author: CASANUEVA, Judge.

text:
    Steven SEABURY, Rebecca Martin, Walter Kuck, individually and on behalf of all persons similarly situated in the State of Florida, Appellants, v. CHEMINOVA, INC.; Cheminova A/S; and Auriga Industries A/S, Appellees.
    No. 2D03-2139.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.

      Bryan K. McMinn of Maher, Guiley & Maher, P.A., Winter Park, and Spiro J. Verras, of Jones, Verras & Feiberg, L.L.C., New Orleans, for Appellants.
    Joseph H. Varner of Knopik Varner Moore, Tampa, Christopher G. Kelly of Holland & Knight, LLP, New York, and Stacy D. Blank of Holland & Knight, LLP, Tampa, for Appellees.
   CASANUEVA, Judge.

The plaintiffs in this case have appealed from an order dismissing their case for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). They contend that the court erred in dismissing their action because, even though no activity appeared on the face of the record for the year preceding the motion to dismiss, their prosecution of a related federal court ease precluded dismissal. We reject their argument and affirm.

Steven Seabury, Rebecca Martin, and Walter Kuck filed a class action complaint against Cheminova, Inc., Cheminova A/S, and Auriga Industries A/S for damages they sustained as a result of the spraying of the defendants’ product, Fyfanon, during the Medfly Eradication Program of 1997 or 1998. Their counts included strict products liability, negligence per se, negligence, negligent infliction of emotional distress, and toxic trespass. Specifically, the plaintiffs claimed that they sustained legally cognizable damages from actual or potential exposure to the Fyfanon product, including past or future medical expenses, physical pain and suffering, emotional distress, temporary relocation damages, lost income, and other pecuniary damages.

The defendants filed a motion to dismiss or stay this state court action on the ground that a pending federal court action titled Rink v. Cheminova, Inc., Case No. 99-cv-1097-T-26-TBM (the “Rink action”), was an essentially identical action filed by plaintiffs’ counsel against the same three defendants. The plaintiffs opposed a stay, however, contending that a stay is proper only when the related litigation is “between the same parties on the same issues” and where the courts involved “have concurrent jurisdiction over the same parties and the same subject matter.” Schwartz v. DeLoach, 453 So.2d 454, 455 (Fla. 2d DCA 1984). However, as to this state court matter, the plaintiffs asserted, there was no pending litigation in any other court between these plaintiffs and these defendants. In particular, the injuries sustained by the Rink plaintiffs were individualized and of much greater severity than those sustained by these plaintiffs and included, for example, permanent and complete disability as a result of respiratory failure, development of seizure and autoimmune disorders, toxemia, and premature birth of a baby with a damaged respiratory system. These state court plaintiffs, however, could not meet the $75,000 federal court jurisdictional threshold and sustained less severe damages that could be easily categorized: transient personal injuries, forced evacuation, and damage to automobile paint. In the conclusion of their memorandum in opposition to a stay, the plaintiffs asserted: “Neither the plaintiffs in this suit nor the classes they seek to represent have claims pending before any other court.”

Ironically, just as this theory could prevent a stay of the action when sought by the defendants, it is also the basis for a finding that the plaintiffs could not avoid dismissal for failure to prosecute on the ground of a related court action. When a motion to dismiss for failure to prosecute is filed pursuant to rule 1.420(e), “[fjirst, the defendant is required to show there has been no record activity for the year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed.” DelDuca v. Anthony, 587 So.2d 1306, 1308-09 (Fla.1991). To establish good cause, the plaintiff must show that its nonrecord activities were “done in good faith and moved the case forward to a conclusion.” Metro. Dade County v. Hall, 784 So.2d 1087, 1091 (Fla.2001). In this case, the plaintiffs relied upon their prosecution of the Rink action to establish good cause, but they failed to do so because the Rink case did not share identical parties and claims with this case.

A number of cases have examined whether the pendency of a related action can provide justification for apparent no-nactivity in a case subject to dismissal for failure to prosecute. Recently, the Third District, in Lisa, S.A. v. Gutierrez, 824 So.2d 975, 976 (Fla. 3d DCA 2002) (quoting Mankowitz v. Fishermen’s Hospital, Inc., 753 So.2d 753, 754 (Fla. 3d DCA 2000)), followed the rule that the “pendency of a parallel lawsuit involving the same parties constitutes good cause to avoid dismissal.” Here, however, the parties are not identical; these parties are asserting claims different in nature and degree from those filed by the Rink plaintiffs. In contrast, the Lisa, S.A. plaintiff had filed two different lawsuits against different defendants, but two of the defendants were common to both lawsuits. Furthermore, the common defendants contested service of process in both lawsuits and actively litigated the issue in the related case while the other case remained dormant. In reversing the order dismissing the case for lack of prosecution, the Third District observed that its decision supported that court’s “preference for adjudicating a case on its merits.” Lisa, S.A., 824 So.2d at 976 (citing Rubenstein v. Iolab Corp., 642 So.2d 818 (Fla. 3d DCA 1994)).

The Third District’s philosophy is also apparent in several other decisions from that court, including Maler by and through Maler v. Baptist Hospital of Miami, Inc., 532 So.2d 79, 79 (Fla. 3d DCA 1988), in which the court held that the plaintiff had demonstrated good cause for avoiding dismissal for lack of prosecution because “there was extensive record activity in an identical lawsuit between the same parties, the instant lawsuit being a ‘protective’ lawsuit in the event the other lawsuit was dismissed.” And in Insua v. Chantres, 665 So.2d 288, 289 (Fla. 3d DCA 1996), the related lawsuit was not between identical parties, but it involved an insurance coverage dispute by the company insuring the defendant in plaintiff Insua’s personal injury action. The good cause for the plaintiffs delay in prosecuting the lawsuit was directly attributable to the parties’ agreement — at the urging of the insurance company-to postpone their litigation while the coverage issues were decided. Accordingly, the court’s decision to dismiss the case on its own motion was overturned by the Third District, which called the ruling “plain error.” Id.

Several common threads arise in those cases where the courts have found that the plaintiffs failure to prosecute its lawsuit constituted good cause to avoid dismissal when related cases are pending. If the parties and claims are identical, as in Mankowitz, or if the cases had been consolidated for discovery and trial, as in Stephens v. Bay Medical Center, 742 So.2d 297 (Fla. 1st DCA 1998), or if something in the related case prevented the dormant action from proceeding, like the agreement to stay pending appeal in Insua, the courts will look more favorably on the plaintiffs good cause argument. However, this case does not arise from any of those situations. Here, the same plaintiffs’ attorneys — not the same plaintiffs — sued the same defendants but asserted different claims in different forums.

This case bears some resemblance to Palokonis v. EGR Enterprises, Inc., 652 So.2d 482 (Fla. 5th DCA 1995), where the plaintiff had filed similar actions against other residents in the same mobile home park, and one of the “related” cases was on appeal. Therefore, in an alleged attempt to “conserve ‘judicial resources,’ the appel-lee [plaintiff] decided unilaterally to delay prosecution of the remaining cases until the appeal was decided.” Id. at 483. The Fifth District reversed the trial court’s failure to dismiss the case for lack of prosecution, holding that the court abused its discretion in finding that the plaintiff demonstrated good cause for its lack of attention to the lawsuit during the relevant one-year period.

The trial court’s good cause determination in the context of rule 1.420(e) is reviewed by this court under the abuse of discretion standard. See Metro. Dade County v. Hall, 784 So.2d at 1090 n. 4. We understand the competing interests implicated in these situations. On the one hand, as Justice Lewis stated in dissent in Moossun v. Orlando Regional Health Care, 826 So.2d 945, 954 (Fla.2002) (Lewis, J. dissenting), “The chief concern of the courts should not be resolution for the sake of finality only, but it should be to render justice based upon the merits of the action in a timely, thoughtful manner.” On the other hand, as Justice Wells pointed out in his concurrence to the same case, the defendants’ concerns must also be considered:

The defendants’ interests must be protected and should be of equal concern to our courts as are the interests of those who, by paying a filing fee, become plaintiffs and have the power to have these defendants brought into court. It is a reality that being sued is costly to the party sued in money, emotion, time, and many other tangible and intangible ways. This is true even when the suit is totally meritless.

Id. at 952 (Wells, J. concurring). In this case, where the plaintiffs allowed this lawsuit to linger for more than a year preceding the filing of the motion to dismiss for failure to prosecute, we hold that the trial court did not abuse its discretion: the plaintiffs’ reliance upon their attorneys’ pursuit of the same defendants for different claims in a federal court case did not constitute good cause for their failure to move this case toward resolution.

