text:
    Darrick T. ADAWAY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1907.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.
    Rehearing Denied Jan. 23, 2004.

      Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before COPE, GREEN and FLETCHER, JJ.
   PER CURIAM.

Darrick T. Adaway appeals his life sentence without parole for capital sexual battery on a minor. He contends that as applied to his case, the life sentence amounts to cruel and unusual punishment. We affirm.

At the time of the events at issue defendant was thirty-six years of age and the victim was eleven. The defendant was charged in Count I with capital sexual battery “by placing his mouth in union with the vagina of [the victim] in violation of s.794.011(2) ... Florida Statutes_” Under section 794.011(2), Florida Statutes (1999) “[a] person 18 years of age or older who commits sexual battery upon ... a person less than 12 years of age commits a capital felony....” The penalty is “life imprisonment and [the offender] shall be ineligible for parole.” § 775.082(1), Fla. Stat. (1999). After defendant was convicted, the trial court imposed that sentence.

Defendant argues that because capital sexual battery carries a mandatory penalty of life imprisonment without parole, the penalty is cruel and unusual punishment under the Eighth Amendment to the United States Constitution and cruel or unusual punishment under Article I, section 17 of the Florida Constitution (1968). The defendant contends that the penalty of life imprisonment without parole is disproportionate where the crime consists of union with, but not penetration of, the sexual organ of the victim and no physical injury.

We agree with the analysis of the Second District in a similar case, Gibson v. State, 721 So.2d 363, 367-70 (Fla. 2d DCA 1998) and affirm on that authority. See also Banks v. State, 342 So.2d 469 (Fla.1976). But see Welsh v. State, 850 So.2d 467, 474 n. 8 (Fla.2003), (Pariente, J., concurring) (“the constitutionality of a mandatory punishment of life imprisonment for the specific crime of sexual battery without penile/vaginal union is a significant concern”).

Affirmed.

      . The crime date was July 19, 2000.

      . Count 2 of the information charged lewd and lascivious molestation by intentionally touching the genitals of the victim in violation of paragraph 800.04(5)(b), Florida Statutes (1999). The defendant does not challenge his conviction and sentence on count 2.

      . The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
      At the time of the crime Article I, section 17 of the Florida Constitution provided: "Excessive fines, cruel or unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden.” A 1998 amendment to this provision was held invalid in Armstrong v. Harris, 773 So.2d 7, 22 (Fla.2000). Although not applicable to this case, Article I, Section 17 was subsequently amended in 2002.

      .There was testimony by the victim which could be interpreted as saying that there had been digital penetration. However, the rape treatment center physician conducted a physical examination and found that no penetration had occurred.


source: Caselaw Access Project

author: SCHWARTZ, Chief Judge.

license: Public Domain

text:
    Kristi MUELLER f/k/a Kristi Kamenesh, Appellant, v. Peter Z. KAMENESH, Appellee.
    Nos. 3D03-642, 3D03-419.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.
    Rehearing and/or Reconsideration Denied Jan. 23, 2004.
    Barranco, Kircher & Vogelsang; Kohl-man Hamlin and Robert Kohlman, Miami, for appellant.
    Nancy A. Hass, Hollandale, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   SCHWARTZ, Chief Judge.

On these consolidated appeals by the ex-wife from two adverse post-trial orders in the parties’ dissolution case, we affirm one and reverse the other.

I.

The first dispute concerns the distribution of $30,000 recovered from the forfeited deposit of a potential purchaser who defaulted on an agreement to buy the parties’ marital home subsequent to the dissolution. The trial court awarded the entire $30,000 to the former husband on the theory that the controversy was covered by an agreed provision in the marital settlement agreement and final judgment that the former wife would receive $500,000 from the “proceeds” of the residence, with the former husband retaining the balance subject to the payment of several obligations. Specifically, the agreement provided:

Schedule A

Because the former wife indeed received the $500,000 from a later, successful sale of the home, the trial court reasoned that she was entitled to no more. We do not disagree.

On the record below, the term “house proceeds” is, at the very best of it for the ex-wife, ambiguous as to whether it includes the sums received by the owners as a result of a failed attempt to sell their home. See Bank of Silvis v. Boultinghouse Auction Co., 71 Ill.App.3d 98, 100, 27 Ill.Dec. 455, 389 N.E.2d 267, 268 (1979)(‘While the term proceeds is one of general understanding, its use in contracts has spawned a considerable number of decisions attributing varying meanings and usages to the word. (See Furst & Thomas v. Elliott, 56 Idaho 491, 56 P.2d 1064. See also Lightcap v. Mobil Oil Corp., 221 Kan. 448, 562 P.2d 1, and Long-Bell Lumber Co. v. National Bank of Commerce, 35 Wash.2d 522, 214 P.2d 183.) The term is one of equivocal import and great generality and its construction depends upon the context and the subject matter to which it is applied.”). If that is the case, the issue of interpretation was for resolution by the trial judge as the finder of fact. See City of Miami Beach v. Sussman, 376 So.2d 1218 (Fla. 3d DCA 1979); Elmore v. Enterprise Devs., Inc., 418 So.2d 1078 (Fla. 4th DCA 1982); see also Rossi v. Brown, 581 So.2d 615 (Fla. 5th DCA 1991). We are not empowered to interfere with the result of that process. Elmore, 418 So.2d at 1079 (“Given the existence of an ambiguity and of evidence to support the trial court’s interpretation, we are simply not authorized to retry the issue.”).

On the other hand, there is ample authority, with which we are inclined to agree, that “house proceeds” includes a forfeited deposit as a matter of law. As the court held in Old Stone Bank v. Tycon I Building, Ltd., 946 F.2d 271, 271-72 (4th Cir.1991):

The broad wording of the deed of trust covering the real estate granted appellant Old Stone Bank a security interest in the property itself and in revenue derived from use of the property. The earnest money deposit was paid in exchange for rights in the property and flowed from a disposition of the property. The deposit therefore represents proceeds of the real estate subject to Old Stone’s lien. In re: Aldersgate Found., Inc., 878 F.2d 1326 (11th Cir.1989).

See also Bank of Silvis, 71 Ill.App.3d at 98, 27 Ill.Dec. 455, 389 N.E.2d at 267. We need not choose between these two approaches because either one results in af-firmance.

II.

It is clear, however, that the trial court had no authority to order, at the instance of the former husband, the ex-wife to discontinue using her married name. Smithers v. Smithers, 804 So.2d 489 (Fla. 4th DCA 2001), review denied, 828 So.2d 389 (Fla.2002). Hence, the order on appeal which so provides is reversed.

Affirmed in part, reversed in part.

      . The result may well have been completely to the contrary if, as it seems to have been assumed at oral argument, the agreement and final judgment had instead provided for the appellant’s receipt of $500,000 from the "proceeds of the sale " of the home. See Zimmer v. Chase Federal Sav. & Loan Ass’n, 120 So.2d 653, 655 (Fla. 3d DCA 1960)(“[P]roceeds is synonymous with product, income, yield, receipts, returns, and, as used in relation to an execution sale, means all that was received from the sale."[e.s.]), cert. denied, 125 So.2d 874 (Fla.1960).
      It should be noted that the trial judge, contrary to both counsel, got the issue exactly right below, stating at the conclusion of the hearing:
      THE COURT:

      Okay. Let me read this.
      I don’t find this to be a dispute related to the sale of the house. This is a dispute relating to the proceeds of the marital home. She got her 500,000. I find he’s entitled to everything else.

      . The appellant's claim that the trial court lacked subject matter — more accurately, "case” — jurisdiction over the deposit dispute, see and compare Davis v. Dieujuste, 496 So.2d 806 (Fla.1986); Garcia-Roque v. Roque-Velasco, 855 So.2d 668 (Fla. 3d DCA 2003); Steinfeld v. Steinfeld, 553 So.2d 774 (Fla. 4th DCA 1989); Brandt v. Brandt, 525 So.2d 1017 (Fla. 4th DCA 1988), falls with our determination that the sum is included within the terms of the agreement and judgment and was therefore subject to the usual reservation of jurisdiction in the final judgment to enforce its terms. Paulucci v. General Dynamics Corp., 842 So.2d 797 (Fla.2003)(Of course, a contrary ruling on the merits would have resulted in a concomitant determination that there was no jurisdiction because the issue was a post-judgment one not covered by the judgment and agreement. See and compare Davis, 496 So.2d at 806; Steinfeld, 553 So.2d at 774; Brandt, 525 So.2d at 1017. See generally Tobkin v. State, 777 So.2d 1160 (Fla. 4th DCA 2001). Thus, this is one of those instances in which the resolution of a particular legal or factual issue also determines the trial court's jurisdiction over the case. Roberts v. Seaboard Surety Co., 158 Fla. 686, 29 So.2d 743 (1947); Florida Power & Light Co. v. Canal Authority, 423 So.2d 421 (Fla. 5th DCA 1982), pet. for review denied, 434 So.2d 887 (Fla.1983).)

      .Although the trial court thought otherwise, we cannot see that the fact that the final judgment, at her request, "restored” the ex-wife's maiden name makes any difference to the power, or lack of it, to require that she cease using her married one. Smithers, 804 So.2d at 489.


author: GRIFFIN, J.

text:
    Patricia Langford HIRSCH, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-3706.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Rehearing Denied Jan. 26, 2004.
    Daniel S. Ciener, Esq. and David J. Romett, Esq., of the Law Firm of Daniel S. Ciener, Merritt Island, for Petitioner.
    No Appearance for Respondent.
   GRIFFIN, J.

Petitioner, Patricia Langford Hirsch, seeks a writ of habeas corpus to obtain her release from jail, alleging that the trial court was without jurisdiction to revoke her post-trial 'supersedeas appellate bond before this court had issued its mandate in her appeal.

