State of Florida, Dean C. Lohse, M.D. and Northeast Florida Neurosurgery, P.A., Appellees.
    No. 1D02-0796.
    District Court of Appeal of Florida, First District.
    April 15, 2003.
    Kimberly L. Boldt of Angelo, Barry & Boldt, P.A., Fort Lauderdale; and Silva & Silva, P.A., Coral Gables, for appellant.
    Jeptha F. Barbour, Sonya H. Hoener, and Susan K. Curtis of Marks Gray, P.A., Jacksonville, for appellees.
    Ronald Harrop of Gurney & Handley, P.A., Orlando, Amicus Curiae for University of Florida Board of Trustees and University of South Florida Board of Trustees.
   WOLF, J.

Appellant, Ralph Rayburn, challenges a final summary judgment in favor of Orange Park Medical Center (OPMC) in a medical malpractice action. The summary judgment was granted based on the application of section 240.215, Florida Statutes (1999), which immunized hospitals from vicarious liability as a result of actions of employees or agents of the Board of Regents (BOR). We find that the notice provided to patients by OPMC failed to comply with the requirements of the statute. OPMC was, therefore, not entitled to the benefit of the statute. We reverse the summary judgment in favor of OPMC and remand to the trial court for further proceedings.

Appellant filed a complaint for medical malpractice against OPMC and other defendants. In the complaint, appellant alleges that OPMC was vicariously liable for the negligence of Dr. David A. Caro, the emergency room physician who first saw appellant on arrival on April 11, 1999. Rayburn alleged specifically that Dr. Caro was an employee or agent of OPMC. Alternatively, he alleged that Dr. Caro was an employee of the Board of Regents or of the University of Florida. Appellant did not allege in his complaint any independent acts of negligence by OPMC.

The hospital asserts that appellant was given a form entitled “Orange Park Medical Center Conditions of Admission” at the time of his admission into the emergency room. The alleged malpractice occurred at that time and during a subsequent admission at which it is alleged that appellant’s mother was given the same form.

The admission form is critical because the trial court granted summary judgment on the basis of section 240.215, Florida Statutes (1999), which in pertinent part stated as follows:

240.215. Payment of costs of civil action against employees or members of the Board of Regents.
(2) An employee or agent under the right of control of the Board of Regents who ... renders medical care or treatment at any hospital ... with which the Board of Regents maintains an affiliation agreement ... shall not be deemed to be an agent of any person other than the Board of Regents in any civil action resulting from any act or omission of the employee or agent while rendering said medical care or treatment. For this subsection to apply, the patient shall be provided separate written conspicuous notice by the Board of Regents or by the hospital or health care facility, and shall acknowledge receipt of this notice, in writing, unless impractical by reason of an emergency, either personally or through another person authorized to give consent for him or her, that he or she will receive care provided by Board of Regents’ employees and liability, if any, that may arise from that care is limited as provided by law....
(5) Failure of the Board of Regents or an affiliated health care provider to do any act authorized by this section shall not constitute a cause of action against the Board of Regents, or an affiliated health care provider, or any of their members, officers, or employees.

(Emphasis added.)

This section has not previously been interpreted. However, under the clear and plain language of the statute, for a hospital to be immune from a vicarious liability claim (i.e., a finding that the BOR employee is not its agent) the following conditions precedent were required to be satisfied:

1. Notice provided to the patient by the hospital or BOR which was separate, unitben, and conspicuous; warned the patient that he or she would receive care provided by Board of Regents’ employees; and stated that liability, if any, which might arise from that care was limited as provided by law.
2. Acknowledgment of this notice, made in writing (unless a writing is impractical because of an emergency) by the patient themselves or by another person authorized to give consent for the patient.

The admission form provided to appellant and his mother was the following:

Orange Park Medical Center
Conditions of Admission
CONSENT FOR TREATMENT: The patient’s care is under the control of his/her attending physicians, and the undersigned consents to any x-ray examination, laboratory procedure, anesthesia, medical or surgical treatment or hospital services considered necessary or advisable in the judgement of and rendered under the general and special instructions of the physicians. (Separate informed consent will be obtained for all invasive procedures). I recognize that all physicians furnishing services are not employees nor agents of the hospital. I am aware that the practice of medicine and surgery is not an exact science and I acknowledge that no guarantees have been made to me as to the result of treatments or examinations performed in this hospital by the physicians of their assistants/designees.
RELEASE OF INFORMATION: I authorize Orange Park Medical Center to release any and all information regarding my diagnosis(es) and treatment as may be required by Federal/State Statute and/or regulatory agencies and as may be necessary for payment of my hospital and physicians’ claims for this hospitalization. I hereby release the above named hospital and aforementioned physicians from any legal liability that may arise from the release of said information.
PERSONAL VALUABLES: It is recommended that valuables and personal items such as glasses, hearing aids, dentures, clothing, money, etc., be sent home with a family member or deposited in the hospital’s safe. I understand that by choosing to keep them in my possession while in the hospital as a patient, I hereby release Orange Park Medical Center and its employees from any liability that may be incurred from loss or damage.
SPECIMEN/TISSUE AND STUDENT CARE RELEASE: I understand there may be students participating in my care and that these students are under the supervision of their instructors and/or the hospital’s professional staff. These students are affiliated with the local community colleges and/or county vocational training agencies and are not employees or agents of this hospital. I also authorize this hospital or members of its attending staff to retain, preserve and use for scientific or teaching purposes, or dispose of at their convenience and in their sole discretion, any specimens of tissues removed from my body, and I waive any interest I may have or have had in such specimens or tissues.
NOTICE OF LIMITED LIABILITY AS REQUIRED BY SECTION 240.215, FLORIDA STATUTES: Some of the physicians furnishing services within this hospital are employees/agents of the Florida Board of Regents. Pursuant to § 768.28, any liability that may arise from their care/treatment is limited to $100,000 per claim or judgement by any one person and to $200,000 for all claims or judgements arising out of the same incident or occurrence.
ASSIGNMENT OF INSURANCE BENEFITS: I hereby authorize direct payment to the hospital of any benefits provided under any Health Care plan, medical expense policy, or motor vehicle insurance, otherwise due or payable to me or on my behalf, provided such amount shall not exceed the hospital’s charges. In the event I am entitled to benefits payable for physician services, these benefits are hereby assigned to the physicians, who will bill separately for their services. I understand that I am ultimately personally responsible to this hospital and my treating physicians for charges not paid by an insurance company unless the hospital and physicians are otherwise contracted.
I FURTHER UNDERSTAND THAT IF I HAVE REASON TO BELIEVE THIS FACILITY IS NOT IN COMPLIANCE WITH THE STATE’S ADVANCE DIRECTIVES REGULATIONS, I CAN FILE A COMPLAINT WITH THE AGENCY FOR HEALTH CARE ADMINISTRATION.