Affirmed.

ALTENBERND, C.J., and FULMER, J., Concur.

      . Our record does not reflect that the trial court ever ruled on the motion to dismiss or, in the alternative, to stay this action in favor of previous filed action.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William WACHTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3499.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.
   PER CURIAM.

William Wachter challenges the order of the trial court denying his postconviction motions filed pursuant to Florida Rules of Criminal Procedure 3.800(a) and 3.850. We affirm without prejudice to any right Wachter might have to file a facially sufficient claim pursuant to rule 3.800(a) alleging that the trial court, in case number 91-1530, illegally imposed consecutive habitual offender sentences for offenses that arose out of a single criminal episode.

A claim that a trial court imposed consecutive habitual offender sentences in violation of Hale v. State, 630 So.2d 521 (Fla.1993), is a cognizable rule 3.800(a) claim “if the determination of whether the offenses were part of the same criminal episode can be made without resorting to extra-record facts.” West v. State, 825 So.2d 499 (Fla. 2d DCA 2002). This court has held that to present a facially sufficient 3.800(a) Hale claim, the mov-ant must allege that the claim can be determined from the face of the record. See Watson v. State, 828 So.2d 1054, 1054 (Fla. 2d DCA 2002). However, in Burgess v. State, 831 So.2d 137, 141 (Fla.2002), the supreme court held that a trial court cannot rely on hearsay documentation that is contained in the trial court record, such as a police report, to determine a 3.800(a) Hale claim. The trial court may rely on any portion of the trial court record that is not hearsay, such as a trial transcript. See Burgess, 831 So.2d at 142; Downs v. State, 870 So.2d 46, 46 n.1, 2003 WL 22316799 (Fla. 2d DCA Oct.10, 2003).

Thus, in light of Burgess, we conclude that a movant who files a 3.800(a) claim that his consecutive habitual offender sentences are in violation of Hale must not only allege that the claim is determinable from the face of the record, but must identify with particularity the record documents upon which he relies in seeking a determination of the claim. If the movant fails to do so, his claim will be considered facially insufficient. Because Wachter did not identify the record documents from which his claim could be determined, we affirm the order of the trial court without prejudice to any right he might have to file a facially sufficient rule 3.800(a) Hale claim in accordance with the principles outlined in this opinion.

Affirmed.

WHATLEY, CASANUEVA, and SILBERMAN, JJ., concur.


author: VILLANTI, Judge.

text:
    F. Annette MORRONI, Appellant, v. Marshall A. PEEPLES, Trustee of Corlico Property Land Trust 3 and 3B, Appellee.
    No. 2D03-2532.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.
    Ralph P. Richard of Law Office of Ralph P. Richard, Fort Myers, for Appellant.
    W. Gus Belcher, II, of Nuckolls, Johnson & Belcher, P.A., Fort Myers, for Appellee.
   VILLANTI, Judge.

F. Annette Morroni appeals from the final judgment purporting to dismiss her action against Marshall A. Peeples, as Trustee of the Corlico Property Land Trust 3 and 3B, with prejudice. Peeples concedes that the trial court was without jurisdiction to enter the final judgment. See Fleet Servs. Corp. v. Reise, 775 So.2d 383, 384 (Fla. 2d DCA 2000); Ambory v. Ambory, 442 So.2d 1087, 1087-88 (Fla. 2d DCA 1983). Accordingly, we vacate the purported final judgment.

Reversed.

CASANUEVA and DAVIS, JJ., Concur.


author: STRINGER, Judge.

text:
    Edward FORD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2687.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.
   STRINGER, Judge.

Edward Ford challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). On October 9, 1998, Ford was sentenced as a habitual felony offender to life in prison for count one, armed burglary, thirty years in prison for count two, aggravated battery, life in prison for count five, armed burglary, life in prison for count six, attempted first-degree murder, thirty years in prison for count eight, possession of a firearm by a convicted felon, and ten years in prison for count nine, aggravated stalking. We reverse the order of the trial court with regard to the sentence imposed for count six, attempted first-degree murder with directions for the trial court to vacate that sentence and resentence Ford. We affirm without comment the order of the trial court with regard to the other sentences.

As this court stated in Everett v. State, 770 So.2d 192, 193 (Fla. 2d DCA 2000), prior to the enactment of chapter 95-182, Laws of Florida, a defendant convicted of a life felony was not subject to an enhanced punishment as a habitual offender. However, the Florida Supreme Court in State v. Thompson, 750 So.2d 643 (Fla.1999), struck down chapter 95-182 as unconstitutional. The imposition of a habitual offender sentence for a life felony can be challenged under the authority of Thompson if the life felony was committed between October 1, 1995, and May 24, 1997. See Kinsey v. State, 831 So.2d 1253 (Fla. 2d DCA 2002). Because Ford’s offense occurred on May 8, 1997, Ford’s habitual felony offender sentence for attempted first-degree murder, a life felony, falls within the window of Thompson. His habitual felony offender sentence, therefore, must be reversed.

On remand, Ford must be resentenced under the 1994 version of the sentencing guidelines since his offense date is also within the window period for relief pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). In addition, as authorized by this court in Everett, the trial court at resen-tencing has the discretion to impose an upward departure sentence if one or more permissible reasons are applicable.

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

WHATLEY and WALLACE, JJ„ concur.


text:
    James Ray SPRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3461.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.
   CASANUEVA, Judge.

James Ray Spradley appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. According to Spradley, he served fifteen years in prison followed by fifteen years’ probation. He subsequently violated his probation, and pursuant to a negotiated plea agreement, he pleaded guilty and was sentenced to twenty-seven years in prison with credit for time served.

In his motion, Spradley alleged that his counsel misadvised him that, upon sentencing for the violation of probation, he would receive credit for all previously earned gain time when the Department of Corrections (DOC) applied the credit for time served. Spradley sought to withdraw his plea, claiming that had he known that he would not receive the previously earned gain time, he would not have pleaded guilty to violating his probation.

Counsel’s misrepresentation about the length of sentence or eligibility for gain time can form the basis for postcon-vietion relief in the form of leave to withdraw a guilty plea. See Jones v. State, 834 So.2d 226 (Fla. 2d DCA 2002). However, the trial court denied Spradley’s claim because the motion was untimely; Spradley’s judgment and sentence became final in February 2001, and he did not file the motion until April 2003.

Spradley filed a motion for rehearing, alleging that he did not discover that the DOC had forfeited his gain time until July 2001 when the DOC responded to his administrative grievance in which he sought information about the application of his previously earned gain time. Therefore, he claimed he had until July 2003 to file his rule 3.850 motion. The trial court denied the motion for rehearing, finding no legal reason compelling a rehearing.

Spradley could not have known about the DOC’s forfeiture of gain time at the time of sentencing if he had not been advised of the possibility of forfeiture by counsel or the trial court. Spradley did not discover that his gain time had been forfeited until he filed administrative grievances with the DOC. Once the DOC responded and informed him of the forfeiture, Spradley had two years to file a rule 3.850 motion based on this newly discovered information. See Anderson v. State, 862 So.2d 924 (Fla. 2d DCA 2003); Graddy v. State, 685 So.2d 1313, 1314 (Fla. 2d DCA 1996). However, Spradley’s motion for rehearing, which alleged these additional facts, was not under oath, and therefore the trial court was not required to consider the motion for rehearing. See Melton v. State, 720 So.2d 577 (Fla. 1st DCA 1998).

Accordingly, we affirm the trial court’s order denying Spradley’s rule 3.850 motion. Our affirmance is without prejudice to Spradley’s right to file a facially sufficient rule 3.850 motion, within sixty days of the date of the mandate in this proceeding, based on newly discovered evidence of counsel’s misadvice. Such motion shall not be deemed successive.

Affirmed.

WHATLEY and WALLACE, JJ., concur.


author: FULMER, Judge.

text:
    Albert GRAY, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4316.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.
   FULMER, Judge.

Albert Gray, Sr. appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. Gray’s motion is facially insufficient, therefore, we affirm the trial court’s denial of the motion. See Saffold v. State, 850 So.2d 574 (Fla. 2d DCA 2003); Fla. R.Crim P. 3.850(b)(4). Our affirmance is without prejudice to any right Gray may have to file a facially sufficient motion within sixty days from the date of the issuance of the mandate in this case. See Burgess v. State, 862 So.2d 943 (Fla. 2d DCA 2004).

Affirmed.

WHATLEY and WALLACE, JJ., Concur.


text:
    Chase E. CUTTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3472.
    District Court of Appeal of Florida, First District.
    March 15, 2004.
    Chase E. Cutts, pro se, petitioner.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking belated appeal is denied on the merits.