First, as set forth in Florida Rule of Appellate Procedure 9.140(h)(4), orders relating to post-trial release are reviewed by the court by motion, not by a petition for writ of habeas corpus. Second, contrary to petitioner’s argument, Florida Rule of Appellate Procedure 9.600(d), as amended in 1996, expressly provides that in criminal cases, the lower tribunal retains jurisdiction to consider matters relating to post-trial release under rule 9.140(h). Therefore, the petition for writ of habeas corpus is construed as a motion to review the order revoking post-trial supersedeas bond and is denied.

PETITION CONSTRUED AS MOTION AND DENIED.

PALMER and MONACO, JJ., concur.


author: PER CURIAM.

text:
    Calvin MAYS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-746.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2003.
    Rehearing Denied Jan. 14, 2004.
    Calvin Mays, Crawfordville, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Nixon v. State, 857 So.2d 172 (Fla.2003); Smith v. State, 697 So.2d 991 (Fla. 4th DCA 1997).

THOMPSON, PALMER, and MONACO, JJ., concur.


text:
    Darrell D. McDUFFIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1340.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2003.
    Rehearing Denied Jan. 15, 2004.
    James B. Gibson, Public Defender, Day-tona Beach, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Darrell D. McDuffie, Sneads, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Lynch v. State, 293 So.2d 44 (Fla.1974).

PLEUS, ORFINGER and MONACO, JJ., concur.


author: RAMIREZ, J.

text:
    Brian D. HICKMAN, Appellant, v. Marilyn L. HICKMAN, Appellee.
    No. 3D03-593.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.

      Brian D. Hickman, in proper person.
    Margaret Brodsky, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   RAMIREZ, J.

Brian D. Hickman appeals the trial court’s entry of final judgment of dissolution of marriage. Because we find no abuse of discretion in the trial court’s entry of the final judgment, we affirm.

The parties married in 1982 and two children were born of the marriage. During the marriage, the wife worked both outside of the home and as a homemaker. She currently works as a receptionisfrad-ministrative assistant in a dental office. The husband is a retiree of the Coast Guard and currently works as a fire fighter. The parties’ primary asset was the marital home. Other assets included three vehicles, some stock, some United States savings bonds, a boat and a motorcycle.

After the parties entered into a Mediated Settlement Agreement on Temporary Issues, the trial court entered an Order Restricting Contact Between the Parties, ordering the parties to communicate only through counsel and for the husband to have no contact with the wife.

In its final judgment of dissolution of marriage, the trial court determined that the value of the martial home was $150,000.00, encumbered by a mortgage of $103,000.00, and awarded the wife the marital home. The trial court also awarded the wife $300.00 monthly as permanent alimony, payable in part through a lump sum alimony payment of $17,140.00 and through the payment of $200.00 monthly, and awarded her half of the husband’s Coast Guard pension of $619.00 per month. The husband was to maintain two existing life insurance policies with the wife as beneficiary of a $50,000.00 policy, as security for the husband’s alimony payment obligations to the wife, until the wife’s death or remarriage. The wife was to be listed as an irrevocable beneficiary on the other $100,000.00 policy, as security for the wife’s share of the equitable distribution of the husband’s Coast Guard pension.

The husband first argues the trial court improperly assigned value to the parties’ assets and liabilities, without including its rationale for the valuation of the assets and a date for the valuation. Where, however, there is record evidence to support the trial court’s conclusions, specific findings as to the factors underlying the court’s valuations of marital property are not necessarily required. See Kelly v. Kelly, 557 So.2d 625, 627 (Fla. 4th DCA 1990). The record in this case supports the court’s valuation of all of the parties’ marital assets, the most important of which included the court’s valuation of the parties’ primary asset at $150,000.00, which was reasonable based upon the value of that asset as contained in the husband’s financial affidavits. Furthermore, under section 61.075(6), Florida Statutes (2001), a trial court may also select valuation dates as are “just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge’s discretion, the circumstances require.”

We further find that the trial court likewise acted well within its discretion in its award of lump sum alimony to the wife, in its application of a select number of mortgage payments made by the husband prior to the parties’ dissolution, as well as in its requirement that the husband maintain life insurance as security for his obligations under the final judgment.

We find, however, that there is no purpose to the Order Restricting Contact Between the Parties to the extent that the parties currently communicate directly with each other in regards to matters that relate to the well-being and care of the parties’ minor child, as well as in matters of visitation. We thus strike that portion of the order which forbids the parties from communicating with each other, other than through counsel.

In sum, we affirm the final judgment under review, and strike in part the order restricting contact between the parties.


text:
    Alfredo H. CUNNINGHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1551.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Rehearing Denied Jan. 23, 2004.
    Alfredo H. Cunningham, in proper person.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., LEVY and SHEVIN, JJ.
   PER CURIAM.

Pursuant to the State’s proper concession, we vacate the defendant’s convictions for possession of a firearm by a convicted felon, as required by Thomas v. State, 777 So.2d 957 (Fla.2001). On remand, the defendant’s sentence on this conviction shall also be vacated. The order is affirmed in all other respects.

Conviction vacated; remanded with instructions.


author: STONE, J.

text:
    Lionel TATE, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1306.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.

      Richard L. Rosenbaum and Cheryl Zick-ler of Law Offices of Richard L. Rosen-baum, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Debra Rescigno, Assistant Attorney General, West Palm Beach, for appellee.
    Steven Drizin of Bluhm. Legal Clinic, Chicago, Michael J. Dale, Fort Lauder-dale, and Robert G. Schwartz, Marsha L. Levick, and Lourdes M. Rosado of Juvenile Law Center, Philadelphia, for amicus curiae. .
    Barbara Bennett Woodhouse, Christopher Slobogin, Claudia Wright, and Sherrie Russell-Brown of Center on Children & the Law, Gainesville, and Steven Drizin of Bluhm Legal Clinic, Chicago, for amicus curiae.
   STONE, J.

Lionel Tate appeals his conviction of first-degree murder and the resulting mandatory sentence to life in prison. Of the more than ten significant issues raised on appeal, one mandates reversal.

The denial of defense counsel’s post-trial request to have Tate evaluated, based on sworn testimony from a neuropsychologist and two attorneys raising bona fide doubts as to Tate’s competency, and the trial court’s failure to order, sua sponte, a pretrial competency evaluation, constitute a violation of Tate’s due process rights.

Tate, age twelve at the time of the crime, was indicted by a grand jury and convicted of the first-degree murder of six-year-old Tiffany Eunick in 1999. The general verdict included charges of both felony murder, based on committing aggravated child abuse, and premeditated murder. The trial and sentence, in light of Tate’s age, has been the focus of considerable public interest reflected in the multiple amicus briefs filed in this appeal.

The evidence was clear that the victim was brutally slain, suffering as many as thirty-five injuries, including a fractured skull, brain contusions, twenty plus bruises, a rib fracture, injuries to her kidneys and pancreas, and a portion of her liver was detached. It was undisputed that it would take tremendous force to inflict these injuries. None of the experts, not even those for the defense, believed that the injuries were consistent with “play fighting,” or that they were accidentally inflicted.

Post-trial, in addition to a motion for new trial, the defense requested an eviden-tiary hearing, pursuant to Cottle v. State, 733 So.2d 963 (Fla.1999), challenging whether pre-trial plea negotiations and an alleged proposal to jointly lobby the governor for clemency in the event of a conviction, were adequately explained to Tate. Tate’s appellate counsel, who was representing him on the motion for new trial, for the first time, also sought a competency evaluation and hearing, asserting that Tate did not know or understand the consequences of proceeding to trial and that he was unable to assist counsel before and during trial. Such a post-trial evaluation and hearing would be the only remaining opportunity to establish Tate’s mental condition at that point in time.

On the second day of the post-trial hearing held on March 2, 2001, Tate’s counsel proffered to the court that Tate was not presently competent to understand the implications of the need to waive his attorney-client privilege. At that time, the trial judge asked Tate if he understood, and he replied, “no.” During the post-trial hearing, Tate’s counsel made an oral motion for competency evaluation and hearing for the limited purpose of determining whether to order the same.

At the conclusion of the hearing, the trial court orally determined that, at a minimum, Tate should be evaluated by mental health experts pursuant to Florida Rule of Criminal Procedure 3.210, stating,

I’m also convinced that if I denied your hearing at this particular point, that I would get ordered by the Fourth District Court of Appeals [sic] to have such a hearing. And I’d rather do that while testimony is fresh, rather than trying to recall what happened three or four or five or six months down the road.

In response, however, the state argued that the motion should be denied because it was required to be in a written motion. Defense counsel inserted that he would submit a written motion. Nevertheless, the court reversed itself, and denied the requested relief. Tate subsequently filed a written motion for competency evaluation attaching affidavits indicating that Tate was not presently competent and that, pre-trial, he was not competent to assist counsel or to decide whether to take the state’s plea offer.

In rejecting a post-trial evaluation and hearing, the trial court explained that until that time, no one had “voiced a question about the defendant’s competency to proceed.” The court noted that two days before trial, Tate said he wanted to proceed to trial. Further, at no time, before or during trial, did Tate’s lawyers advise the court that Tate could not proceed due to incompetency.

The question we resolve, here, is whether, due to his extremely young age and lack of previous exposure to the judicial system, a competency evaluation was constitutionally mandated to determine whether Tate had sufficient present ability to consult with his lawyer with a- reasonable degree of rational understanding and whether he had a rational, as well as factual, understanding of the proceedings against' him. We conclude that it was. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Hill v. State, 473 So.2d 1253 (Fla.1985); see also Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Kelly v. State, 797 So.2d 1278 (Fla. 4th DCA 2001).