We find the statutory notice provided by the form is neither separate nor conspicuous as required by section 240.215.

Section 240.215 limited the common law doctrine of agency and apparent agency with regard to physicians who were employed by the Florida Board of Regents and worked in hospitals. Statutes altering the common law must be narrowly construed. Allstate Ins. Co. v. Rudnick, 761 So.2d 289, 293 (Fla.2000). Thus, failure to give the appropriate statutory notice would result in waiver of the immunity provided by statute. In Schur v. Florida Birth-Related Neurological, 832 So.2d 188 (Fla. 1st DCA 2002), this court addressed the issue of when a notice requirement is a condition precedent to limiting medical malpractice liability under the Neurological Injury Compensation Act (NICA). There, this court held that the specific notice requirements of section 766.316, Florida Statutes (1997), were not satisfied, and therefore, the doctor was not entitled to immunity. There this court stated,

[S]ection 766.316 requires “[e]ach hospital with a participating physician on its staff and each participating physician” to provide notice, (emphasis added). The plain language of this section shows an intention that the NICA plan immunizes a physician only when he or she provides notice. See M.W. v. Davis, 756 So.2d 90, 101 (Fla.2000) (stating that statute should be given its plain meaning where the statutory language is clear and unambiguous); Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826, 830 (Fla. 1st DCA 1996). As Dr. Boyd was not employed by North Florida OB/GYN, she was required to give separate notice of her participation in the NICA plan, which she failed to do. Because the Legislature, in clear and unambiguous terms, required that each participating physician must provide notice of participation in the NICA plan, we conclude that Dr. Boyd’s failure to give such notice was not harmless. Therefore, Dr. Boyd was not entitled to immunity under the NICA plan. Accordingly, we reverse.

Id. at 192 (Emphasis in original).

Section 766.316 as interpreted in Schur establishes that proper notice be given as a condition precedent to invoking immunity. “The purpose of the notice is to give [a] patient an opportunity to make an informed choice between using a participating [physician] or using one who is not a [plan] participant ... thereby reserving [the patient’s] civil remedies.” Schur, 832 So.2d at 192. The purpose of section 240.215 was similar. Thus section 240.215, like section 766.316, requires proper notice as a condition precedent to invoke immunity-

Under section 240.215, the notice must be separate, written, and conspicuous. However, section 240.215 fails to define the terms “separate” and “conspicuous.” When a statute fails to define a term, “the court may resort to a dictionary definition to determine the 'plain and ordinary meaning’ of the statutory language.” Allstate, 761 So.2d at 292. The American Heritage Dictionary defines “separate” as “[t]o set or keep apart; disunite .... [t]o differentiate or discriminate between; distinguish.” American Heritage Dictionary 1118 (2d College ed. 1991). The American Heritage Dictionary defines “conspicuous” as “[e]asy to notice; obvious.... Attracting attention by being unusual or remarkable.” Id. at 314. The notice in the instant case is included in one of six identically laid out paragraphs; the paragraphs are equally spaced; there is no border; nothing distinguishes one paragraph from any other on the page. There appears to be nothing in the admission form to make it separate or conspicuous.

The legislative intent to assure that patients are aware of the status of the medical personnel who are treating them has not been met, and we are required to find that OPMC is not entitled to the benefits of the statutory immunity. The summary judgment is reversed.

BOOTH and KAHN, JJ., concur.

      . Section 240.215 was repealed effective January 7, 2003. Ch.2000-321, § 3(7), at 3545, Laws of Fla.

      . We are not unmindful of the hospital’s arguments about the difficulty of complying with the statutory requirements in emergency situations. Those arguments are more properly made to the legislature.


author: KAHN, J.

text:
    Charles Joseph DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2381.
    District Court of Appeal of Florida, First District.
    April 15, 2003.
    Nancy A. Daniels, Public Defender, and Anne H. Dunlap, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Appellant, Charles Joseph Davis, challenges his conviction and sentence imposed after a jury found him guilty of strong arm robbery. In particular, Davis argues that the trial court erred by ruling that an incriminating statement he made was an admission not subject to exclusion under section 90.410, Florida Statutes, and Florida Rule of Criminal Procedure 3.172(a). We agree and, accordingly, reverse and remand this case for a new trial.