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Tracy COLLIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0552.
    District Court of Appeal of Florida, First District.
    March 15, 2004.
    Tracy Collier, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee', for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Kenneth Edward LAWHON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1519.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2004.

      James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See, e.g., Glenn v. State, 861 So.2d 1289 (Fla. 5th DCA2004).

GRIFFIN, THOMPSON and PLEUS, JJ., concur.


text:
    Steven Lofton COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-58.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2004.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Novaton v. State, 634 So.2d 607 (Fla.1994).

PETERSON, THOMPSON and ORFINGER, JJ., concur.


text:
    William Roy HARGIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1855.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2004.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Mounce, 866 So.2d 132 (Fla. 5th DCA 2004).

SAWAYA, C.J., SHARP, W., and TORPY, JJ., concur.


text:
    NOBILITY HOMES, INC., and Prestige Home Centers, Inc., Appellants, v. Wanda PRESTON, etc., et al., Appellees.
    No. 5D03-2488, 5D03-2489, 5D03-2508, 5D03-2509.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2004.
    Randy Fischer of Boehm, Brown, Fischer & Harwood, P.A., Ocala, for Appellant Nobility Homes, Inc.
    Collins Guyton of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellant Prestige Home Centers, Inc.
    James D. Pacitti of Morgan, Colling & Gilbert, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Seifert v. U.S. Home Corporation, et al, 750 So.2d 633 (Fla.1999). '

PETERSON, THOMPSON and ORFINGER, JJ., concur.


text:
    Jason GRIFFITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3516.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2004.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


author: ALTENBERND, Chief Judge.

text:
    Ralph E. CARR, Appellant, v. Matthew P. LAMMIE; Maddox Bonding, Inc.; Maddox Bail Bonds, Inc.; and Accredited Surety & Casualty Company, Inc., Appellees.
    No. 2D02-3606.
    District Court of Appeal of Florida, Second District.
    March 17, 2004.

      Gary R. Gossett, Jr., of Gossett Law Offices, P.A., Sebring, for Appellant.
    Daniel J. Gerber of Rumberger, Kirk & Caldwell, P.A., Orlando; and Michael R. Holt of Rumberger, Kirk & Caldwell, P.A., Miami, for Appellees.
   ALTENBERND, Chief Judge.

Ralph E. Carr appeals a summary final judgment determining that Matthew P. Lammie is entitled to receive funds on deposit in the registry of the court. These funds are the proceeds from the remission of a bail bond forfeiture. See § 903.28, Fla. Stat. (1999). There are no disputed genuine issues of material fact regarding Mr. Lammie’s entitlement to these funds. Accordingly we affirm the circuit court’s ruling.

This dispute centers around whether Mr. Carr’s sale of the assets of his bail bond business, Maddox Bonding, Inc., to Mr. Lammie included certain bond forfeiture remission proceeds. Before Mr. Carr sold the business, a $30,000 bond was issued and then estreated when the defendant failed to appear at a required court hearing. After the sale, the defendant was found and $28,500 of the proceeds from the bond forfeiture were remitted. At that time, Mr. Carr, Mr. Lammie, and Accredited Surety and Casualty, Inc. (Accredited), each sought the bond forfeiture remission proceeds.

As explained in a prior appeal of this matter, Carr v. Lammie, 816 So.2d 142 (Fla. 2d DCA 2002), the criminal division of the circuit court placed the disputed funds in the court registry pending the resolution of this action, a declaratory judgment action then pending in the civil division of the circuit court regarding who was entitled to the funds. In Carr, we reversed a partial summary judgment entered in this declaratory judgment action that awarded immediate possession of these remission proceeds to Accredited pursuant to section 903.28. 816 So.2d at 142. At that time, the record suggested that Accredited, although initially entitled to seek remission, could not legally retain the funds remitted because they had been reimbursed either by Mr. Carr or by Maddox Bonding. We remanded in the first appeal for the trial court to determine who among the several claimants was entitled to receive these remission proceeds based upon the contractual relationships among the claimants. Id. at 142-43.

On remand, Mr. Carr filed a motion for summary judgment and Mr. Lammie and Accredited filed a joint motion for summary judgment. Thus both parties asserted that there were no disputed genuine issues of material fact. The circuit court granted summary judgment in favor of Mr. Lammie, finding that Mr. Lammie was entitled to the bond forfeiture remission proceeds.

The undisputed facts before the circuit court establish that in the spring of 1999, Mr. Carr owned Maddox Bonding, Inc., a bail bond agency. See § 648.25(1), Fla. Stat. (1999). He entered into negotiations to sell this business to the agency’s employee, Mr. Lammie. Among the assets that Mr. Carr represented that he was selling to Mr. Lammie was the build-up fund with Accredited, which is described on the documents related to the sale as a money market account. See § 648.29, Fla. Stat. (1999). A statutory build-up fund may be posted by a bail bond agent or a bail bond agency. See § 648.29(1). In his deposition, Mr. Carr admitted that this build-up fund was an agency fund of Maddox Bonding.

On April 19, 1999, prior to the closing of the sale, a $30,000 bond issued by Accredited through Maddox Bonding was estreat-ed when a criminal defendant failed to appear in court. Accredited paid the $30,000 forfeiture to the court and sought reimbursement from Mr. Carr and Maddox Bonding. Most, if not all, of the buildup fund was used to cover $10,000 of the bond estreature. To satisfy the remaining balance, Mr. Carr, individually and as president of Maddox Bonding, signed a $20,000 promissory note payable to Accredited. The promissory note anticipated that it would be paid in full upon the sale of Maddox Bonding.

On July 16, 1999, Mr. Carr and Mr. Lammie closed on the sale of Maddox Bonding. Without objection by Mr. Carr, Mr. Lammie paid $20,000 of the initial purchase price directly to Accredited to satisfy the promissory note. Shortly after this sale, the missing defendant was recovered and $28,500 of the bail bond forfeiture proceeds were remitted. Mr. Carr, Mr. Lammie, and Accredited each made a claim for these proceeds.

The dispositive issue in this case is whether the contingent right to receive the remission proceeds from Accredited was an asset of Maddox Bonding and treated as such by Mr. Carr and Mr. Lammie in the sale of that business’s assets, or whether that contingent right was the personal asset of Mr. Carr and thus not included within the sale of the business assets. The circuit court concluded that the undisputed facts established that the remission proceeds were an asset of Maddox Bonding included in the sale of that business’s assets to Mr. Lammie. We agree.

The “contract for sale” and the “bill of sale” used to transfer the assets of Maddox Bonding from Mr. Carr to Mr. Lammie are not models of legal clarity. Mr. Carr created these documents, modeling them after outdated forms that had been used when he purchased the business years earlier. Any ambiguity in these documents must be construed against him. See Coastal Caisson Drill Co. v. Am. Cas. Co., 523 So.2d 791 (Fla. 2d DCA 1988).

The contract for the sale of the business specifically stated that it was a sale of the assets of Maddox Bonding. No assets were excluded from the sale in the contract documents. The contract made no specific reference to future bond forfeiture remissions, but it transferred all accounts receivable to Mr. Lammie and it contained a hold harmless agreement that made Mr. Lammie liable for the risk of any future estreature on a bond that had been issued through Mr. Carr. The contract further required that the seller “has paid or simultaneously with the closing will pay all accounts payable or other moneys due and owing” by the business. Thus, the agreement effectively transferred the assets and any contingent liabilities of Maddox Bonding to Mr. Lammie.

Further, the remission proceeds were an asset of Maddox Bonding. The remission proceeds were a refund of the funds paid to cover the $30,000 estreature. That es-treature was initially paid in part by the build-up fund and in part by the promissory note. In his deposition, Mr. Carr acknowledged that the build-up fund was an asset of Maddox Bonding. Indeed, his initial written disclosures to Mr. Lammie regarding the sale listed this money market fund as an asset of the business. In addition, the promissory note was an obligation of Maddox Bonding, although it was signed by Mr. Carr both individually and as president of the company. It was a debt of the corporation that had to be paid prior to the closing on the sale. Because the $30,000 estreature was initially paid by Maddox Bonding, the remission of those funds was the asset of Maddox Bonding. Those assets are now owned by Mr. Lam-mie.

After carefully reviewing the depositions and exhibits, we conclude that the circuit court correctly determined that no factual dispute exists and that, as a matter of law, the parties transferred the right to receive the remission proceeds from Maddox Bonding to Mr. Lammie. Accordingly, we affirm the trial court’s judgment.

Affirmed.