Tate’s appellate lawyer advised the court, “[a]nd as [sic] officer of the court I’m standing next to Lionel drawing pictures, hasn’t listened to one work [sic] and had no idea what’s going on.” Counsel added that Tate was not “assisting] us in assisting him, and there’s no interaction that’s going on,” and continued,

It’s someone [Tate] sitting here playing with pencil, pen and drawing pictures in what’s probably the most important proceeding of his life, and it is something that every [sic] needs to stop and step back.
There were — there was [sic] great people involved in this case, very experienced doctors but never a competency evaluation done. And one of the things that was in [sic] original motion for new trial, I think we’re glossing over here is did Lionel Tate know the consequences of going forward.

Counsel also pointed out that “his eyes are moving around,” which counsel interpreted as indicating that he did not understand. The court, however, pointed out that Tate’s lack of interest in the proceeding did not equate ’with incompetency.

Counsel further related their concerns as to Tate’s pre-trial rejection of an apparently favorable plea offer, arguing that Tate’s trial counsel never told him that if he lost at trial, there was only one possible sentence, life in prison without parole, and that since he did not understand this, he could not have knowingly and voluntarily rejected the state’s plea offer.

At trial, neuropsychologist, Dr. Mitten-berg, testified that Tate had a mental delay of about three to four , years, “which means that Lionel has an age equivalent of nine or ten years old.” It is undisputed that Tate’s IQ is approximately 90. Dr. Joel Klass, a child psychiatrist, testified for the defense at trial that Tate had the social maturity of a six-year-old and delays in inferential thinking. Dr. Sheri Bourg-Carter, called by the state as a rebuttal witness, likewise acknowledged Tate’s immaturity.

Tate’s trial counsel wanted to testify further in support of the request for a post-trial competency hearing, but was concerned' about his ability to do so without a waiver of the attorney-client privilege. Accordingly, the question then arose whether Tate would waive his privilege and allow his trial attorney to testify concerning competency. Apparently, Tate, after conferring with his mother, did not agree to the proposed waiver. On the record, it appears that he simply followed his mother’s instruction not to waive his attorney-client privilege, despite his lawyers’ positions that waiving the privilege was in Tate’s best interest. Significantly, defense counsel wanted to reveal what led him to believe that Tate was not competent during trial, but was apparently precluded from doing so.

At the March 2nd hearing, after Tate’s first oral motion for competency hearing was made, the state’s witness, Dr. Bourg-Carter, stated that, in her opinion, Tate was “legally” competent and that Tate’s trial lawyer knew the results of a pre-trial evaluation she performed. Dr. Bourg-Carter, stated that there was a pre-trial agreement between Tate’s lawyer and the defense’s expert psychologist, Dr. Spencer, that she would conduct certain examinations on Tate so that he would not be tested multiple times. She then conferred with Dr. Spencer. She testified that under the circumstances of the case, Tate’s competency would logically arise as an issue that a forensic psychologist would need to consider. Dr. Bourg-Carter further testified that during her evaluation of Tate, he understood that the possible consequences of a conviction was to spend a “[l]ong time in prison.”

The state also drew the court’s attention to the plea colloquy that was conducted five days before trial at which Tate, accompanied by his lawyer and court appointed psychiatrist, acknowledged that the state offered a plea of three years in a juvenile detention facility, followed by ten years of probation. Tate’s lawyer stated at that time that, after consulting with Tate and his mother, he wanted to reject the plea offer and proceed to trial.

At the plea hearing, Tate did advise the trial court that he understood what his counsel told the court, that he had enough time to talk with his mother, and that he wanted to proceed to trial. Further, Tate stated that no one forced or pressured him into going to trial, and he had no questions for the court. Accordingly, the trial court concluded, “I’m convinced that Mr. Tate has sufficient ability to make a decision in this very important matter.”

We recognize that factually, particularly without the assistance of testimony from trial counsel, the present case differs from Robinson and Hill. In Robinson, witnesses testified that they believed Robinson to be insane, he had a long history of disturbed behavior, had been hospitalized on several occasions for psychiatric disturbances, had shot and killed his son, and tried to commit suicide several years before he murdered his wife. 383 U.S. at 378, 86 S.Ct. 836. There, the Supreme Court concluded that the evidence before the court mandated an inquiry into his competence to stand trial, even in the face of his apparent mental alertness at trial and his counsel’s failure to raise the issue. Id. at 385, 86 S.Ct. 836.

The state correctly notes that here, in contrast to Robinson, Tate had been seen by Dr. Bourg-Carter, even though no competency hearing was held, and her opinion was that Tate was competent to stand trial. Further, the state emphasized the absence of facts in the pre-trial or trial record showing that Tate was not competent to stand trial. Tate also had psychological experts available to the defense throughout the process, along with his lawyer and mother.

In Hill, the defendant was mentally retarded. 473 So.2d at 1255. At a hearing on his motion for post-conviction relief, an investigator testified that Hill was difficult to communicate with and was of no help in preparing his defense. Moreover, at his trial, Hill exhibited unusual behavior. Id. Incident to the post-conviction proceedings, Hill was evaluated and mental health professionals testified he had a low I.Q. and was unable to recall details of events even ninety minutes in the past, and one opined that Hill could not cooperate with his attorney, assist in his defense, or have any rational or factual understanding of the proceedings. Id.

The Florida Supreme Court, in Hill, recognized that the trial judge has an independent duty under Robinson and Florida Rules of Criminal Procedure to determine the competency of the defendant to stand trial and, finding that the evidence raised sufficient doubt as to Hill’s competency to stand trial, should have required a hearing. The supreme court vacated Hill’s conviction and sentence and remanded the case, allowing a second prosecution after a new determination that Hill was competent to stand trial. Id.

We also recognize that competency hearings are not, per se, mandated simply because a child is tried as an adult. However, in light of Tate’s age, the facts developed pre-trial and post-trial, and his lack of previous exposure to the judicial system, a competency hearing should have been held, particularly given the complexity of the legal proceedings and the fact that he was denied this protection afforded children fourteen and older under section 985.226(2), Florida Statutes, which provides for a waiver hearing to determine whether the child should be tried as an adult. Further, the brief plea colloquy, taken alone, was not adequate to evaluate competency given his age, immaturity, his nine or ten-year-old mental age, and the complexity of the proceedings.

Even if a child of Tate’s age is deemed to have the capacity to understand less serious charges, or common place juvenile court proceedings, it cannot be determined, absent a hearing,' whether Tate could meet competency standards incident to facing a first-degree murder charge involving profound decisions regarding strategy, whether to make disclosures, intelligently analyze plea offers, and consider waiving important rights.

The record reflects that questions regarding Tate’s competency were not lurking subtly in the background, but were readily apparent, as his immaturity and developmental delays were very much at the heart of the defense. It is also alleged that his I.Q. of 90 or 91 means that 75% of children his age scored higher, and that he had significant mental delays.

Applying the principles enunciated in Robinson and Hill, we conclude that it was error to fail to, sua sponte, order a competency hearing pre-trial and, in any event, to deny the post-trial request for a competency hearing.

In light of the fact based professional doubts expressed post-trial concerning Tate’s competency, Tate was entitled to a complete evaluation , and hearing at that time, if for no other reason than to clarify the record, notwithstanding that the trial court may have been correct in concluding that Tate’s demeanor and disinterest did not necessarily mean that he did not understand the proceedings and that his incompetency was not previously raised despite defense counsel’s continuing access to professional help. Under the principle recognized in Robinson, the trial court’s reasoning is insufficient justification to override the testimony regarding Tate’s reduced mental functioning, his possible inability to understand the charges and decisions to be made, the potential penalty, and the professional opinion that a competency evaluation and hearing was necessary. 383 U.S. at 384-85, 86 S.Ct. 836.

Upon remand, Tate is entitled to a new trial because a hearing at this late date to determine the present competency of a maturing adolescent cannot adequately retroactively protect his rights. See Jones v. State, 740 So.2d 520 (Fla.1999); Tingle v. State, 536 So.2d 202, 204 (Fla.1988).

Here, if either a pre-trial or post-trial competency hearing had been ordered, the court would have been able to properly assess Tate’s appreciation of the charges, the range and nature of possible penalties, determine whether he understood the adversary nature of the legal process, his capacity to disclose to his attorney pertinent facts surrounding the alleged offense, his ability to relate to his attorney, his ability to assist his attorney in planning his defense, his capacity to realistically challenge prosecution witnesses, his ability to manifest appropriate courtroom behavior, his capacity to testify relevantly, and his motivation to help himself in the legal process, as well as his ability to evaluate and make a decision concerning the plea offer.

At-a minimum, under the circumstances of this case, the court had an obligation to ensure that the juvenile defendant, who was less than the age of fourteen, with known disabilities raised in his defense and who faced mandatory life imprisonment, was competent to understand the plea offer and the ramifications thereof, and understood the defense being raised and the state’s evidence to refute the defense position, so as to ensure that Tate could effectively assist in his defense.

Significantly, the trial court’s reasoning in rejecting the post-trial motion overlooks the argument that the proper inquiry was whether the defendant may be incompetent, not whether he is incompetent. Walker v. State, 384 So.2d 730, 733 (Fla. 4th DCA 1980).

We have considered Fuse v. State, 642 So.2d 1142 (Fla. 4th DCA 1994), relied upon by the state. In Fuse, this court found Robinson and Hill inapplicable. Fuse was an appeal from a denial of a motion for post-conviction relief. There, two separate psychologists had been appointed who had, pursuant to court order, conducted competency evaluations, while, here, there was no such order, and in Fuse, there was no evidence of unusual circumstances. Additionally, Fuse was fifteen years old at the time of the offense, Tate was only twelve, and while Fuse had been arrested fourteen times, this was Tate’s first arrest.

We have considered, and reject, the additional issues that Tate’s conviction violates the Florida or federal constitutions, or is invalid on grounds of statutory interpretation. We briefly address some of these issues here, as they are likely to be raised upon re-trial.