Davis, charged with robbery and theft, made the statement at issue while he was in court for a pretrial “rocket docket” arraignment hearing. Defense counsel, the prosecutor, and the judge discussed with Davis the question of a negotiated plea:

MRS. BELLER [defense counsel]: Mr. Davis. Your Honor, Mr. Davis was offered a robbery, second degree, and also a ...
MR. GRAMMER [prosecutor]: Grand theft.
MRS. BELLER: Third degree for retail theft. He was offered two years community control, three years probation. He’s declined that plea. We would transfer him to the trial division, and that would be Ann Riehle.
THE COURT: Let me make sure you understand what’s happening, Mr. Davis. The, at this point in time the State and you can negotiate back and forth. It’s still up to the Court to agree to go along with whatever you negotiate, but once it gets past the point of that, then the issue becomes the jury determining your guilt or innocence of the charge, and if they come back and say you’re guilty, then I tell you what your sentence is because I do not negotiate. All right?
MRS. BELLER: Okay, do you understand that if you were found guilty at trial of the robbery, you could receive 15 years in prison?
THE DEFENDANT: Oh, I already told you I was guilty of that, but the grand theft, no, no, no.

(emphasis added). No agreement came about and Davis proceeded to trial.

The State subsequently filed a pretrial motion requesting the court to find Davis’s statement admissible, as an admission under section 90.803(18), Florida Statutes. During the hearing on the motion, Gram-mer testified that he heard the conversation at issue and, at the time, he had not extended a plea offer and the statement was not made in the course of any plea negotiation. Grammer described the context of the statement:

[I]t was a conversation between Ms. Bel-ler and the defendant which, Ms. Beller was intentionally putting it on the record. And it’s fairly typical to put that information on the record to, in case the person is convicted later they can’t say their lawyer didn’t ever tell them what was going on.

Defense counsel argued that the statement should be excluded because “clearly there was a plea offer discussed in some form or fashion” and “this was in the context of a ... plea offer.... ” The court observed that the question asked by counsel, which resulted in the alleged admission, “normally would call for a yes or no answer” and Davis’s statement “really is not responsive to the question.... ” The court granted the State’s motion.

The State introduced the statement at trial through Grammer’s testimony. Defense counsel objected, and the court adhered to its earlier ruling:

THE COURT: Again, the question that was asked, and I have to go back to the context of the question. Do you understand if you’re found guilty at trial you will receive 15 years in prison calls for a yes or no answer. The defendant’s response was not responsive to the question, it is an admission type of thing. It is, in a sense, nonresponsive. It is his statement. It is not really in the context of a plea negotiation. It was just spontaneous, almost a spontaneous type of statement being made. So I still feel it is an admission. I’ll note the defendant’s objection and overrule that objection, allow it to come into evidence.

On appeal, Davis argues that his statement was made in connection with plea negotiations and, therefore, the trial court erred in allowing the statement into evidence as an admission. Davis asserts that his statement indicates he did not want to go to trial on the robbery charge, he did not want to face 15 years in prison, and he had already told defense counsel he was guilty of the robbery (so he would plea to it) but not grand theft. Davis asserts that “[i]n light of [his] ‘actual, subjective expectation to negotiate a plea at the time of the discussion’ and the fact that his ‘expectation was reasonable given the totality of the objective circumstances,’ the trial court reversibly erred in allowing [his] statements into evidence.” See Richardson v. State, 706 So.2d 1349, 1353 (Fla.1998); United States v. Robertson, 582 F.2d 1356 (5th Cir.1978).

In Richardson, the Florida Supreme Court set forth the following analysis for determining whether statements should be excluded as made in connection with a plea offer:

At issue is Florida Rule of Criminal Procedure 3.172(h), which states that:
Except as otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.
In construing which statements fall within the ambit of the exclusion, we have adopted the two-tiered analysis used in United States v. Robertson, 582 F.2d 1356 (5th Cir.1978).... In the first step of the analysis, the trial court must determine “whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion.” Robertson, 582 F.2d at 1366. In applying the first prong, the trial court must carefully distinguish between the accused’s admissions and the accused’s attempts to negotiate a plea bargain. In other words, the trial court “must appreciate the tenor of the conversation.” Id. at 1367. From there, the trial court must then discern “whether the accused’s expectation was reasonable given the totality of the circumstances.” Id. at 1366.

706 So.2d at 1352-53. In this case, the trial court did not expressly apply this two-tiered analysis, but in effect gave the statements at issue the consideration required by that analysis. Regarding the first prong, the court examined “the tenor of the conversation,” as required by Richardson and Robertson, as it specifically analyzed the context of the question. Regarding the second prong, given the court’s characterization of Davis’s answer as nonresponsive, the court at least implicitly concluded that his expectation was not reasonable under the circumstances.

We find, however, that the judge, at the very least, revived the plea negotiations by telling Davis this was the time to negotiate. Just prior to the judge’s statement that “at this point in time the State and you can negotiate back and forth,” defense counsel indicated that the State had offered Davis two years of community control and three years of probation. Davis’s statement was directly responsive to the judge’s invitation to negotiate, and his expression of guilt is completely consistent with his desire to induce the State to negotiate a sentence involving some jail time but no probation. Davis thus made the statement at issue as part of ongoing plea negotiations. In so finding, we note the fairly broad scope of the applicable criminal rule and statute, section 90.410. See § 90.410, Fla. Stat. (2000) (“Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 831.” (emphasis added)); Richardson, 706 So.2d at 1355-56 (“Rule 3.172(h) and section 90.410, Florida Statutes (1991), prohibit the admission of statements given during plea negotiations. The rule and the statute do not require that a bargain be completed or that a written agreement be signed.... [T]he question here is not whether the statement was given as part of a specific written agreement thereby entitling the defendant to the benefit of his bargain; rather, the question is whether the statement was given during the repeated and ongoing plea negotiations between Richardson and the government. On this record, we find that it was. Therefore, under the rule and our case law, any confession obtained under such circumstances is inadmissible at trial.” (footnotes omitted)).