DAVIS, J., and THREADGILL, EDWARD F., SENIOR JUDGE, concur.

      . Maddox Bail Bonds, Inc., a party in these proceedings, is a corporation set up by Mr. Lammie to continue the business formerly operated as Maddox Bonding, Inc.

      . For example, in the contract the seller warrants that there are no creditors so that the parties will not need to comply “with the provisions of the Bulk Sales Law of the State of Florida (Chapter 676, Florida Statutes).” Chapter 676 was repealed by the legislature in 1993. Ch. 93-77, § 3, Laws of Fla.


author: SILBERMAN, Judge.

text:
    Franz Edward MITCHELL, Appellant/Cross-Appellee, v. Jeanne L. COLEMAN, Appellee/Cross-Appellant.
    No. 2D02-869.
    District Court of Appeal of Florida, Second District.
    March 17, 2004.

      Franz Edward Mitchell, pro se.
    Karol K. Williams, Tampa, for Appel-lee/Cross-Appellant.
   SILBERMAN, Judge.

Franz Edward Mitchell appeals a judgment imposing a charging lien in favor of his attorney, Jeanne L. Coleman, for attorney’s fees incurred in connection with his dissolution of marriage. Ms. Coleman cross-appeals and argues that the trial court should have included words of finality in the judgment so she could execute on the charging lien and that the trial court should have determined the amount of prejudgment interest due to her. We reverse the judgment, in part, because the scope of the charging lien is too broad, and we remand this matter for entry of an amended charging lien that is properly limited in scope and for a determination of prejudgment interest. We affirm without comment the other issues that were raised, including Mr. Mitchell’s challenge to the amount of attorney’s fees and costs that the trial court found was owed to Ms. Coleman.

“A charging lien is an attorney’s equitable right to have costs and .fees owed for legal services secured by the judgment or recovery in the lawsuit.” Newton v. Kiefer, 547 So.2d 727, 728 (Fla. 2d DCA 1989); see also Lochner v. Monaco, Cardillo & Keith, P.A., 551 So.2d 581, 583 (Fla. 2d DCA 1989). “It is not enough to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services.” Correa v. Christensen, 780 So.2d 220, 220 (Fla. 5th DCA 2001). A charging lien may issue in a dissolution action and attach to the proceeds that are awarded to the client as part of the equitable distribution of property. See Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A, 517 So.2d 88, 92 n. 5 (Fla. 3d DCA 1987) (citing Conroy v. Conroy, 392 So.2d 934 (Fla. 2d DCA 1980)).

Here, the judgment states that “[a] charging lien is hereby imposed against the Former Husband, FRANZ EDWARD MITCHELL, in favor of the Law Office of Jeanne L. Coleman in the amount of $49,751.77.” The judgment does not limit the lien to the proceeds that Ms. Coleman recovered on Mr. Mitchell’s behalf in the dissolution action.

Mr. Mitchell asserts that Ms. Coleman’s efforts did not produce a positive result and, therefore, that the trial court erred in granting a charging lien. Mr. Mitchell cites to several cases that discuss the imposition of charging liens and the proper scope of such liens. See Cole v. Kehoe, 710 So.2d 705, 706 (Fla. 4th DCA 1998) (concluding that the appealed order was too broad because it was not limited to the property that was involved in the dissolution action and because it purported to allow a lien on other property that the wife did not own at the time of suit and rendition of the attorney’s services); Yavitz v. Martinez, Charlip, Delgado & Befeler, 568 So.2d 103, 105 (Fla. 3d DCA 1990) (stating that if a charging lien is imposed, it is against the judgment proceeds and not against the wife’s personal assets).

Ms. Coleman responds that she met all of the required elements for the imposition of a■ charging lien. She acknowledges that a charging lien attaches only to the assets awarded to' Mr. Mitchell in the final judgment of dissolution, but she disputes Mr. Mitchell’s contention that her efforts did not produce a positive recovery on' his behalf.

We agree that the trial court did not err in concluding that Ms. Coleman is entitled to a charging lien. However, the wording of the charging lien judgment is overly broad because it does not limit the lien to property recovered by Mr. Mitchell as a result of Ms. Coleman’s efforts in the dissolution action. Therefore, we reverse the charging lien judgment, in part, and remand with directions that the trial court enter an amended judgment limiting the charging lien to the proceeds that Mr. Mitchell recovered as a result of Ms. Coleman’s services in the dissolution action.

In her cross-appeal, Ms. Coleman argues that the trial court erred by not including words of finality that would enable her to execute on the judgment. Because we are reversing the judgment due to its being overly broad, this issue is moot. However, we note the following for the guidance of the parties and the trial court on remand.

Once Ms. Coleman established her entitlement to a lien in the dissolution litigation, she was entitled to enforce it by a summary proceeding in that action although “such a proceeding is not the exclusive mechanism for enforcing a charging lien.” Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla.1986). In Edward C. Tietig, P.A. v. Southeast Regional Construction Corp., 617 So.2d 761, 763 (Fla. 4th DCA 1993), the Fourth District stated that once the trial court determines entitlement to and the amount of a charging lien, an enforceable judgment should be entered in favor of the attorney and against the client.

Here, it is unclear whether the trial court intended to make the charging lien a final, enforceable judgment, and the charging lien judgment did not include traditional words of finality. See id. at 763 n. 3. Additionally, the trial court reserved jurisdiction to determine prejudgment interest and to enforce the charging lien. When the trial court entered judgment in Ms. Coleman’s favor, the direct appeal of the final judgment of dissolution was pending and Mr. Mitchell’s recovery was not final. Since that time, the direct appeal has been concluded with the dissolution judgment being reversed in part and remanded for further proceedings, including the equitable distribution of property. See Mitchell v. Mitchell, 841 So.2d 564, 571 (Fla. 2d DCA 2003). On remand, to the extent that a determination has been made concerning the division of the Mitchells’ property, Ms. Coleman is entitled to a final judgment on her charging lien that is enforceable against specific property recovered in the dissolution action through her efforts on behalf of Mr. Mitchell. See Tietig, 617 So.2d at 763.

Ms. Coleman also argues that the trial court erred by reserving jurisdiction to determine the amount of prejudgment interest rather than determining and awarding interest as part of the charging-lien judgment. Based on the record before us, we disagree. Ms. Coleman’s fee contract with Mr. Mitchell states that he was to pay each bill in full within fifteen days of each billing date and that interest would be added to any bill remaining unpaid on the last day of the month following the billed month. Ms. Coleman represented Mr. Mitchell between August 1999 and June 2001. A lengthy itemization of fees and costs is contained in the record, but it does not reflect individual billing dates or interest computations. The documents suggest that at least some of Ms. Coleman’s bills were paid in installments. Because it appears that the trial court did not have before it sufficient information to determine the amount of prejudgment interest, we cannot conclude that the trial court erred by reserving jurisdiction on this issue. On remand, Ms. Coleman may recover prejudgment interest as part of her charging lien, provided that adequate proof is provided to the trial court establishing the amount of such interest.

In summary, we affirm the findings and conclusions of the trial court, but we reverse the charging lien judgment, in part, because it is overly broad. We remand this matter for entry of an amended judgment reflecting that the charging lien attaches to and is enforceable against those proceeds of the dissolution action that Mr. Mitchell recovered through Ms. Coleman’s efforts. The charging lien shall include prejudgment interest to the extent that Ms. Coleman establishes the amount of such interest.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and VILLANTI, JJ., Concur.


author: WALLACE, Judge.

text:
    Robert Earl BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-833.
    District Court of Appeal of Florida, Second District.
    March 17, 2004.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Robert Earl Brooks appeals his conviction for aggravated battery with a deadly weapon. He contends that the trial court should have granted his motion for mistrial after the alleged victim, his former wife, testified that Brooks was “sent back to prison” following a prior incident of domestic violence during which she shot Brooks twice. We agree with Brooks that this error was not harmless and that the trial court abused its discretion in denying the motion for mistrial. Therefore, we reverse Brooks’ judgment and sentence, and we remand for a new trial.

The State charged Brooks with two counts of aggravated battery with a deadly weapon, to wit, a knife. The alleged victims were Rosa Brookins, Brooks’ former wife, and Aquawana Brooks, their sixteen-year-old daughter. The incident occurred at Rosa’s home where Brooks occasionally resided. Rosa testified that after she and Brooks had a disagreement, he took a steak knife from a kitchen drawer and stabbed her three times. Aquawana, who had been in another room when the incident began, came to her mother’s aid and stabbed Brooks with a steak fork. In a statement he made to police after the incident, Brooks contended that Rosa was the aggressor and that he had acted in self-defense. Brooks said that after Rosa initiated an attack on him with the knife, he struggled with her for possession of it. In the ensuing melee, Rosa and Aquawana were both cut. Brooks said that he also sustained a cut to his finger in the course of trying to wrest the knife from Rosa.