Tate first asserts that the legislature did not intend to prosecute children, who are not caretakers, for the crime of “aggravated child abuse,” and that Tate did not have notice that section 827.03, Florida Statutes, could be applied to non-caretaker children, rendering the statute void for vagueness. Aggravated child abuse is the predicate for charging Tate with felony murder.

This court must be guided by the plain and unambiguous language of the statute. Section 827.03 clearly specifies that child abuse occurs when a “person” abuses a child.

A statute is void for vagueness when, because of its imprecision, it fails to give adequate notice of what conduct is prohibited and, thus, invites arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The benchmark for testing vagueness is whether a criminal statute affords a person of ordinary or common intelligence fair notice of what constitutes forbidden conduct. Bouters v. State, 659 So.2d 235, 238 (Fla.1995); State v. Hagan, 387 So.2d 943, 945 (Fla.1980).

This issue has been resolved adversely to Tate in K.B.S. v. State, 725 So.2d 448 (Fla. 2d DCA 1999). There, K.B.S., a fourteen-year-old juvenile, violated section 827.03(1) by knowingly or willfully abusing a child by intentionally burning the nine-year-old victim with a cigarette. Id. at 449.

In K.B.S., the Second District explicitly expressed its concern that the legislature had not included an age restriction in the statute, pointing out that this provision allowed for prosecution of a person of any age for child abuse as long as the victim was under age eighteen. See id. The court continued that “[t]his would appear to us to be an unintended result, and the legislature may well wish to review this issue.” Id. As the state persuasively points out, despite this direct invitation, the Florida legislature has chosen not to amend the statute in the four years since K.B.S. was decided.

We are persuaded to concur with the Second District, and again urge the legislature to re-examine the dilemma posed by using this statute to prosecute conduct by a non-caretaker child against another child.

Tate also contends that his right to equal protection and due process was violated because he was treated more harshly than older juveniles.

Florida courts have long recognized that there is no absolute right requiring children to be treated in a special system for juvenile offenders. See State v. Cain, 381 So.2d 1361, 1363 (Fla.1980); Johnson v. State, 314 So.2d 573, 576 (Fla.1975).

Section 985.225, Florida Statutes, provides for adult sanctions for the youngest juvenile offenders who are charged by grand jury indictment, but permits a juvenile sanction for older offenders whose crime may have been committed with malice or premeditation because the law does not require an indictment. Specifically, for fourteen or fifteen year olds, the transfer statutes give the state three options when the juvenile has no prior violent offenses and committed an offense that is punishable by life in prison: (1) the juvenile court retains jurisdiction; (2) the state may seek an indictment under section 985.225; or (3) the state can prosecute the juvenile as an adult by the direct filing of an information under section 985.227(l)(a). On the other hand, if the juvenile is under fourteen years of age, only the first two options are available.

Tate argues that the inequity is that juveniles who, by prosecutorial discretion, are indicted by a grand jury, must be sentenced as adults, while other juveniles, sentenced when jurisdiction is procured by the filing of an information under section 985.227(1), may be sentenced as an adult or as a juvenile, a matter of judicial discretion.

This issue, however, has been recently raised before this court and rejected in Brazill v. State, 845 So.2d 282 (Fla. 4th DCA 2003). -While recognizing that children thirteen and younger may be prosecuted in adult court .only by indictment, this court in Brazill opined that his attack was without merit, noting that,

This limitation on children thirteen and under is not properly viewed as a suspect classification scheme; rather, as the state points out, the statutory “requirement of an indictment is for the protection of the accused juvenile,” because the grand jurors must concur in the prosecutor’s charging decision. When the grand jury does not return an indictment, a juvenile thirteen and under is not subject to section 985.266(2).

(Citations omitted) Accordingly, applying Brazill, Tate’s equal protection argument fails.

Tate further argues that section 985.225, Florida Statutes, violates the constitutional principle of separation of powers and Florida’s non-delegation doctrine contained in Article II, Section 3, of the Florida Constitution. Tate asserts that under that provision, the legislature has unlawfully delegated its authority to define crimes and fix penalties by permitting the state attorney to seek an indictment for children under fourteen.

Tate likewise contends he was denied the opportunity to be tried as a juvenile without a judicial hearing. See Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Acknowledging that such previous challenges to the Florida juvenile transfer statutes have failed, Tate invites this court to re-visit the constitutionality of section 985.225. See Cain. These challenges were also considered and rejected by this court in Brazill. 845 So.2d at 288-89.

We, additionally, reject •. Tate’s state and federal due process claims. Tate contends that it was unfair to apply the felony murder doctrine to a child under fourteen when it has not been proven that the child has the capacity to form criminal intent, and that felony murder based on this statute should not apply to children under fourteen tried as an adult because children of this age cannot reasonably be held criminally responsible as an adult for aggravated child abuse.

The amicus briefs filed in this appeal address several sociological and scientific principles and argue that there is no proof that a' child of Tate’s age possesses an adult capacity to form a criminal intent. The legislature, however,'has supplanted the common law defense of’“infancy” with a statutory scheme, which includes section 985.225, specifying when a juvenile is capable of committing a crime under which he or she should be treated as an adult. See State v. D.H., 340 So.2d 1163, 1165 (Fla.1976)(holding that the common law presumption of incapacity of a minor between the ages of seven and fourteen years to commit a crime no longer applies).

The state also notes that not only is there substantial evidence of intent in this case, but that Tate was permitted to introduce testimony regarding his immaturity. See Bunney v. State, 603 So.2d 1270 (Fla.1992)(allowing maturity to be raised in a defense of lack of intent).

Tate also argues that his rights of privacy were violated because he was denied the confidentiality provisions afforded in the juvenile court.

While the issue before- us in Brazill was not exactly the same,'the reasoning in Brazill, addressing a strikingly similar issue, is compelling. On appeal, Brazill argued “that his due process rights were violated because he was denied the ‘rehabilitative aspect of juvenile court’ solely because the state decided to procure an indictment.” Brazill, 845 So.2d at 287. In rejecting Brazill’s claim, this court explained that there is nothing in the law or constitution requiring children be afforded a special system for juveniles who commit crimes. Id.; Cain, 381 So.2d at 1363. In Brazill, we further explained,

Because section 985.225 implicates no fundamental constitutional right, the applicable test for reviewing a substantive due process challenge to the statute is the rational-basis standard of review. See Shapiro v. State, 696 So.2d 1321, 1326-27 (Fla. 4th DCA 1997). Under this standard, a presumption of constitutionality attaches to a statute; the burden is on the party challenging the statute to establish that the statutory proscription lacks a rational relationship to a legitimate governmental interest.
si; * *
Section 985.225 ... provides treatment as an adult for those offenses serious enough to be punishable by life imprisonment or death.... It is not unreasonable for the legislature to treat children who commit serious crimes as adults in order to protect societal goals.

Id. at 287-88. In Brazill, we also rejected the contention that section 985.225 is unconstitutional when applied to children under fourteen years of age. See id.

And, finally, we reject the argument that a life sentence without the possibility of parole is cruel or unusual punishment on a twelve-year-old child and that it violates Article I, Section 17 of the Florida Constitution and the Eighth Amendment of the United States Constitution. Tate argues that his sentence is greatly disproportionate to the sentences of other juveniles charged with similar acts.

In Blackshear v. State, 771 So.2d 1199 (Fla. 4th DCA 2000), this court rejected a cruel or unusual punishment challenge to three consecutive life sentences imposed for three robberies committed when Black-shear was thirteen. Id. at 1200. Upon his guilty plea, Blackshear was certified as an adult and placed on probation. Id. When he violated his probation at age twenty, he was sentenced to three consecutive life sentences. Id. There, we recognized that “[sentences imposed on juveniles [as adults] of life imprisonment are not uncommon in Florida Courts.” Id. at 1201-02.

In Phillips v. State, 807 So.2d 713 (Fla. 2d DCA 2002), the defendant was fourteen years old at the time he murdered an eight year old child. He was convicted of first-degree murder and sentenced to life imprisonment without the possibility of parole. Id. at 714. The Second District concluded that the legislature can validly apply a sentence of life imprisonment without the possibility of parole to a juvenile convicted as an adult of first-degree murder. Id. at 720. After reviewing applicable principles, the Second District recognized that the Florida Legislature has fixed the second most severe penalty to the most severe crime recognized by our law. Id. at 717. In concluding that there was no violation of proportionality, the Phillips court noted:

The responsibility for making this choice rests with the legislature and is entitled to substantial deference. Further, we recognize that not every citizen nor even every member of this court will agree with the penalty established by the legislature for this crime as applied to this offender, but the legislative determination falls within the bounds of a rational conclusion regarding an appropriate prison term for the crime of first-degree murder. Finally, we find that the penalty of life imprisonment is not grossly disproportionate to the crime of first-degree murder. If, as Justice Kennedy’s opinion noted, “the crime of felony murder without specific intent to kill ... [is] a crime for which no sentence of imprisonment would be disproportionate,” [Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) ] [ ] then the sentence of life imprisonment for the specific intent crime of first-degree piurder cannot be disproportionate. Accordingly, we hold that Mr. Phillips’ sentence does not violate the proportionality principle mandated by the Eighth Amendment.

Id. at 717-18.

Tate’s sentence is supported by a general verdict of first-degree murder. As in Phillips, the fact that Tate’s sentence is to mandatory life without parole does not render it unconstitutional.

As to any other issues raised, we find no reversible error or abuse of discretion. The judgment and sentence are reversed and we remand for a new trial.

WARNER and HAZOURI, JJ., concur.

      . Rules 3.210 and 3.211, Florida Rules Criminal Procedure, require the trial court to determine the competence of a defendant when reasonable grounds exist to believe the accused may be incompetent and rule 3.210(a)(1) provides for a hearing "when necessary for a just resolution of the issues being considered.”