Because we conclude that Davis’s statement was improperly admitted at trial, and we cannot conclude that the admission of this statement was harmless, we REVERSE and REMAND for a new trial.

BOOTH and WOLF, JJ„ concur.


text:
    Sylvester STARLING, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1188.
    District Court of Appeal of Florida, First District.
    April 15, 2003.
    Nancy A. Daniels, Public Defender; Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Karen M. Holland, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, J.

Appellant challenges his conviction for sale or delivery of cocaine. He alleges that the trial court committed fundamental error in failing to instruct the jury on the essential knowledge element for sale or delivery of cocaine as required by Chicone v. State, 684 So.2d 736 (Fla.1996). The only issue raised during trial was that appellant was not the person who sold the cocaine.

In Davis v. State, 839 So.2d 734 (Fla. 4th DCA 2003), reh’g denied, 839 So.2d 734 (Fla. 4th DCA 2003), the Fourth District found no fundamental error in a similar set of facts:

Chicone requires that, where a defendant requests it, the jury must be instructed that the defendant have knowledge that the substance is illegal. In this case the instruction was not requested, but defendant argues that it was fundamental error not to give it. Because guilty knowledge was not an issue in this case, in that the only position taken by the defendant was that he was not the person who sold the cocaine to the informant, any error in not giving a guilty knowledge instruction would not rise to the level of fundamental error. State v. Delva, 575 So.2d 643 (Fla.1991). We therefore affirm.

Id.

As in Davis, defense counsel argued the identification was unreliable; guilty knowledge was not an issue at trial. Thus, any error in not giving the guilty knowledge or Chicone instruction, did not rise to the level of fundamental error.

Affirmed.

BOOTH and KAHN, JJ., concur.

      . Knowledge of the illicit nature of a controlled substance is no longer an element of the offenses of possession, or sale or delivery of a controlled substance for offenses committed after May 13, 2002. Section 893.101, Florida Statutes (2002). Appellant committed his offense prior to the effective date of section 893.101. See Norman v. State, 826 So.2d 440 (Fla. 1st DCA 2002) (holding section 893.101 cannot be applied retroactively).


text:
    DUVAL COUNTY SCHOOL BOARD, Appellant, v. Scott KEBERT, Bernice English Duhart, and Tommy G. McDowell, Appellees.
    No. 1D03-0740.
    District Court of Appeal of Florida, First District.
    April 15, 2003.
    J. David Kerce, of J. David Kerce, P.A., Daytona Beach, for Appellant.
    Chobee Ebbets, Daytona Beach; Daniel I. McCranie, Fernandina Beach, for Appel-lees.
   PER CURIAM.

Upon consideration of the Duval County School Board’s response to this court’s order of March 3, 2003, the court has determined that the order on appeal is a non-appealable, non-final order. See Amendments to Florida Rules of Appellate Procedure, 780 So.2d 834, 863 (Fla.2000) (noting, in the Committee Note to the 2000 amendments to Florida Rule of Appellate Procedure 9.130, that “[subdivision (a)(3)(C)(iv) allowing review of orders determining ‘the issue of liability in favor of a party seeking affirmative relief was deleted so that such orders are not appealable until the conclusion of the case”). Accordingly, the court lacks jurisdiction, and the appeal is dismissed.

The court treats the Board’s response as invoking the court’s certiorari jurisdiction, and its petition is denied. See generally Brown & Williamson Tobacco Corp. v. Carter, 680 So.2d 546 (Fla.' 1st DCA 1996).

ERVIN, WEBSTER and HAWKES, JJ., concur.


author: VILLANTI, Judge.

text:
    Robert Donald HUTTO, Appellant/Cross-Appellee, v. Holly Denise HUTTO, Appellee/Cross-Appellant.
    No. 2D02-1234.
    District Court of Appeal of Florida, Second District.
    April 16, 2003.

      Jesse J. Bennett, Jr. of Hall & Bennett, Winter Haven, for Appellant/Cross-Appel-lee.
    Mark A. Sessums of Frost, Tamayo, Sessums & Aranda, P.A., Bartow, for Ap-pellee/Cross-Appellant.
   VILLANTI, Judge.

Robert Donald Hutto appeals from the final judgment of dissolution of marriage. He argues that the alimony award to his former wife, Holly Denise Hutto, was excessive and contained a savings component in contravention of established law. Mrs. Hutto cross-appeals the denial of her request for attorney’s fees. We affirm the alimony award, reverse the denial of fees, and remand for further proceedings.

The parties were married for approximately twenty-three years before the dissolution proceedings began. Mr. Hutto is an engineer who has worked primarily on overseas projects. When he is overseas, he receives his base salary plus additional compensation based on the location, and his employer provides food, housing, and transportation. Due to the parties’ frequent moves, Mrs. Hutto did not hold a steady job during the marriage. Joint tax returns admitted into evidence showed $146,126 in income for 1997, $189,413 for 1998, and $154,536 for 1999. However, the most earned by Mrs. Hutto during these years was approximately $14,000. At the time of trial, the parties stipulated that Mr. Hutto’s annual net base salary was approximately $85,200 while Mrs. Hutto’s annual gross income was $36,000.