Brooks’ counsel cross-examined Rosa at length about a prior incident of domestic violence in which Rosa had shot Brooks twice. Defense counsel suggested that on the prior occasion, Rosa “got away with it.” On redirect, the prosecutor elicited a lengthy explanation of the prior incident from Rosa and why she believed she had shot Brooks in self-defense. During the prosecutor’s redirect examination of Rosa, the following exchange occurred:

Q. Did the police investigate this?
A. Yes. I was never arrested, never had a mug shot taken, never fingerprinted. I had to give a statement, and the police brought me back home.
Q. Okay. Did the defendant get charged in that case?
A. A few months later, he was sent back to prison.

Brooks’ counsel promptly objected and moved for a mistrial on account of Rosa’s nonresponsive answer about Brooks’ prior criminal history. Brooks’ counsel also explained to the trial court that the reason Brooks went back to prison was unrelated to the shooting incident. The prosecutor did not dispute defense counsel’s assertion that the reason for Brooks’ return to prison was unrelated to the prior incident of domestic violence. Instead, the prosecutor suggested that a curative instruction was sufficient to cause the jury to disregard Rosa’s statement.

The trial court initially reserved ruling on the motion for mistrial but did give the jury a cautionary instruction directing them to ignore Rosa’s nonresponsive answer. Brooks’ counsel renewed her motion for mistrial later in the trial, and the trial court ultimately denied it.

Brooks testified at trial in support of the defense theory that Rosa was the aggressor in the incident and that he had acted only in self-defense. He was able to explain to the jury that he was not charged with any crime as a result of the prior incident of domestic violence with Rosa. Nevertheless, Brooks admitted that he had two prior felony convictions.

The jury acquitted Brooks of committing an aggravated battery on Aquawana but found him guilty as charged of committing an aggravated battery on Rosa. Brooks filed a motion for new trial that the trial court denied. The trial court sentenced Brooks to fifteen years in prison as a prison releasee reoffender.

Rosa’s nonresponsive answer to the prosecutor’s question implied that Brooks had been sent to prison twice' — • once in connection with a prior incident of domestic violence in which she had shot him twice and had not been arrested. This testimony was improper and unfairly prejudicial to Brooks. “Evidence of any crime committed by a defendant, other than the crime for which the defendant is on trial, is inadmissible in a criminal case when its sole relevance is to attack the character of the defendant.” Cornatezer v. State, 736 So.2d 1217, 1218 (Fla. 5th DCA 1999); see also Dawkins v. State, 605 So.2d 1329, 1330 (Fla. 2d DCA 1992); Garvey v. State, 754 So.2d 130 (Fla. 3d DCA 2000); J.P. v. State, 546 So.2d 753 (Fla. 3d DCA 1989); Finklea v. State, 471 So.2d 596, 597 (Fla. 1st DCA 1985). Thus the question presented to us is whether Rosa’s nonresponsive remark — considered in the light of the trial court’s cautionary instruction to the jury — can be deemed harmless error.

Reviewed for abuse of discretion, a motion for mistrial should be granted only when the error is so prejudicial as to vitiate the entire trial. Overton v. State, 801 So.2d 877, 897 (Fla.2001). In Henderson v. State, 789 So.2d 1016, 1018 (Fla. 2d DCA 2000), we said: “The improper admission of evidence concerning a defendant’s prior criminal history is frequently too prejudicial for the jury to disregard, regardless of any curative instruction given by the trial court. When any curative instruction would be insufficient, the trial court should grant a mistrial.” (Citation omitted.) See also Finklea, 471 So.2d at 597; Vazquez v. State, 405 So.2d 177, 179 (Fla. 3d DCA 1981), approved in part, quashed in part, 419 So.2d 1088 (Fla.1982).

In this case, after defense counsel objected and moved for a mistrial, the trial court gave the following curative instruction to the jury: “Members of the jury, that last statement from the witness was nonresponsive to any question, also beyond this witness’s knowledge[;] therefore, that answer is stricken from the record. You must ignore it.” After a thorough review of the record, we conclude that the State has not met its burden of showing beyond a reasonable doubt that Rosa’s statement concerning Brooks’ prior criminal history did not contribute to the jury’s verdict of guilt. See State v. Diguilio, 491 So.2d 1129, 1135 (Fla.1986). Three reasons support our conclusion.

First, under the circumstances of this case, we think the curative instruction was likely to be ineffective. The declaration that Rosa’s nonresponsive statement was “beyond this witness’s knowledge” could not ameliorate the statement’s prejudicial effect. Whether Brooks went to prison following the prior incident of domestic violence was a fact concerning which the jury could reasonably assume that Rosa had personal knowledge. Rosa made a statement of fact; she had not offered speculation about a matter unknown to her. In view of the violent nature of both incidents of domestic violence and Brooks’ defense of self-defense to the aggravated battery charge arising from the more recent of the two events, the jury had reason to believe that evidence of Brooks’ prior criminal behavior was reliable and relevant to the crime charged. Thus improper evidence of Brooks’ prior criminal behavior could not be cured by a cautionary instruction to the jury. See Henderson, 789 So.2d at 1018-19.

Second, evidence of Brooks’ prior criminal behavior (incorrectly linked to the pri- or incident of domestic violence) inevitably cast doubt upon Brooks’ theory of self-defense. Rosa and Brooks presented opposing and uncorroborated accounts concerning who was the aggressor in the stabbing incident. Brooks gave the police a taped interview in which he said that Rosa attacked him with the steak knife and that she was stabbed while he was defending himself. In Dawkins, 605 So.2d 1329, the defendant, who was charged with attempted first-degree murder, explained that he shot the victim in self-defense. During cross-examination of the defendant and in closing argument, the prosecutor improperly suggested that the defendant committed the crime of unlawful possession of a firearm by a convicted felon, a collateral uncharged crime. The trial court denied defense counsel’s motions for mistrial. We said that merely asking the question about the uncharged crime placed the defendant’s character in issue “which was especially prejudicial because of his self-defense argument.” Id. at 1330. Because the facts on the issue of self-defense were disputed and the jury would be less likely to believe the defendant was defending himself if the jury knew he had committed other unlawful acts, we held that the error could not be deemed harmless. Id. Similarly, the error in this case cannot be deemed harmless because the jurors would be less likely to believe that Brooks was defending himself if they believed that he had committed acts in a prior incident of domestic violence that had caused him to be sent back to prison.

Finally, Rosa’s nonresponsive statement cannot be considered harmless because it appears to have had a substantial negative impact on the defense trial strategy. During opening statements, the prosecutor announced that the State would play Brooks’ tape-recorded police interview for the jury. In that interview, Brooks had given his version of the facts supporting a theory of self-defense. Defense counsel’s opening statement indicates an intention to rely on the tape-recorded statement in support of the self-defense theory — not in-court testimony from Brooks. By relying on both the tape-recorded interview and cross-examination of Rosa about her prior shooting of Brooks, defense counsel could have presented a colorable case for self-defense without having Brooks testify. This strategy would have avoided exposing Brooks to impeachment concerning his two prior felony convictions.

The denial of the motion for mistrial necessitated a substantial shift in the defense strategy. Defense counsel would arguably have been remiss in the discharge of her professional responsibility if she had not put Brooks on the stand to refute the unmistakable — but inaccurate — implication in Rosa’s statement that Brooks “was sent back to prison” because of his criminal behavior in connection with the prior incident of domestic violence. Nevertheless, having Brooks testify exposed him to impeachment concerning his two prior felony convictions. Absent Rosa’s nonresponsive statement, Brooks would likely have chosen not to testify in his own behalf. Under the circumstances of this case, the negative impact of the evidence concerning Brooks’ prior criminal behavior on the defense trial strategy militates against a finding of harmless error.

For these reasons, the trial court erred in failing to grant the motion for mistrial. The judgment and sentence imposed upon Brooks must be reversed and the case remanded for a new trial.

Reversed and remanded for a new trial.

CASANUEVA and CANADY, JJ., concur.


text:
    Shawn C. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3624.
    District Court of Appeal of Florida, Second District.
    March 17, 2004.
   PER CURIAM.