      . We note that Tate contends that Dr. Bourg-Carter’s testimony was over a defense objection and an uncontroverted record that her twenty minute pre-trial competency assessment was not authorized by a court order and violated the speciality guidelines for forensic psychology. Even state forensic expert Dr. Brannon admitted that with children, you must “go deeper” to test their insights to see if they really understand.
      Apparently Tate’s trial counsel learned, after the fact, that Dr. Bourg-Carter claimed to have had the verbal consent of Lionel Tate, his mother, and a defense expert to confer with him for an evaluation.

      . Dr. Bourg-Carter’s examination was not court-ordered and lasted twenty minutes. She had been a licensed psychologist for six years, but was not board certified.


author: TORPY, J.

text:
    LAUREN KYLE HOLDINGS, INC., d/b/a Sago Homes, Appellant, v. HEATH-PETERSON CONSTRUCTION CORP., etc., Appellee.
    Nos. 5D02-3358, 5D03-980.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2003.
    Rehearing Denied Jan. 28, 2004.

      Eric S. Mashburn, Winter Garden, for Appellant, Lauren Kyle Holdings, Inc., d/b/a Sago Homes.
    James S. Toscano and Rachel D. Ge-baide, of Lowndes, Drosdick, Doster, Kan-tor & Reed, P.A., Orlando, for Appellee.
   TORPY, J.

This is a contract dispute concerning the sale of real property for development. Appellant challenges the entry of summary judgment against it resulting from the trial court’s conclusion that Appellant breached a contract by assigning its contractual rights, contrary to an express prohibition against assignment without consent. We conclude that Appellant did not “assign” the contract and accordingly reverse the summary judgment against Appellant.

Appellee (hereinafter “Peterson”) owned real estate in Orange County consisting of 34 lots, referred to as Phillips Cove Condominium. On May 24, 2000, Appellant (hereinafter “Sago”) and Peterson entered into an “Exclusive Sales Agreement” (“Peterson contract”) in which Peterson granted to Sago the exclusive right to purchase the 34 lots. The Peterson contract stated that it was for a term of 540 days and included the following pertinent provisions:

1. PURCHASE AND SALE
Subject to the provisions of this Agreement [Peterson ] grants to Sago the exclusive right to purchase the thirty-four (34) condominium units (lots) on the following terms:
C. Sago shall purchase two (2) units (lots) within sixty (60) days of the effective date of this Agreement.
D. Sago shall commence construction of one (1) spec home and one (1) model home on the initial two (2) units (lots) as soon as possible following the closing of the purchase.
E. Sago will maintain at least one (1) spec home and one (1) model home on the project at all times. However, Sago shall be allowed a thirty (30) day delay between the closing of the sale of the existing spec home or model home and the commencement of construction of the replacement spec home or model home as required under this paragraph.
4. EXCLUSIVE BUILDER
Sago, during the term of this Agreement, shall have the exclusive right to construct homes on the units (lots) in Phillips Cove Condominium.
5. MARKETING
In addition to the construction of the model home/sales office that Sago shall maintain on the property, Sago shall do the following to promote the sale of homes to be constructed by Sago in Phillips Cove Condominium:
A. Sago shall be entitled to install and maintain signage on the property advertising the construction and sale of homes in Phillips Cove Condominium project.
B. Sago shall immediately take over marketing of the Phillips Cove Condominium project.
23. SUCCESSOR AND ASSIGNS
This Agreement shall be construed upon and inure to the benefit of the successors and assigns of the parties hereto. Sago shall not have the right to assign this Agreement without the consent of Ovmer.

Pursuant to the Peterson contract, Sago purchased lots 32 and 33 from Peterson on August 9, 2000. Shortly thereafter, on September 8, 2000, Sago and Sunland Homes (“Sunland”) entered into a “Contract for Sale and Purchase” with addenda (“Sunland contract”) in which Sago sold all 34 lots of the Phillips Cove Condominium to Sunland. The Sunland contract included an “Addendum to Contract for Sale and Purchase,” which expressly took “precedence” over the printed terms in the Contract for Sale and Purchase. The Addendum included the following pertinent provisions:

6. Sunland shall perform Sago’s obligations under the Exclusive Sales Agreement between Sago and Heath-Peterson Construction Corporation dated May 24, 2000 and the Post Closing Agreement dated August 9, 2000. Sunland agrees to hold harmless and indemnify Sago from any liability and/or damages, including attorney fees, which results from Sunland’s failure to perform Sago’s obligations under those agreements, including but not limited to the following obligations:
A. Sunland shall commence construction of one (1) spec home and one (1) model home on the initial two (2) units (lots) as soon as possible following the closing of the purchase.
B. Sunland shall maintain at least one (1) spec home and one (1) model home on the project at all times. However, Sunland shall be allowed a thirty (30) day delay between the closing of the sale of the existing spec home or model home and the commencement of construction of the replacement spec home or model home as required under this paragraph.
C.In addition to the construction of the model home/sales office that Sunland shall maintain on the property, Sunland shall do the following to promote the sale of homes to be constructed by Sunland in Phillips Cove Condominium:
1) Sunland shall be entitled to install and maintain signage on the property advertising the construction and sale of homes in Phillips Cove Condominium project.
2) Sunland shall immediately take over marketing of the Phillips Cove Condominium project.
* :¡; *

It is undisputed that Sago did not seek consent from Peterson prior to entering into the Sunland contract. In his deposition, the president of Peterson stated that he became aware of an involvement by Sunland in mid-September when he was informed that Sunland signs were on the property. He drove to the property, saw Sunland signs everywhere, and then contacted Sago. Sago and Peterson entered into negotiations for Peterson to consent to the Sunland contract. In exchange for its consent to an assignment, one of the things that Peterson requested was one-half of the additional monies Sago made in its deal with Sunland. The negotiations continued until October 13, 2000, when Sago and Peterson reached an impasse.

At the end of October, 2000, Sago sold the initial two lots it had purchased from Peterson to Sunland. Peterson discovered the sale of the two lots by checking the public records. On November 3, 2000, Peterson’s attorney sent a letter to Sago informing Sago that Peterson considered Sago in breach of the Peterson contract.

On November 27, 2000, Peterson filed a complaint against Sago seeking declaratory and injunctive relief. Sago filed an answer, affirmative defenses and counterclaim. Thereafter, Peterson moved for summary judgment on its claims and on Sago’s counterclaim. The trial court granted Peterson’s motion, finding that Sago breached the contract “when [it] assigned all [its] rights under [the Peterson contract] to a third party.” During the pendency of the proceedings below, in July of 2001, Peterson and Sunland entered into a contract for the sale of the lots on terms similar to those contained in the Sunland contract.

This consolidated appeal challenges the summary judgment granted in favor of Peterson and the award of attorney’s fees based thereon. We conclude that the trial court erred in concluding that, by execution of the Sunland contract, Sago violated the prohibition against assignment contained in the Peterson contract.

An assignment is a transfer of all the interests and rights to the thing assigned. Dept. of Rev. v. Bank of America, 752 So.2d 637 (Fla. 1st DCA 2000); Rose v. Teitler, 736 So.2d 122 (Fla. 4th DCA 1999). The assignee thereafter stands in the shoes of the assignor and may enforce the contract against the original obligor in his own name. Dove v. McCormick, 698 So.2d 585 (Fla. 5th DCA 1997); State Farm Fire and Cas. Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990). Because an assignment vests in the assignee the right to enforce the contract, an assignor retains no rights to enforce the contract after it has been assigned. Estate of Basile v. Famest, Inc., 718 So.2d 892 (Fla. 4th DCA 1998).

Here, Sago did not transfer to Sunland the right to purchase lots from Peterson; Sunland only obtained the right to purchase lots from Sago. Sago remained liable to sell lots to Sunland even if Peterson defaulted in its obligation to sell to Sago, and Sunland could not enforce its right to purchase lots directly against Peterson. Moreover, Sago retained the right to purchase lots from Peterson in the event of a default by Sunland. From these circumstances, it is clearly apparent that an assignment did not occur.

The foregoing notwithstanding, Peterson urges that we should affirm the trial court under the “tipsy coachman” rule because the judgment may be supported on grounds not relied upon by the trial judge. Peterson argues that the sale of the two lots to Sunland constituted a breach of the contract because Sago could no longer perform its obligation to construct a model home. We reject this argument for two reasons. First, under the express terms of the Peterson contract, Sago had the right to sell the lots, even the lot on which the model was to be constructed. Second, there is nothing in the language of the Peterson contract that precludes Sago from contracting with others to construct the model home or to perform its other obligations under the contract.

Based on the foregoing, the summary-judgment and judgment awarding attorney’s fees are reversed.

REVERSED and REMANDED.

SHARP, W., and PETERSON, JJ., concur.


author: STRINGER, Judge.

text:
    Stephen GOLDBERG, Appellant, v. Susan WATTS, Appellee.
    Nos. 2D02-5482, 2D03-1552.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
    Rehearing Denied Jan. 30, 2004.
    Stephen Goldberg, pro se.
    Jon D. Parrish of Parrish, White & La-whon, P.A., Naples, for Appellee.
   STRINGER, Judge.

Stephen Goldberg seeks review of the trial court’s order dismissing Goldberg’s action as time-barred by the applicable statute of limitations. Goldberg also seeks review of the order granting Susan Watts attorney’s fees. We affirm the trial court’s order of dismissal without comment and reverse the order awarding attorney’s fees.

Goldberg correctly asserts that the trial court’s order awarding Watts $8015.58 in attorney’s fees and costs is deficient. Absent a statutory basis or applicable contractual provision, “a prevailing party is not generally entitled to an award of attorney’s fees.” N. Lakeland Pain & Trauma, Inc. v. Benson, 813 So.2d 1075, 1076 (Fla. 2d DCA 2002). The order in this case fails to provide a statutory basis for the award, and no contractual provision has been asserted as support for the award.