Early in the dissolution proceedings, Mrs. Hutto received a temporary alimony award of $2000 per month. With this award and her salary at the time of trial, Mrs. Hutto had about $518 left over each month. However, she also testified that she had lowered her standard of living and decreased her living expenses since the parties’ separation. Between the parties’ separation and the time of trial, Mrs. Hut-to spent about $27,000 of the $35,000 she had in savings while Mr. Hutto saved about $22,000. After considering all the evidence presented on the issue, the trial court awarded Mrs. Hutto $1500 per month in permanent alimony in the final judgment.

In this appeal, Mr. Hutto argues that the alimony award of $1500 was excessive. He complains about Mrs. Hutto’s estimate of $300 per month for clothing and $290 per month for credit card bills, which he alleged was the outstanding balance on the cards rather than a recurring amount. However, Mr. Hutto estimated, inter alia, $200 per month for his clothing, $1000 per month for his vacations, and $700 per month for his entertainment. Moreover, he was able to save approximately $22,000 during the pendency of this proceeding while Mrs. Hutto was forced to nearly deplete her savings. Based on these facts, which are supported by substantial competent evidence in the record, we hold that the permanent alimony award is clearly not excessive.

Mr. Hutto also argues that the alimony award included an improper savings component. In Mallard v. Mallard, 771 So.2d 1138, 1141 (Fla.2000), the supreme court held that “alimony may not include a savings component.” Mr. Hutto argues that the trial court verbally indicated that the permanent alimony award was based, in part, on the parties’ “lifestyle to make investments.” These “verbal musings” by the trial court were made immediately following the close of testimony and argument. Despite these musings, however, there is nothing in the record to support Mr. Hutto’s argument that the alimony award included a savings component.

In both Mallard and Tarkow v. Tarkow, 805 So.2d 854 (Fla. 2d DCA 2001), alimony awards that contained savings components were reversed. In both cases, the wives had requested savings alimony, and the alimony awards included specific savings components. In this case, however, Mrs. Hutto did not plead or argue entitlement to a savings component in her alimony award, and she did not list a savings component on her financial affidavit. In addition, the final judgment makes no mention of such an award. Moreover, in denying Mr. Hutto’s motion for rehearing, the trial court expressly ruled that “no consideration was given to a savings component in formulation of the former wife’s alimony award.” There is absolutely nothing in the record to demonstrate that the trial court included a savings component in setting the alimony award.

Mr. Hutto’s argument on the savings issue relies exclusively on the trial court’s statement at the final hearing concerning the parties’ habit of investing. However, this argument places great weight where none is warranted. Although a trial court is free to verbally rule immediately following closing argument and there are many instances when this is appropriate and necessary, such as with time-sensitive visitation and custody issues, this did not occur here. If the trial court does not verbally rule at the hearing, the musings of the court on a matter expressly not included in the final judgment must be regarded as no more than dicta. See Shore Mariner Condo. Ass’n v. Antonious, 722 So.2d 247, 248 (Fla. 2d DCA 1998) (holding that the trial judge’s “musings were nothing more than impressions of the case ... formed during the presentation of evidence, which case law properly recognizes is an inevitable by-product of human decision-making”); Fisher v. Smithson, 839 So.2d 788, 789 (Fla. 4th DCA 2003) (holding that trial court’s statement regarding length of jury deliberations “must be interpreted as no more than extraneous judicial musings”). Only after the trial court enters its written final judgment should a party regard the matter as truly final. In this case, the only arguable support for Mr. Hutto’s position is nothing more than a judicial musing. Finding nothing in the final judgment to support Mr. Hutto’s argument that the alimony award improperly included a savings component, we affirm on this issue.

On cross-appeal, Mrs. Hutto argues that the trial court erred in denying her motion for an award of attorney’s fees. Under section 61.16, Florida Statutes (1999), one spouse’s need and the other spouse’s ability to pay are the primary factors to be considered in awarding attorney’s fees in a dissolution case. See Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). “The purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel.” Id. “[I]t is not necessary that one spouse be completely unable to pay attorney’s fees for the trial court to require the other spouse to pay those fees.” Id. Here, the equitable distribution was generally equal, but the fact remains that Mr. Hutto has a greater income.

Based on the $1500 per month alimony award and without taking into consideration tax consequences, Mrs. Hutto’s income will be approximately $54,000 per year, and Mr. Hutto’s base income will be approximately $67,200 per year. While these figures standing alone are not greatly disparate, Mr. Hutto’s base income does not account for the additional compensation and benefits that he receives while working overseas. For example, during his most recent assignment in Malaysia, Mr. Hutto received an extra $1300 per month in compensation, and housing, transportation, and food were also provided. While Mr. Hutto’s total compensation was explored at trial, the record does not contain definitive numbers for anything other than base salary, in part because his extra compensation depends on the project location. However, the joint tax returns which were admitted into evidence reflect a substantially higher annual income than Mr. Hutto’s base salary.