Shawn C. Williams challenges the order of the trial court summarily denying his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s order. Williams failed to allege that his jail credit claim could be determined from the face of the record, and he therefore failed to present a facially sufficient rule 3.800(a) claim. See Williams v. State, 848 So.2d 389, 389 (Fla. 2d DCA 2003). We note that Williams’ motion was directed to trial court case numbers 93-2285 and 93-2286, whereas the body of the trial court’s order denied jail credit on trial court case numbers 00-383 and 00-884. Our affirmance is without prejudice to any right Williams might have to file a facially sufficient jail credit claim pursuant to Florida Rule of Criminal Procedure 3.800(a) or a timely facially sufficient claim pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.

WHATLEY, NORTHCUTT, and STRINGER, JJ., Concur.


author: TORPY, J.

text:
    Travis Terell DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3585.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2004.

      James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR ENLARGEMENT OF TIME TO CORRECT SENTENCING ERROR

TORPY, J.

Appellant seeks an enlargement of time for the trial court to consider and rule on a Motion to Correct Sentence made pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The issue that we must confront is whether extensions of the 60-day time limit are authorized for motions of this nature. The State urges that we grant the motion but acknowledges that to do so would contravene dicta from our decision in Kimbrough v. State, 766 So.2d 1255 (Fla. 5th DCA 2000). Both parties ask that we follow the second district’s decision in McGuire v. State, 779 So.2d 571 (Fla. 2d DCA 2001), which rejected our dicta in Kimbrough. For the reasons expressed herein and in Kimbrough, we deny the motion because we do not believe that extensions of time are authorized. We certify conflict with McGuire.

On January 5, 2004, Appellant timely filed a Motion to Correct Sentencing Error, pursuant to rule 3.800(b)(2). The trial court scheduled a hearing on the motion for February 25, 2004, but the hearing was not held because Appellant had not been transported to Seminole County from the Department of Corrections. The trial court rescheduled the hearing to March 24, 2004, in order to secure Appellant’s presence. However, the new hearing date is outside the 60-day window within which the trial court must rule on the motion. Implicit in the trial court’s order, therefore, was an extension of time for the court to hear and rule on the motion. Nevertheless, out of caution,- Appellant filed the instant motion with this court seeking an extension of the 60-day time limit.

Florida Rule of Criminal Procedure 3.800(b)(2), adopted in 2000, provides a procedure by which sentencing errors may be corrected by the trial court during the initial stage of an appeal without the need for the appellate court to relinquish jurisdiction. The rule provides that, within 60 days of the filing of a rule 3.800(b)(2) motion, “the trial court shall file an order ruling on the motion.” Otherwise, the motion is “considered denied.”

In Kimbrough, we recognized that the time limit in the rule is “self-executing and there is no authority for either the trial court or the appellate court to extend that time period.” Kimbrough, 766 So.2d at 1255. In Kimbrough, however, the request for extension of time came after the 60-day period had expired and after we had issued a rule to show cause. Here, we are faced with a pre-expiration request for extension and whether under these circumstances an extension of this deadline is authorized by the Rules of Criminal Procedure.

On similar facts our sister court in McGuire held that an extension is authorized by application of the general rule of extensions embodied in Florida Rule of Criminal Procedure 3.050. While the McGuire court agreed with this court’s conclusion that a trial court cannot extend the deadline after the 60-day period of rule 3.800(b)(2) has passed, it concluded that the trial court could grant an extension under rule 3.050 if the request was made within the- 60-day period. McGuire, 779 So.2d at 573. The fourth district has aligned itself with McGuire. See Moses v. State, 844 So.2d 686 (Fla. 4th DCA 2003). Because we disagree that rule 3.050 applies, we reach a contrary conclusion.

Our analysis of this issue begins with a review of the recent history of rule 3.800(b). In 1996, rule 3.800(b) was revised to provide a mechanism for the correction of sentencing error by the trial judge prior to the filing of the notice of appeal. See In re: Amendments to the Florida Ride of Criminal Procedure, 675 So.2d 1374 (Fla.1996). The principal purpose for this rule revision was to give defendants an opportunity to preserve sentencing issues for appellate review. Id. The 1996 version of the rule required that the motion be filed within 10 days after sentence was imposed, but before a notice of appeal was filed. Once filed, the trial judge was required to rule on the motion no later than 60 days after sentence had been imposed. The timely fifing of a rule 3.800(b) motion delayed “rendition” of the final order for purposes of commencement of an appeal.

In the 2000 amendment to rule 3.800(b), the prior version of rule 3.800(b) was renumbered as 3.800(b)(1), with some revision. In addition, the court added subsection (b)(2), which provides a procedure by which such motions can be heard by the trial judge even after the jurisdiction of the appellate court has been invoked. Both of these subsections continue to embody the court’s sentiment for expediency by requiring that the motions be filed and disposed of within a relatively short period. The court’s comment to the revision contemplates that, even when evidence is needed to resolve the issues raised in the motion, the 60-day rule still applies:

When a trial court determines that an evidentiary hearing is necessary to resolve a factual issue, it is possible that the court will need to utilize the entire 60-day period authorized by this rule. However, trial courts and counsel are strongly encouraged to cooperate to resolve these motions as expeditiously as possible because they delay the appellate process.

Court Commentary to 2000 Amendments to Rule 3.800 (emphasis supplied). To ensure such prompt disposition, the rule employs self-executing language providing for the denial of any motion not ruled upon within the 60-day limit and further makes no provision for the extension of this period.

Although the correction of error in a prompt fashion might be accomplished through application to the trial judge under the rule, and an unnecessary appeal thereby obviated, the rule acknowledges that the converse might also occur-that the trial judge might not recognize the error. Because a principal objective of the rule is to allow a defendant an opportunity to preserve an otherwise unpreserved error, this goal is accomplished whether the trial judge grants the relief or not. But when the trial judge for whatever reason fails to rule within 60 days and ultimately denies the motion, the defendant’s right to have the matter promptly reviewed through the appellate process is delayed, resulting in prejudice, especially to an incarcerated defendant. The rule, therefore, strikes a balance by limiting the delay in the appellate process to 60 days while at the same time accomplishing its primary objective.

As to the application of rule 3.050 to further “delay the appellate process,” we think that its general provisions conflict with the specific, self-effectuating provisions of rule 3.800(b), the intent of which is made clear by both the language of the rule and court commentary. Under these circumstances, the specific provisions of rule 3.800(b) should control over the general provisions of rule 3.050. Furthermore, because rule 3.050 also authorizes after-the-fact extensions of time, the literal application of this rule might lead to the absurd result of extending a deadline to rule on a motion that has already been automatically denied. Thus, to apply rule 3.050 and avoid this absurdity requires a contorted interpretation of rule 3.050 that is tantamount to rewriting the rule for this special circumstance. ■ Finally, rule 3.050, by its express terms, does not authorize extensions of time for “taking an appeal.” Extending the 60-day limit, at least in the case of a rule 3.800(b)(1) motion, would delay “rendition” of the final judgment and thereby delay the time within which an appeal must be “taken,” contrary to the language of this rule. Moreover, in the case of a rule 3.800(b)(2) motion, to extend the 60-day limit and thereby delay the prosecution of the appeal seems contrary to the spirit, if not the letter, of rule 3.050.

In conclusion, the 60-day time limit embodied in rule 3.800(b) does not contemplate extensions. Moreover, we believe it strikes an appropriate balance of allowing the defendant to preserve sentencing errors, and allowing the litigants and the trial court the opportunity to briefly revisit sentencing errors without an undue delay in the appellate process. To allow indefinite extensions based on the nebulous “good cause” standard will result in untold complications to what is now a simple and streamlined process. But even if we are wrong in our conclusion that the 60-day limit makes good sense, the remedy lies with an amendment to the applicable rules, rather than a revision under the guise of interpretation.

MOTION DENIED; CONFLICT CERTIFIED.

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

      . For example, because the trial court would apparently have concurrent jurisdiction to grant such extensions (see McGuire, 779 So.2d at 572 n. 1), which may be done with or without notice under rule 3.050, extensions might become commonplace in overburdened trial courts with overburdened public trial lawyers. Because a trial court’s determination of “good cause” would be reviewed under an abuse of discretion standard, district courts would have little control over backlogged, pending appellate cases. Moreover, rule 3.050 provides no limit on the number or duration of any such extensions, further contributing to the potential for abuse and resulting delays. Finally, if rule 3.050 were applicable, the State may also seek an extension, thereby delaying a defendant’s right to prompt appellate review of not only sentencing issues, but all other issues included in the direct appeal.