Though it may be argued that the award in this case is based on section 57.105, Florida Statutes (2002), allowing attorney’s fees as a sanction for raising unsupported claims or defenses or as damages for delay of litigation, the order is still insufficient to support such an award. An order awarding attorney’s fees under section 57.105 must include findings by the trial court to support the award. Mason v. Highlands County Bd., 817 So.2d 922, 923 (Fla. 2d DCA 2002), review dismissed, 839 So.2d 698 (Fla.2003); P.N. v. D.P., 626 So.2d 271, 272 (Fla. 2d DCA 1993). The order in this case includes none of the findings required by section 57.105.

Based on these deficiencies, we reverse the order awarding Watts attorney’s fees and affirm the trial court in all other aspects.

Affirmed in part and reversed in part.

CASANUEVA and WALLACE, JJ., Concur.


text:
    Arthur L. BARNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3289.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
    Rehearing Denied Jan. 30, 2004.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed.'

COVINGTON and WALLACE, JJ., Concur.

CASANUEVA, J., Dissents.


text:
    Michael MOONEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3000.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.
    Rehearing Denied Feb. 10, 2004.

      Richard I. Beilis of the Law Office of Richard I. Beilis, Plantation, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This Court per curiam affirmed Mooney’s appeal of his conviction and sentence. Mooney v. State, 642 So.2d 763 (Fla. 4th DCA 1994). Mooney now appeals the trial-court’s denial of his Rule 3.800 motion to correct sentence based on a scoresheet miscalculation. We affirm the trial court’s denial of Mooney’s motion.

Here, the trial court departed from the guidelines and imposed a life sentence for Mooney’s charge of burglary with a battery. The scoresheet prepared for Mooney’s sentencing presented the recommended guideline range for his offense as nine to twelve years. The trial court departed from these guidelines and sentenced Mooney .'to' life in prison on the basis that Mooney had the apparent ability to carry out his threat to kill the victim. The scoresheet the trial court relied on in sentencing Mooney was in error as the sentencing range should have been 5.5 to 7 years rather than 9 to 12 years due to the improper classification of Mooney’s prior offenses.

Here, the sentence imposed by the trial court was not illegal. Despite the fact that the sentence imposed by the trial court was not illegal, a rule 3.800 motion is also a proper vehicle to raise a scoresheet miscalculation. See Williamson v. State, 683 So.2d 193, 193-94 (Fla. 1st DCA 1996) (stating that “[although the appellant has not alleged that he received an ‘illegal sentence,’ ... his claim is nevertheless cognizable under rule 3.800(a) because he has asserted a scoresheet miscalculation which is apparent from the face of the record”); Baldwin v. State, 679 So.2d 1193, 1194 (Fla. 1st DCA 1996) (discussing State v. Whitfield, 487 So.2d 1045, 1047 (Fla.1986) where the court amended rule 3.800, creating “two distinct claims that may be brought under rule 3.800(a): an illegal sentence or a sentencing scoresheet calculation error”) (citation omitted).

Although the scoresheet miscalculation was properly brought before this Court, the record demonstrates that the trial court would have imposed the same sentence despite the scoresheet miscalculation, and thus, the error was harmless. See Cardali v. State, 794 So.2d 719, 723 (Fla. 3d DCA 2001); Rubin v. State, 734 So.2d 1089, 1089 (Fla. 3d DCA 1999); Hines v. State, 587 So.2d 620, 621 (Fla. 2d DCA 1991). Here, the trial court stated that it was departing because Mooney “hit her in the head and threatened to kill her. I think that’s sufficient grounds and I find he is a menace to society. He is a danger to the community and he ought to be aggravated to protect the community.” In the trial court’s order it similarly stated that it was departing because “the Defendant threatened the victim ... with death during the commission” of his crime, and he “had the apparent ability to carry out” his threat. The difference in the guidelines range stated on the scoresheet would not have changed the fact that the trial court found that Mooney had threatened to kill the victim and that he had the apparent ability to carry out this threat. Thus, as Mooney would have received “the same sentence notwithstanding the scoresheet error,” a remand for the correction of the scoresheet and for resentencing “would serve no useful purpose.” Orsi v. State, 515 So.2d 268, 269 (Fla. 2d DCA 1987).

AFFIRMED.

GUNTHER, SHAHOOD and MAY, JJ., concur.


text:
    Ramon E. RAMIREZ, Appellant, v. SEARS ROEBUCK AND COMPANY and Florida Unemployment Appeals Commission, Appellees.
    No. 3D03-1233.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Keith M. Stern, for appellant.
    John D. Maher (Tallahassee), for appel-lee Commission.
    Before COPE, LEVY and FLETCHER, JJ.
   PER CURIAM.

Ramon Ramirez appeals an order denying unemployment compensation benefits. As we view the matter, the violation of the work rule in this case was attributable at least in part to a breach of procedure by another Sears Roebuck and Company employee who failed to place a warning cone behind the customer’s vehicle when it was taken into the service bay, and on a supervisor’s decision to reassign the mechanic responsible for the tire rotation, before the mechanic had completed his work. While it may be true that the claimant Ramirez should have noticed the tire rotation work on the invoice and checked to make sure it was complete, this amounts at best to an isolated incident of negligence which does not rise to the level of disqualifying misconduct under the unemployment compensation statute. See Philemy v. Florida Dept. of Health, and Rehabilitative Servs., 731 So.2d 64 (Fla. 3d DCA 1999); Easton v. State Unemployment Appeals Comm’n, 693 So.2d 712 (Fla. 4th DCA 1997); Bulkan v. Florida Unemployment Appeals Comm’n, 648 So.2d 846 (Fla. 4th DCA 1995). Accordingly we reverse the order under review and remand with directions to grant the unemployment benefits.

Reversed and remanded.


text:
    Tracy L. COLLIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0480.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2003.
    Rehearing Denied Jan. 26, 2004.
    Nancy A. Daniels, Public Defender, and Anne H. Dunlap, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Karen Armstrong, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Tracy L. Collier, contends that the trial court committed fundamental error when it failed to instruct on the element of intent in charging the jury on the crime of escape. While the escape instruction given deviated from the standard jury instruction by omitting the phrase “intending to avoid lawful confinement,” we conclude that the court adequately instructed the jury regarding the intent element of escape by including the phrase “by leaving without permission” to modify the term “escape” in the third section of the instruction. See Howell v. State, 503 So.2d 409 (Fla. 1st DCA 1987) (holding that escape instruction given to the jury sufficiently articulated the elements of escape as set forth in section 944.40, Florida Statutes, even though it deviated from the standard jury instruction). We therefore decline to find fundamental error as to this issue.

Turning to appellant’s jury challenges, we conclude that the issue was not preserved in regard to juror Mulligan, because Collier did not renew his objection to the ruling on Mulligan or accept the jury subject to his previous objections. See Ault v. State, 866 So.2d 674, 683, 2003 WL 22508502 (Fla. Nov. 6, 2003). Although Collier adequately preserved the issue as to juror Lloyd by renewing his. objection to the court’s refusal'to strike her for cause after all of his peremptory challenges had been exhausted, the record contains insufficient evidence to conclude that the judge abused his discretion by refusing to excuse Lloyd for cause.

AFFIRMED.

WOLF, C.J., ERVIN and PADOVANO, JJ., concur.


author: PLEUS, J. ORFINGER, J.,

text:
    MORTON ROOFING, INC., and Alvin A. Morgan, Appellants, v. Jody D. PRATHER and David B. Prather, Appellees.
    No. 5D02-2570.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.
    Rehearing Denied Jan. 26, 2004.

      Robert E. Biasotti and Cristina Alonso of Carlton Fields, P.A., St. Petersburg, for Appellants.
    D. Culver Smith, III of D. Culver Smith, III, P.A., West Palm Beach, for Appellees.
   PLEUS, J.

The defendants, Morton Roofing, Inc., etc., appeal a final judgment entered in favor of the plaintiff, Jody Prather, following a jury trial on her claim for personal injuries arising from an auto accident.

Following initial jury deliberations, the jury returned a verdict awarding Prather $43,177.65 in past medical expenses, $430,526 for future medical expenses, zero damages for past loss of wages, $963,590 for loss of earning capacity, zero damages for past non-economic (pain and suffering) damages and $250,000 for future non-economic (pain and suffering) damages, for a total of $1,687,293.65 in damages.

Before the jury was discharged, Prather objected to the verdict, asserting it was inconsistent. She contended that the jury was required to enter some amount for past pain and suffering since it awarded damages for future pain and suffering. The defendants agreed that the awards for non-economic damages were inconsistent and needed to be reconsidered. The trial court sent the jury back to reconsider and instructed the jury as follows:

There is an inconsistency in your verdict. You found that there was damages for future pain and suffering and disability, etcetera; but you didn’t find any in the past. To find that she’ll have it in the future but have none in the past is inconsistent, so I’m going to send you back in with the verdict and have you consider that a little more. And if you can reach a determination of any past pain and suffering, disability, etcetera, write that figure in and correct the totals, and then we’ll be finished.

The jury inquired whether it had to keep future non-economic damages the same. The trial judge told them to reconsider the inconsistency of $250,000 for future and nothing in the past. The trial judge stated, “I don’t think they can change the future at this point.” The defendants objected to the instruction that the jury could not reconsider its answer to future non-economic damages.

The jury modified the award for past pain and suffering by drawing a line through the zero and writing in $25,000. The verdict form reflects that at some point the $250,000 award for future pain and suffering had been struck through and the figure $225,000 inserted, but it was then returned to $250,000.

The parties initially disagree as to the standard of review applicable to a trial court’s decision on how a jury is to reconsider an inconsistent verdict. The defendants assert that the trial court’s ruling is a pure question of law subject to de novo review.