‘Where there is a substantial disparity between the parties’ income, it may be an abuse of discretion to grant [only] a partial attorneys’ fee award.” Lowman v. Lowman, 724 So.2d 648, 650 (Fla. 2d DCA 1999) (reversing an award of only fifty percent of the wife’s attorney’s fees and remanding for the husband to pay all or a higher percentage of those fees depending on the amount of increase in the alimony award). Given the evidence of Mr. Hutto’s past earnings, his minimal out-of-pocket living expenses while on overseas projects, and the parties’ financial circumstances since the separation, we conclude that the trial court abused its discretion in not ordering Mr. Hutto to make at least a partial contribution to Mrs. Hutto’s attorney’s fees. The fact that the trial court ordered Mr. Hutto to pay all of Mrs. Hutto’s costs bolsters this conclusion. Accordingly, we reverse the denial of attorney’s fees and remand to the trial court for it to award Mrs. Hutto all or part of the attorney’s fees she requested.

Affirmed in part, reversed in part, and remanded.

STRINGER and KELLY, JJ., Concur.

      . We note that Mr. Hutto stipulated in the trial court to the reasonableness of the amount of Mrs. Hutto’s attorney’s fees. Therefore, the only issue to be addressed on remand is the percentage of these stipulated fees for which Mr. Hutto should be responsible.


text:
    Leron NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2406.
    District Court of Appeal of Florida, First District.
    April 16, 2003.
    Nancy A. Daniels, Public Defender; Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant contends on appeal that the trial court erred in denying his motion to suppress statements he made to police following an illegal arrest on the basis that the reading of Miranda warnings broke the chain of illegality. The law is clear that Miranda warnings alone are insufficient to break the causal chain between an illegal arrest and the confession for Fourth Amendment purposes. Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Ames v. State, 739 So.2d 699 (Fla. 1st DCA 1999). While Miranda warnings are significant, additional factors to be considered in determining whether a statement made subsequent to an illegal arrest is the product of free will include: (1) the proximity of time of the arrest and the confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of official misconduct. Brown, 422 U.S. at 603, 95 S.Ct. 2254. Such inquiry should be determined on the facts of each case and no single fact is dispositive. Id.

Because the trial court failed to undertake the inquiry mandated by Brown in ruling on Appellant’s motion, appellant’s conviction and sentence are REVERSED and this case is REMANDED for a new trial including proceedings for a de novo determination of appellant’s motion to suppress.

VAN NORTWICK and POLSTON, JJ., and SMITH, LARRY G., Senior Judge, concur.

      . It is undisputed that the police lacked probable cause to arrest Appellant.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . See Houck v. State, 421 So.2d 1113, 1116 (Fla. 1st DCA 1982); Irons v. State, 498 So.2d 958, 960 (Fla. 2d DCA 1986).


author: NORTHCUTT, Judge.

text:
    Shannon L. ROACH, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2491.
    District Court of Appeal of Florida, Second District.
    April 16, 2003.
   NORTHCUTT, Judge.

Shannon L. Roach challenges the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm because the claim alleged in Roach’s motion was facially insufficient.

In his motion, Roach contended that the three-year mandatory minimum portion of his sentence for trafficking in cocaine was illegally imposed. He based this claim on our decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Although Roach’s motion alleged the date of his arrest, the motion was facially insufficient because it did not affirmatively allege that the date of his offense fell within the window created by Taylor. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003).

We note that the circuit court did not deny Roach’s motion as facially insufficient. Instead, it denied the motion without prejudice to refile when the Florida Supreme Court completed its review of the Taylor decision. On May 29, 2002, however, the State voluntarily dismissed its appeal of Taylor. See State v. Taylor, 821 So.2d 302 (Fla.2002) (table). Therefore, our affirmance is without prejudice to any right Roach might have to file a facially sufficient rule 3.800(a) motion raising the same claim. See Sims, 838 So.2d 658,.

Affirmed.

SALCINES and STRINGER, JJ., Concur.


author: FULMER, Judge.

text:
    Clyde HINES, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4628.
    District Court of Appeal of Florida, Second District.
    April 16, 2003.
   FULMER, Judge.

Clyde Hines appeals the summary denial of his motion to accredit jail time filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm in part and reverse in part.

Hines claims that he is entitled to 109 days’ jail credit. The trial court awarded him fifty-five days, but the record shows that Hines is entitled to fifty-six days’ credit. We reverse and remand for the trial court to award Hines the appropriate jail credit.

It appears that the additional days Hines seeks were served when he spent time in jail from the date of sentencing until he was placed into the custody of the Department of Corrections. The Department of Corrections is responsible for computing a defendant’s credit for time spent in county jail after sentencing, while awaiting a transfer to a state prison. Washington v. State, 662 So.2d 1027, 1028 (Fla. 5th DCA 1995). Hines should therefore pursue his administrative remedies and then seek a writ of mandamus against the Department of Corrections if he is dissatisfied with the outcome. Id.; see also Reynolds v. State, 590 So.2d 1043 (Fla. 1st DCA 1991). Therefore, we affirm the trial court’s denial of the credit sought for time served post sentencing. Our affirmance in this case is without prejudice to Hines’ pursuit of such an administrative remedy.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and COVINGTON, JJ., Concur.


text:
    B.W., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D02-1557.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Sanford Rockowitz, Miami, for appellant.
    Calianne P. Lantz, Assistant District Legal Counsel, for appellee.
    Before GODERICH, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

We affirm the order adjudicating the children dependent as to the mother, B.W. However, we reverse the disposition placing W.A.W. in the father’s custody and the order terminating the Department’s jurisdiction over W.A.W. Termination and disposition were ‘premature because the court placed the child with the father without requiring the Department to complete and file a home study on the father as dictated by section 39.521(3)(b)(l), Florida Statutes (2001). M.B. v. Dep’t of Children & Family Servs., 785 So.2d 1240 (Fla. 5th DCA 2001).