      . We note that our decision today has no effect on extensions of time as they relate to Florida Rule of Criminal Procedure 3.800(c). Under that rule, the 60-day limit is not self-effectuating and extensions of time do not delay the appellate process. See Timmer v. State, 840 So.2d 1160 (Fla. 5th DCA 2003). See also Abreu v. State, 660 So.2d 703 (Fla.1995) (allowing extensions under precursor to 3.800(c)).


text:
    STATE of Florida, Appellant, v. Thomas A. EATON, Appellee.
    No. 2D03-2054.
    District Court of Appeal of Florida, Second District.
    March 19, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellee.
   VILLANTI, Judge.

The State appeals the trial court’s order excluding evidence of blood alcohol test results based on its determination that the State had willfully violated the rules of discovery. We treat the State’s appeal as a petition for a writ of certiorari and grant the petition because the trial court departed from the essential requirements of the law by excluding the evidence without considering other, less severe sanctions.

On June 3, 2002, the State charged Eaton with vehicular homicide, DUI manslaughter, driving under the influence with property damage and/or personal injury, and violation of a restricted driver’s license after the car he was driving collided with another vehicle, killing Eaton’s passenger. Eaton was also severely injured and hospitalized, and the hospital drew and tested his blood for medical purposes. The results of this test are the subject of this petition.

Eaton filed a notice of discovery pursuant to Florida Rule of Criminal Procedure 3.220 on July 19, 2002. The State filed its discovery exhibit in response on September 4, 2002. The discovery exhibit contained no reference to test results of blood drawn for medical purposes, although it did reference Eaton’s hospital records and the traffic homicide investigation report. To follow up, defense counsel twice wrote to the assistant state attorney, asking for any documentation with regard to “medical blood” the State intended to use at trial. The assistant state attorney replied in a letter dated October 8, 2002, “As to the blood work, you have all the documentation in my file.” The record does not indicate that the assistant state attorney was attempting to mislead defense counsel with this answer.

Eaton was out of custody and had previously waived speedy trial. Also, he had once requested, and been granted, a continuance because he needed surgery for the injuries he had sustained in the car crash. The jury trial was set for April 28, 2003. On March 24, 2003, Eaton moved to suppress the “medical blood” test results on two grounds: first, because the State had failed to provide any formal notice or documentation of the blood alcohol test results despite Eaton’s notice of discovery; and second, because the blood alcohol test results had been obtained in violation of section 395.3025(4)(d), Florida Statutes (2002).

The trial court held a hearing on the motion on April 23, 2003, five days before the trial was to begin. It determined that the State had failed to provide Eaton with notice of its intent to use the blood alcohol test results in violation of rule 3.220(b). Although the State argued that the hospital records were available for inspection, the trial court explained, “He doesn’t have to go on a wild goose chase to figure out whose [sic] got what. There is [sic] a few simple things that you do in discovery. Tell him that you have scientific evidence, who the witness is, and that’s it.” The trial court determined the discovery violation was willful. As a result, it excluded the results from evidence.

Exclusion of evidence can be a permissible sanction when the trial court determines there has been a discovery violation. Fla. R.Crim. P. 3.220(h). When the trial court learns of a possible discovery violation, it must conduct a hearing pursuant to Richardson v. State, 246 So.2d 771, 775 (Fla.1971). State v. Evans, 770 So.2d 1174 (Fla.2000). The purpose of a Richardson hearing is to determine “whether the violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party’s trial preparation.” Id. at 1183; accord Sims v. State, 681 So.2d 1112, 1114 (Fla.1996); Hayden v. State, 760 So.2d 1031, 1033 (Fla. 2d DCA 2000). After considering these factors and finding a Richardson violation, the trial court has discretion to choose an appropriate remedy or sanction. Hayden, 760 So.2d at 1033.

The extreme sanction of excluding evidence, however, should be used only as a last resort. Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998); State v. Schivartz, 605 So.2d 1000 (Fla. 2d DCA 1992); Wilkerson v. State, 461 So.2d 1376, 1379 (Fla. 1st DCA 1985). “Relevant evidence should not be excluded from the jury unless no other remedy suffices, and it is incumbent upon the trial court to conduct an adequate inquiry to determine whether other reasonable alternatives can be employed to overcome or mitigate any possible prejudice.” Wilkerson, 461 So.2d at 1379 (citing Austin v. State, 461 So.2d 1380 (Fla. 1st DCA 1984)).

A motion to suppress hearing generally is not used in lieu of a Richardson hearing because prejudice to the aggrieved party, one of the factors the trial court must consider, is exceedingly difficult to prove on a pretrial motion such as a motion to suppress. Here, the trial court used the motion to suppress hearing to consider the Richardson factors and determined that the discovery violation was willful. However, the order granting the motion to suppress does not indicate that the trial court found Eaton was prejudiced by the discovery violation. Although prejudice may have arisen had the evidence been introduced midtrial, any prejudice caused by the State’s failure could have been easily remedied by simply furnishing Eaton with the results and continuing the trial, if necessary.

Moreover, the trial court departed from the essential requirements of the law when it simply suppressed the evidence without considering other, less drastic sanctions such as ordering the State to provide the test results and continuing the trial. See Schwartz, 605 So.2d at 1001. A continuance would not have prejudiced Eaton because he was out of custody, had waived speedy trial, and had once received a continuance.

We therefore grant the petition for writ of certiorari and quash the order suppressing the blood alcohol test results on this ground. We do so without prejudice to Eaton to advance other arguments in favor of his motion to suppress. If the evidence is not suppressed, the trial court may consider alternative sanctions pursuant to rule 3.220(n).

Petition granted; order quashed; and cause remanded.

STRINGER and KELLY, JJ., concur.

      . Evidently, there was a second blood draw taken at the request of law enforcement pursuant to section 316.1933, Florida Statutes (2002). Because the results of this blood draw showed Eaton's blood alcohol level to be within the legal limit for driving, the State wanted the test results of the blood drawn for medical purposes for use at trial.

      . Section 395.3025(4)(d), Florida Statutes (2002), provides:
      (4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent to:

      (d) In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.

      .Because the trial court excluded the evidence on the discovery violation ground, it never reached the merits of Eaton’s second argument — that the blood alcohol test results had been obtained in violation of section 395.3025(4)(d).


text:
    Kenneth James KENDRICK, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1639.
    District Court of Appeal of Florida, Second District.
    March 19, 2004.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., .Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Kenneth James Kendrick appeals from his resentencing for attempted sexual battery with a deadly weapon. Kendrick challenges his designation as a sexual predator, claiming that he did not qualify for the designation. Kendrick also challenges the constitutionality of the sexual predator statute on due process grounds, relying on Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003). Kendrick acknowledges that Espindola conflicts with this court’s decision in Milks v. State, 848 So.2d 1167 (Fla. 2d DCA), review granted, 859 So.2d 514 (Fla.2003).

Neither of Kendrick’s arguments supports reversal. First, Kendrick qualifies for the sexual predator designation under section 775.21(4)(a)(l)(a), Florida Statutes (2003), because his offense is an attempt of a life felony under chapter 794, Florida Statutes. See § 794.011(3), Fla. Stat. (1993). Second, we reject Kendrick’s due process challenge based on our decision in Milks and certify conflict with Espindola.

Affirmed; conflict certified.

FULMER and STRINGER, JJ„ concur.


text:
    Tony L. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5555.
    District Court of Appeal of Florida, Second District.
    March 19, 2004.

      Tony L. Wilson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Tony L. Wilson appeals the summary denial of his motion for postconviction relief. We affirm in part, reverse in part, and remand for further proceedings.

In 1985, after entering no contest pleas, Wilson was convicted of burglary of a conveyance, escape, and resisting arrest without violence. Fifteen years later, he filed his motion for postconviction relief and an addendum to the motion. In the original motion, Wilson claimed that trial counsel failed to advise him that his plea could result in the enhancement of sentences that he might receive for future crimes. We affirm the trial court’s conclusions that the claim was timely under Wood v. State, 750 So.2d 592 (Fla.1999), but that it was facially insufficient. The trial court correctly observed that trial counsel is not required to advise a defendant of the collateral consequences of a plea, including the potential enhancement of sentences for future crimes. See Major v. State, 814 So.2d 424, 431 (Fla.2002); Stansel v. State, 825 So.2d 1007, 1009 (Fla. 2d DCA 2002). Thus, trial counsel’s alleged failure to advise Wilson of the potential sentence-enhancing effect of his plea does not constitute ineffective assistance or render Wilson’s plea involuntary as a matter of law. See Bethune v. State, 774 So.2d 4 (Fla. 2d DCA 2000).