Prather counters that abuse of discretion is the proper standard. She maintains that this issue is one involving supervision over the course of the trial and analogizes the issue of resubmission of the verdict to correct a legal error to the consideration by the trial court of a motion for new trial. See Allstate Ins. Co. v. Manasse, 707 So.2d 1110 (Fla.1998); Cloud v. Fallis, 110 So.2d 669 (Fla.1959). She argues that the trial court had a superior vantage point to judge the validity of the verdict in the context of the claims asserted and evidence presented. She further points out that under section 768.74(6), Florida Statutes, the legislature has vested in the trial court the discretionary authority to review damage awards in light of excessiveness or inadequacy. After careful consideration, we conclude that our review of this issue is de novo.

The parties conceded below that the verdict for non-economic damages was legally inconsistent and needed to be reconsidered. This concession implicates the general principle set out in Stevens Markets, Inc. v. Markantonatos, 189 So.2d 624 (Fla.1966). Until a verdict in a civil action is accepted by the trial court, the entire case remains in the hands of the jury. The Stevens Markets court quoted the following passage from Tobin v. Garry, 127 So.2d 698, 700 (Fla. 2d DCA 1961):

The validity of a verdict is a question for the Court and until it is received and recorded by the Court, it is still within the control of the jurors. See Nelson v. McMillan, 151 Fla. 847, 10 So.2d 565. It is clearly the right and duty of the Court before discharging the jurors to call their attention to a defective verdict and give them an opportunity to return a proper verdict. Rentz v. Live Oak Bank, 61 Fla. 403, 55 So. 856. When they are sent back to further [sic] or reconsider the matter, the case is still in their hands. They are not bound by their former action. They are at liberty to review the case and to bring in an entirely new verdict.

189 So.2d at 626.

Stevens Markets involved an action for damages for false imprisonment, unlawful detention, unauthorized search and battery arising out of the detention and search of the minor plaintiff on suspicion of shoplifting. The jury verdicts as initially returned were for zero compensatory damages and $5,000 punitive damages for the minor plaintiff and $1,500 compensatory damages for the plaintiffs father. The trial court announced that the jury had obviously misunderstood the instructions and directed the jury to reconsider the compensatory award to the minor plaintiff without further considering the punitive damages awarded to her or the compensatory award to her father. The supreme court reversed the district court of appeal’s affir-mance of this ruling, finding it was legal error.

Stevens Markets reflects that under Florida law, where a defective verdict is returned and the defect discovered before the jury is discharged, resubmission by the court is a legal duty, not simply a discretionary call.

This is true irrespective of whether Prather is correct that the 1986 Tort Reform Act, which requires itemized damage verdicts in personal injury actions, modifies Stevens Markets in a personal injury context. If resubmission of less than the entire verdict is thereby authorized, it is because of a statutory modification in the law, not because the trial court can make a judgment call based on the circumstances of the particular case before it.

As to the merits of resubmitting less than the entire verdict for reconsideration, Prather asserts that Stevens Markets involved general verdicts and an inconsistency that arose because an award of one element of damage (compensatory) was a legal prerequisite to the award of the other element of damage (punitives). However, the decision is not limited to its facts. Rather, we read Stevens Markets as standing for the proposition that where a legally defective verdict is returned, the trial court has a duty to instruct the jury to return a proper verdict and the cause is returned to the jury which is then at liberty to bring in an entirely new verdict. The parties in this case agreed that the verdict was legally flawed and with the concurrence of both parties, it was rejected by the court and the cause returned to the hands of the jury. Whether the jury was free to return an entirely new verdict or was properly limited to reconsideration of only its decision to award zero past non-economic damages depends on whether the rule in Stevens Markets has been legislatively modified in personal injury actions where itemized damage verdicts are employed.

While Prather asserts that logic dictates the 1986 Tort Reform Act mandating use of itemized verdict forms permits partial reconsideration by the jury of a damage award in a personal injury context, the defendants point out that Stevens Markets has repeatedly been cited in personal injury cases since 1986 for the proposition that when a trial court resubmits a defective verdict to the jury, the entire cause remains in the hands of the jury and the jurors are not bound by their former action. See Streacker v. Hinton, 742 So.2d 426 (Fla. 1st DCA 1999); Berg v. Sturgeon, 718 So.2d 887 (Fla. 4th DCA 1998); Hollywood Corporate Circle v. Amato, 604 So.2d 888 (Fla. 4th DCA 1992); Gen. Contractors of Am. v. Stinson, 524 So.2d 1148 (Fla. 3d DCA 1988).

Prather counters by citing decisions such as Auto-Owners Insurance Co. v. Tompkins, 651 So.2d 89 (Fla.1995), wherein the trial court had erroneously instructed the jury that it could award future economic damages only if it found permanent injury. The supreme court held that permanent injury is not a prerequisite to an award for future economic loss and remanded the case for a new trial on the issue of future economic damages but not on past economic damages which the jury had awarded. See also Dyes v. Spick, 606 So.2d 700 (Fla. 1st DCA 1992) which held that a verdict awarding past non-economic damages was contrary to the manifest weight of the evidence. The appellate court remanded for a new trial on that issue alone and not on the future non-economic damage issue. Prather also cites Edward M. Chadbourne, Inc. v. Van Dyke, 590 So.2d 1023, 1025 (Fla. 1st DCA 1991), which rejected the contention that once the trial court deemed an award of past economic damages defective, it was obligated to grant a new trial on all the elements of damages.

These cases, cited by Prather, as well as other decisions, such as ITT Halford Insurance Co. v. Owens, 816 So.2d 572 (Fla.2002), are distinguishable from the situation presented here because they involved errors in jury verdicts, which had been accepted by the trial court and the jury discharged. The instant case involves a verdict which had not achieved finality when the trial court sought to limit the jury’s reconsideration. While errors in verdicts which have achieved finality, may, in appropriate eases, be corrected by a trial or appellate court without the need to reject the legally-sound aspects of the verdict, a verdict which has not become final is subject to reconsideration in its entirety by the jury. The trial court erroneously resubmitted the cause to the jury solely on the portion of the verdict it deemed to be inconsistent.

Prather asserts that no prejudice resulted from this limited resubmission, or that any harm, at most, amounted to $25,000. The contention that any harm is entirely speculative, and thus not prejudicial error, is without merit. Such an assertion would preclude relief in nearly every case of an erroneous limited resubmission, since without violating the sanctity of the jury room, it can rarely be,determined what the jury would have done had a proper resubmission been ordered.

We likewise decline Prather’s invitation to quantify the prejudice at $25,000. This argument is predicated on a review of the verdict form which indicates that, at some point, the $250,000 award for future pain and suffering had been struck through, and reduced to $225,000, but was eventually returned to the $250,000 figure. It would be pure conjecture that the jury’s intent was to award a total of $250,000 for pain and suffering, but its intent was thwarted by .the trial court’s erroneous ruling. It is not clear that the jury actually settled on $225,000, or whether that figure was inserted as part of the continuing deliberations. We refuse to speculate as to the jury’s intent. What is clear is that the trial court erroneously limited the jury’s reconsideration of its verdict.

The defendants additionally argue that the trial court committed reversible error by instructing the jury on concurring cause. The defendants point out that in this case, there were two separate automobile accidents, separated by two weeks and completely unrelated, other than by the fact that Prather was involved in each accident.

Trial courts are generally accorded broad discretion in formulating jury instructions and a trial court’s decision to grant or withhold a' jury instruction is reviewed for abuse of discretion. Barbour v. Brinker Fla., Inc., 801 So.2d 953 (Fla. 5th DCA 2001). The trial court’s decision to give a particular instruction will not be reversed “unless the error complained of resulted in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury.” Barbour, 801 So.2d at 959 (quoting Barton Protective Ser., Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999)).

Florida Standard Civil Jury Instruction 5.1(b) on concurring causes provides:

In order to be regarded as a legal cause of [loss] [injury] [or] [damage], negligence need not be the only cause. Negligence may be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with the [act of another] [some natural cause] [or] some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such [loss] [injury] [or] [damage].

The instruction on concurring causes sought by the Prathers and read to the jury, stated:

In order to be regarded as the legal cause of loss, injury, or damage, negligence need not be the only cause. Negligence may be a legal cause of loss, injury, or damage, even though it operates in combination with the act of another if the negligence contributes substantially to producing such loss, injury, or damage. Concurring causes may be two separate and distinct causes that operate contemporaneously to produce a single injury.

(Emphasis added).

The defendants maintain that: (1) no instruction on concurring cause should have been given, that such an instruction is warranted only when “two [or more] separate and distinct causes ... operate contemporaneously to produce a single injury,” Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla.1990) (emphasis added), and (2) alternatively, the instruction as modified was erroneous and misled the jury.

The defendants rely for reversal on Parker v. Hoppock, 695 So.2d 424 (Fla. 4th DCA 1997). In that case, the trial court’s refusal to give a concurring cause instruction was sustained despite the fact that the plaintiffs’ claims arose from two interrelated accidents. In the first accident, the defendant Hoppock lost control of his vehicle and struck another vehicle. The plaintiffs, Ralph and Ricky Parker, ran toward the accident scene to render assistance and were seriously injured when a vehicle driven by another defendant, Hart, collided with the disabled vehicles, striking the plaintiffs in the process. The appellate court explained there was no evidence that Hoppock’s actions operated contemporaneously with the actions of Hart.