Adjudication affirmed; cause remanded for further proceedings.

      . We note that W.E.W. is already eighteen years old and no longer under the jurisdiction of the court. N.L. v. Dep’t of Children & Family Servs., 770 So.2d 220 (Fla. 3d DCA 2000); L.Y v. Dep’t of Health & Rehab. Servs., 696 So.2d 430 (Fla. 4th DCA 1997).


author: MAY, J.

text:
    Rosemarie STADELMAN, Individually, Rosemarie Stadelman, as Personal Representative of the Estate of Chris Stadelman and Francis Stadelman, by and through his mother and next friend Rosemarie Stadelman, Appellants, v. Linda JOHNSON, John Johnson, Sr., Erica Patrice Johnson and Progressive American Insurance Co., Appellees.
    No. 4D02-1793.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Bradley S. Hartman of Hartman & Goldberg, Cooper City, for appellants.
    Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., Hollywood, for appellee Progressive American Insurance Company.
   MAY, J.

The plaintiffs appeal a final summary judgment in which the trial court concluded that Progressive American Insurance Company [Progressive] did not provide uninsured motorist coverage to the plaintiffs. They raise two issues: 1) the court erred as a matter of law in its interpretation of a policy exclusion; and 2) there is a genuine issue of material fact concerning the insurer’s compliance with section 627.727(9), Florida Statutes (2001). We affirm the court’s interpretation of the policy exclusion, but reverse the summary judgment on the limited factual issue of the insurer’s compliance with section 627.727(9).

Chris Stadelman was killed and Francis Stadelman severely injured when their motorcycle collided with another vehicle. The plaintiffs brought an action for damages against the individual defendants and for declaratory relief against their insurer, Progressive. The count against Progressive requested the court to declare the existence of uninsured motorist coverage for the accident.

The relevant facts are not in dispute. The plaintiffs occupied a motorcycle for which they did not pay a premium and which was not listed as a covered auto under the policy. The plaintiffs argue that the motorcycle is not an “auto” as defined by Progressive’s policy and is therefore not subject to the policy’s exclusion for other owned autos. Progressive argues that the motorcycle fits within the policy’s definition of “auto” and is therefore excluded from coverage.

Progressive’s policy provides: “We do not cover bodily injury sustained by a person: ... (3) while occupying an auto owned by you or a relative which is not insured for uninsured motorist coverage under this policy.” The policy defines an “auto” as “a land motor vehicle or a trailer designed for travel on public roads. It does not include mobile equipment or unlicensed motor vehicles used principally off road.”

The trial court found that the motorcycle was an “auto” as defined by the policy and the exclusion applied. We agree and affirm that ruling.

The plaintiffs argue secondarily that summary judgment was improperly entered because there is a genuine issue of material fact concerning whether the insurer complied with section 627.727(9). The plaintiffs raised the compliance issue in their Reply. However, it appears to have been overlooked in Progressive’s motion for summary judgment and the plaintiffs’ corresponding memorandum in opposition. Nevertheless, plaintiffs raised the issue in argument near the conclusion of the summary judgment hearing. The transcript reveals that both defense counsel and the judge seemed to be taken by surprise when the plaintiffs raised the issue at the hearing, but it is clear that the issue was preserved.

Section 627.727(9) requires insurers to satisfy statutorily-mandated requirements when limiting coverage. It requires the insurer to provide notice to the insured of coverage limitations, and to file revised premium rates with the Department of Insurance prior to initially providing limited uninsured motorist coverage.

Case law has required insurers to prove compliance with this section when insurers rely upon policy provisions to limit or exclude coverage. See, e.g., Omar v. Allstate Ins. Co., 632 So.2d 214 (Fla. 5th DCA 1994); Schutt v. Atlanta Cas. Co., 682 So.2d 684 (Fla. 5th DCA 1996). Indeed, our supreme court has held that for an insurer

to limit coverage validly, the insurer must satisfy the statutorily-mandated requirement of notice to the insured and obtain a knowing acceptance of the limited coverage. An insurer who provides coverage with the section 627.727(9)(d) limitation is also statutorily required to file revised, decreased premium rates for such polices. It is our opinion that these requirements were the quid pro quo given by the legislature to insurers for the right to limit uninsured motorist coverage by this exclusion.

Gov’t Employees Ins. Co. v. Douglas, 654 So.2d 118, 120 (Fla.1995).

Progressive failed to establish the absence of a genuine issue of material fact concerning its compliance with section 627.727(9). We therefore reverse the summary judgment on the limited issue of the insurer’s compliance with the statute.

STEVENSON, and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    SEMBLER MARINE PARTNERS, LTD., Appellant, v. Robert J. SKIDMORE, Inc., Angler’s Obsession Commercial Fishing Corp., and Reason, Light & Truth Church Foundation, Appellees.
    No. 4D01-4718.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.

      Christopher J. Coleman of Sehillinger & Coleman, P.A., Melbourne, for appellant.
    Neal A. Sivyer and R.J. Haughey, II of Sivyer Barlow & Watson, P.A., Tampa, for Intervenor Presidential Financial Corporation.
   WARNER, J.

By declaratory judgment the trial court established a boundary by acquiescence between property owned by appellant and appellee. Appellant challenges the trial court’s ruling, claiming that there was insufficient evidence of any mutual uncertainty of the boundary or any agreement as to a boundary line. We conclude that the evidence showed both uncertainty and disagreement, as well as appellant’s passive acquiescence to the boundary for the prescriptive period. We therefore affirm the final judgment.