The instant case is entirely distinguishable in that, unlike the Parkers’ situation, there was evidence here that Prather did, in fact, sustain injuries attributable to the first accident which were medically relevant to injuries she suffered in the second collision. Prather points out that “concurring” does not necessarily equate to “simultaneous” negligent acts and refers to the following discussion in Hart v. Stern, 824 So.2d 927, 930-31 (Fla. 5th DCA 2002):

Florida courts generally define concurring causes as “two separate and distinct causes that operate contemporaneously to produce a single injury.” Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla.1990) (citation omitted). “Although the term ‘concurring’ suggests that such causes of damage must occur ‘simultaneously,’ it has been held that temporally preceding conditions can conjoin with a defendant’s subsequent alleged negligence.” Zigman v. Cline, 664 So.2d 968, 970 (Fla. 4th DCA), review denied, 661 So.2d 823 (Fla. 1995)....
If a defendant’s negligence operates in combination with the negligent act of another or a natural cause such as the plaintiffs pre-existing physical condition to cause an injury, the concurrent causation instruction should be given. Specifically, in medical malpractice cases, concurrent causes occur when the injury is caused by the negligence of a health care provider acting upon and combined with the plaintiffs pre-existing condition.
The primary purpose of the concurring cause instruction is to “negate[ ] the idea that a defendant is excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage.” Fla. Std. Jury Instr. (Civ.) 5.1(b) note on use; Zigman, 664 So.2d at 969; see also Hernandez v. State Farm Fire & Cas. Co., 700 So.2d 451, 453 (Fla. 4th DCA 1997) (“The purpose of the concurring cause instruction is to inform the jury that the defendant is not excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage.”) (citation omitted).

(Footnote omitted).

The Stern court cited the decision in Thomason v. Gordon, 782 So.2d 896 (Fla. 5th DCA 2001), wherein this court ordered a new trial finding the trial court erred in failing to give a concurring cause instruction. Thomason involved an automobile negligence action wherein the plaintiff had (as here) sought instructions on both aggravation of a pre-existing injury and concurring cause based on the premise that there was evidence she had a pre-existing condition. The plaintiff argued that her pre-existing condition should be considered a concurrent cause with a defendant’s negligence. This court agreed that both the concurring cause and pre-existing condition instruction should have been given:

Several courts have recognized that where a defendant’s negligence acts in combination with a plaintiffs physical condition to produce an injury, the concurring cause instruction 5.1(b) is mandated. Esancy v. Hodges, 727 So.2d 308 (Fla. 2d DCA 1999) (trial court erred in failing to instruct the jury on concurrent cause where the evidence revealed that the negligent operation of the defendant’s motor vehicle combined with Ms. Esancy’s pre-existing back condition to cause her injury). The standard jury instruction on aggravation of a pre-exist-ing injury or defect is a damage instruction. Gross v. Lyons, 721 So.2d 304 (Fla. 4th DCA 1998), review granted, 732 So.2d 326 (Fla.1999), and decision approved, 763 So.2d 276 (Fla.2000). That is, once a jury determines that the defendant’s negligence caused in full or in part the plaintiffs injury, instruction 6.2(b) would permit the jury to assess damages against the negligent defendant for only that portion of the injury resulting from the aggravation or acceleration of the pre-existing condition or the activation of a latent condition. It has repeatedly been held that to avoid any confusion concerning the jury’s ability to hold a defendant liable where two or more causes join to produce an injury, a trial court should read the instruction on concurrent cause, in addition to the damage instruction on aggravation. See Esancy, supra; Dutcher v. Allstate Ins. Co., 655 So.2d 1217 (Fla. 4th DCA 1995); Marinetti v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992), review denied, 620 So.2d 761 (Fla.1993).

782 So.2d at 898-99.

Thomason supports the giving of a concurring cause instruction in this case. The defendants disputed at trial whether the second accident contributed to Prather’s more serious injuries. However, there was medical evidence that the defendants’ negligence combined with Prather’s physical condition resulting from the earlier accident to cause her injury, ie., that the two accidents joined to produce her injury. Dr. Cwikla’s expert testimony was that Prather’s disc injury resulted from a combination of the two accidents.

The instruction as read comports with Thomason and Esancy which authorize an instruction on concurring cause where the defendant’s negligence acts in concert with a pre-existing medical condition of the plaintiff to cause an injury. The defendants erroneously focus on the fact that the two automobile accidents did not occur at the same time, rather than that their negligence combined with the victim’s preexisting physical condition, caused by the earlier accident, to produce the injury.

Because the directed verdict on the defendants’ liability for the accident was not challenged, and because of the uncertainty of knowing what the jury actually had in mind, we believe that justice is best served by a new trial on the issues of causation and damages. Accordingly, we reverse and remand for a new trial on the issues of causation and damages.

AFFIRMED IN PART, REVERSED and REMANDED IN PART.

PETERSON, J., concurs.

ORFINGER, J., concurs specially, with opinion.

ORFINGER, J.,

concurring specially.

I concur entirely with the court’s opinion. I write separately to point out that while the verdict initially delivered by the jury may have been against the manifest weight of the evidence or was otherwise inadequate, I do not believe that the verdict was inconsistent as a matter of law, requiring further consideration by the jury.

As the court’s opinion observes, Ms. Prather was awarded over $43,000 for past medical expenses, $250,000 for future non-economic (pain and suffering) damages, but nothing for past pain and suffering. Given the severity of Ms. Prather’s injuries, on its face, it seems illogical to conclude that her past medical expenses could be so high, without enduring any associated pain and suffering, or that she would suffer so significantly in the future but had not so suffered in the past. But that factual resolution by the jury does not create a legally inconsistent verdict.

“A verdict is clothed with a presumption of regularity and is not to be disturbed if supported by the evidence.” Sweet Paper Sales Corp. v. Feldman, 603 So.2d 109, 110 (Fla. 3d DCA 1992) (citing Gould v. Nat’l Bank of Fla., 421 So.2d 798, 802 (Fla. 3d DCA 1982)). The fourth district court has defined an inconsistent verdict as follows:

Where the findings of a jury’s verdict in two or more respects are findings with respect to a definite fact material to the judgment such that both cannot be true and therefore stand at the same time, they are in fatal conflict. In such circumstances, contradictory findings mutually destroy each other and result in no valid verdict, and a trial court’s judgment based thereupon is erroneous.

Craioford v. Dimicco, 216 So.2d 769, 771 (Fla. 4th DCA 1968).

Giving clear meaning to the term “verdict against the manifest weight of the evidence” has been even more problematic. As the court explained in Ford v. Robinson, 403 So.2d 1379, 1382-83 (Fla. 4th DCA 1981):

The power of the trial judge to order a new trial derives, in other words, from the equitable concept that neither a wronged litigant nor society itself can afford to be without some means to remedy a palpable miscarriage of justice. Unfortunately, the high moral appeal of this sentiment is directly proportional to the difficulty which the courts have encountered in attempting to express it as an objective standard.
* * *
[T]he trial judge who must decide whether to grant a new trial on the proffered ground that the jury verdict was “contrary to the manifest weight of the evidence” faces a far more difficult task. The phrase itself is not easy to define. In Cloud v. Fallis, [110 So.2d 669 (Fla.1959)], the Supreme Court gave the phrase its modern meaning when it resolved two conflicting lines in its prior decisional law by announcing a preference for the “broad discretion rule” over the “substantial competent evidence rule.” Briefly stated, under the “broad discretion rule” a trial judge may grant a new trial “when the verdict is contrary to the ‘manifest weight and probative force of the evidence and (the) justice of the cause’ ” requires it. 110 So.2d 671. This rule affords the trial judge a much broader discretion than that afforded by the conflicting “substantial competent evidence rule,” under which the judge was required to uphold any jury verdict supported by “substantial competent evidence and (in) the absence of any showing the jury had been deceived about the force and credibility of the evidence or influenced by outside considerations.” Id.
It appears that the grant of authority to a trial judge to order a new trial when he concludes that a verdict is contrary to the manifest weight of the evidence, simply constitutes a judicial policy decision that some check on the jury’s authority is necessary in cases where the evidence is not so one-sided as to merit a directed verdict, but yet is sufficiently one-sided to make it appear that a finding contrary to that evidence would constitute a miscarriage of justice, although there may not be identifiable error in the record to explain the jury’s verdict. The test to be applied by a trial judge is admittedly to some degree subjective. Judges may differ in their views of “manifest weight of the evidence” in a given case. However, because the trial judge is on the spot and has some ability to measure not only the tangible evidence but also the intangible, such as the credibility of witnesses, his decision is given great deference. The only real counter-check on the abuse of a trial court’s discretion is the existence of the corollary rule that the authority be exercised only in those rare instances where it is clear that the jury has gone astray.

(footnote omitted).

Here, the verdict may well have been against the manifest weight of the evidence, but it was not inconsistent as a matter of law. As such, I do not believe the jury should have been directed to consider the verdict further. Given the immediacy of the problem caused by the requirement that an inconsistent verdict be reconsidered before the jury is discharged, it is understandable that the parties and the trial judge confused the similar, but distinct, problems presented by a verdict that is against the manifest weight of the evidence or is otherwise inadequate as opposed to a verdict that is legally inconsistent.

If this court was reviewing an order granting a new trial on the grounds that the verdict was contrary to the manifest weight of the evidence or was inadequate, I would have no difficulty in affirming it. But, because I believe that the trial court, at the request of counsel for both parties, erroneously concluded that this verdict was legally inconsistent, a new trial is required on the issue of causation and damages.

      . The trial court directed a verdict on the defendant’s negligence and the lack of comparative negligence. This ruling is not challenged on appeal.

      . It is unclear whether the verdict was deemed inconsistent with the evidence or inconsistent because of no award for past pain and suffering, yet $250,000 for future pain and suffering. Regardless, both agreed it was "inconsistent.”

      . See § 768.77, Fla. Stat.

      . Judge Harris dissented in Thomason asserting, inter alia, that the trial court properly declined to give the concurring cause instruction where the defendant's negligence acts in conjunction with the plaintiff’s pre-existing condition. However, even Judge Harris observed that the instruction is appropriate “when there are consecutive accidents leading to an injury which cannot be apportioned. ...” 782 So.2d at 900.

      . A jury verdict is contrary to the manifest weight of the evidence only when the evidence is "clear, obvious, and indisputable.” Perenic v. Castelli, 353 So.2d 1190, 1192 (Fla. 4th DCA 1977).