Charles Sembler (“Sembler”) inherited property located in Indian River County along the west side of the Indian River from his grandfather. He walked the property with his grandfather who showed him the boundaries. Sembler later transferred the property to appellant, Sembler Marine Partners, Ltd. (“Sembler, Ltd.”).

Robert J. Skidmore, Inc. (“Skidmore”) acquired the property adjacent to Sem-bler’s. Sometime in the 1940’s, a structure was constructed on Skidmore’s property. In 1963, a tenant on the Skidmore property constructed an addition to the structure by adding or extending an outdoor cooler. At the time, Sembler testified that he told the tenant, a friend, that the addition was “very close to the [property] line.”

In 1983, Sembler, Ltd. obtained a survey of its property in connection with a loan transaction. The survey, known as the Allen survey, located the boundary between the Sembler, Ltd. and Skidmore parcels in accordance with monuments constituting some iron pins. This was consistent with the boundary of the property as described in its legal descriptions as well as the lines of occupation, as found by the trial judge. The boundary line established by the Allen survey was approximately fourteen feet from the structure on Skidmore’s property.

Skidmore did not have a survey conducted prior to the purchase of his parcel because the Allen survey had recently been prepared. Shortly after he purchased the property, he walked it with Sembler who pointed out an iron pipe as the northwest corner of their common boundary. Drawing an imaginary line from the pins to the river bank, the boundary Sembler pointed out would have been about ten feet north of the structure, very close to the Allen survey line. Sembler, Ltd. discussed purchasing Skidmore’s property, but instead leased it for five thousand dollars.

In 1990, while Sembler, Ltd. was leasing Skidmore’s property, it obtained another survey of the property, known as the Jackson survey. This survey placed the parties’ common boundary approximately seventeen feet south of the Allen survey boundary. According to the Jackson survey, the structure on the Skidmore property encroached on Sembler, Ltd.’s property. Harry Underhill, the general partner of Sembler, Ltd., raised the issue of the encroachment with Skidmore who disagreed with the Jackson boundary. Despite the favorable Jackson survey, Sembler, Ltd. failed to take any action until filing this suit for declaratory judgment and to quiet title eight years later.

After hearing the evidence, the trial court found that while the Jackson survey appeared to be more technically correct than the Allen survey, the parties and their predecessors had acquiesced in the location of the building and the assumed boundary in excess of forty years. It therefore declared the Allen survey of 1983 established the boundary between the Sembler, Ltd. and Skidmore parcels.

Three essential elements must be proven to establish a boundary by acquiescence: (1) uncertainty or dispute as to the location of the true boundary; (2) location of a boundary line by the parties; and (3) acquiescence in the location for the prescriptive period. See Shaw v. Williams, 50 So.2d 125, 126 (Fla.1950); DuBois v. Amestoy, 652 So.2d 919, 920 (Fla. 4th DCA 1995). Moreover, “uncertainty means actual lack of knowledge on the part of both owners as to the true boundary” and must be mutual as to both property owners. Shaw, 50 So.2d at 127-28. Shaw explains that the boundary line so agreed becomes binding “for the reason that the proprietors have by such consent and conduct agreed permanently upon the limits or the extent of their respective lands.” Id. at 127 (quoting Watrous v. Morrison, 33 Fla. 261, 14 So. 805, 807 (1894)). It also teaches that “[p]assive acquiescence may forfeit one’s right to dispute a boundary, but to do so, it must follow knowledge of the location of the line by the adverse party.” Id. at 128.

The evidence presented in this case satisfies the elements of boundary by acquiescence. Sembler was uncertain as to the location of the boundary as early as the 1960’s when he expressed concern that Skidmore’s tenant was constructing the structural addition very close to the property line. Although appellant cites Evans v. Forte, 510 So.2d 327 (Fla. 2d DCA 1987), for the proposition that a dispute between an owner and tenant as to a boundary line is insufficient to demonstrate the true owner is also uncertain, this proposition protects an owner uninvolved in, and unaware of, his tenant’s dispute. 510 So.2d at 330-31. Here, the owner was Sembler, and the testimony regarding his conversation with the tenant reflects Sembler’s uncertainty, not that of the owner of the other parcel. Moreover, Sembler later showed Skidmore a boundary line consistent with the Allen survey. Also, Sembler, Ltd. leased the Skidmore property, including the structure which encroached on the Jackson boundary line, demonstrating its acceptance of the Allen survey as establishing the correct line.

Finally, there is also evidence of dispute as to the boundary line. In 1990, Sembler, Ltd. obtained the Jackson survey and raised the issue of the true boundary with Skidmore who refused to accept that boundary. This established a dispute. For a period of eight years, Sembler, Ltd. passively acquiesced to the Allen boundary recognized as the boundary by both Skid-more and Sembler since the mid-1980’s. Skidmore’s building encroached onto the property now claimed by Sembler, Ltd., yet Sembler, Ltd. took no action for the prescriptive period of seven years. See § 95.12, Fla. Stat. (1975). Prior to the institution of these proceedings, Skidmore transferred his property to appellee, Reason, Light and Truth Church Foundation, which made improvements, including repair to the riprap along the river’s edge of the disputed parcel, without Sembler, Ltd. indicating that it had any claim to it. We conclude that the trial court had sufficient evidence to find a boundary by acquiescence at the Allen survey line, even where it concluded that the Jackson survey was technically more correct.

Affirmed.

STONE and .GROSS, JJ., concur.