In his addendum, Wilson alleged the ineffective assistance of trial counsel based on counsel’s failure to advise Wilson of a potential intoxication defense and his failure to investigate, locate, or subpoena witnesses who would have established that Wilson was intoxicated prior to and during his commission of the crimes. The State responded that the claims were not timely under Wood and that Wilson failed to explain any reason for the delay in bringing the claims. In its appellate brief, the State also argued that the doctrine of lach-es would bar the claims.

Although the trial court’s order denies postconviction relief, it is silent as to the claims raised in Wilson’s addendum. The record does not otherwise indicate that the trial court ruled on the timeliness or the merits of the claims presented in the addendum or that the trial court considered the applicability of the doctrine of laches.

Accordingly, we reverse the trial court’s order to the extent that it disposes of the claims raised in the addendum to Wilson’s motion and remand for the trial court to address those claims. If the trial court determines that summary denial is proper, it must set forth its rationale or attach those portions of the record that refute the claims. See Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993); Hoffman v. State, 571 So.2d 449, 450 (Fla.1990). To the extent that the doctrine of laches may bar relief, we note that “Application of the doctrine often involves factual issues that are not properly resolved without an evidentiary hearing.” Love v. State, 814 So.2d 475, 478 (Fla. 4th DCA 2002); see also Williams v. State, 828 So.2d 443 (Fla. 2d DCA 2002).

Affirmed in part, reversed in part, and remanded.

FULMER and STRINGER, JJ., concur.


text:
    SPRING LAKE IMPROVEMENT DISTRICT, Appellant, v. Sandra TYRRELL; Larry Ross; Boniface Deblasio; William D. Soman; GTL Investments, L.P., on behalf of themselves and all others similarly situated; and Tax Collector of Highlands County, Florida, Appellees.
    No. 2D03-2198.
    District Court of Appeal of Florida, Second District.
    March 19, 2004.

      Donald E. Hemke of Carlton Fields, P.A., Tampa; and William J. Nielander, Lake Placid, for Appellant.
    Robin Gibson and Kevin A. Ashley of Gibson, Valenti & Ashley, Lake Wales; and John K. McClure of John K. McClure, P.A., Sebring, for Appellees.
   STRINGER, Judge.

Spring Lake Improvement District (“Spring Lake”) seeks review of the trial court’s orders (1) requiring Spring Lake to refund $384,786.06 in maintenance taxes and $76,258.62 in postjudgment interest to Sandra Tyrrell, Larry Ross, Boniface De-Blasio, William D. Soman, and GTL Investments, L.P. (“the Landowners”), and (2) awarding the Landowners $97,671.62 in costs against Spring Lake. We reverse.

The trial court entered the orders on appeal on remand from our opinion in Spring Lake Improvement District v. Tyrrell, 814 So.2d 1077 (Fla. 2d DCA), review denied, 835 So.2d 271 (Fla.2002) (“Spring Lake I”). In Spring Lake I, this court reversed a final judgment ordering Spring Lake to refund $1,492,199.36 in maintenance and capital taxes and $1,213,435.61 in prejudgment interest on the refunds. This court held that (1) the Landowners could not recover any capital taxes; (2) the Landowners could not recover any prejudgment interest; and (3) the statute of limitations and laches limited the amount the Landowners could recover in maintenance taxes. Id. at 1080. The facts giving rise to the Landowners’ suit are set forth more fully in Spring Lake I.

On remand from Spring Lake I, the trial court awarded the Landowners $384,786.06 in maintenance taxes plus postjudgment interest. Even though this court held that the Landowners were entitled to only those maintenance taxes assessed and paid since January 23, 1994, the trial court included maintenance taxes for 1990, 1991, 1992, and 1993 in its award. The court also assessed $97,671.62 in trial costs against Spring Lake.

On appeal, Spring Lake argues that the trial court erroneously included the maintenance taxes from 1990-1993 in its award based on this court’s mandate. Spring Lake also argues that the trial court abused its discretion in assessing trial costs against Spring Lake because it was the prevailing party below. We find merit in both arguments and reverse.

In Spring Lake I, this court held: Thus, because the affected landowners waited so long to seek relief, we conclude that the statute of limitations and the doctrine of laches bar them from recovering those taxes assessed for maintenance beyond the four-year period contained in section 95.11(3)(p), Florida Statutes (1997). Specifically, no maintenance tax paid prior to January 23, 1994, may be refunded. We affirm that part of the judgment ordering refunds of taxes paid for periods since that date.

814 So.2d at 1080 (citations omitted). The court later summarized its holding, stating, “[W]e affirm that part of the final judgment awarding a refund of the maintenance taxes paid for the four years prior to the filing date of this suit.” Id. at 1081.

Instead of awarding refunds for maintenance taxes assessed and paid after January 23, 1994, the trial court awarded refunds for maintenance taxes paid after that date, even though they were assessed earlier. While such a holding could be parsed from single sentences in Spring Lake I, the context of the entire opinion makes it clear that the court intended to bar the Landowners from receiving refunds for taxes assessed and paid for the time period prior to January 23, 1994. Thus, we reverse and remand with directions for the trial court to reduce the award by the amounts paid for 1990, 1991, 1992, and 1993, plus the corresponding postjudgment interest.

On remand, the trial court also assessed trial costs against Spring Lake. Trial costs in this case are governed by section 57.041(1), Florida Statutes (2000), which provides that “[t]he party recovering judgment shall recover all his or her legal costs.” Costs under this section are governed by the “prevailing party” standard as articulated in Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992). See J. Sourini Painting, Inc. v. Johnson Paints, Inc., 809 So.2d 95, 98 (Fla. 2d DCA 2002); Lerner v. Regency Homes, Inc., 745 So.2d 552, 553 (Fla. 4th DCA 1999); Mulato v. Mulato, 734 So.2d 477, 478-79 (Fla. 4th DCA 1999) (applying the Moritz “prevailing party” test to determine whether a party is entitled to trial costs). The “prevailing party” is the party that prevails on the “significant issues in the litigation.” Moritz, 604 So.2d at 810. The trial court’s determination of which party is the “prevailing party” is reviewed for an abuse of discretion. Id.

The underlying action in this case was an action seeking refunds of capital and maintenance taxes and prejudgment interest from the date of purchase in 1986. Spring Lake prevailed on its affirmative defenses that the statute of limitations and laches limited the Landowners’ recovery of maintenance taxes, that the Landowners were barred from recovering capital taxes, and that the Landowners were.precluded from recovering prejudgment interest. The Landowners ultimately will recover refunds of maintenance taxes assessed and paid from January 23, 1994. However, due to the success of Spring Lake’s affirmative defenses, the Landowners will not recover refunds for maintenance taxes assessed between 1986 and January 23,1994. They will likewise not recover any capital taxes or prejudgment interest. Thus, Spring Lake prevailed on the significant issues in this litigation and is the prevailing party for purposes of section 57.041(1). As noted by Spring Lake, the fact that the Landowners recovered something does not require the award of costs to them. See Prosperi v.Code, Inc., 626 So.2d 1360, 1363 (Fla.1993) (“The fact that the claimant obtains a net judgment is a significant factor but it need not always control the determination of who should be considered the prevailing party.”). Accordingly, we reverse the award of $97,671.62 in trial costs to the Landowners. This holding renders moot the remainder of the issues raised by Spring Lake.

Reversed and remanded.

SALCINES and COVINGTON, JJ., Concur.


text:
    Lisa Marie FALCO, Individually, and as the parent and natural guardian of the Plaintiff, Devon Neely, a minor, Petitioner, v. Carina Jean COPELAND, Super-Lube, Inc., a Florida corporation, Bridgestone/Firestone North America Tire, L.L.C., successor to Bridgestone/Firestone, Inc., a Foreign corporation, Bridgestone Corporation, a Foreign corporation, North Shore Laboratories Corporation, a foreign corporation, William Lane and James Lane d/b/a Wiregrass Distributing Co., a Foreign business, and Safety Tire Seal Corporation, a foreign corporation, Respondents.
    No. 1D03-3999.
    District Court of Appeal of Florida, First District.
    March 23, 2004.

      Julie H. Kittky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for Petitioner.
    W. Cleveland Aeree, II, and Daniel A. Tressler, II, of Unger, Aeree, Weinstein, Marcus, Merrill, Kast & Metz, P.L., Orlando, for Respondents North Shore Laboratories Corporation and Safety Tire Seal Corporation.
   PER CURIAM.

The plaintiff has filed a petition for writ of certiorari in this court to review orders of the trial court requiring her parents to answer questions at their depositions, and requiring the disclosure of videotapes her parents viewed in preparation for their depositions. The record fails to show that the trial court departed from the essential requirements of law. Accordingly, the petition for writ of certiorari is denied.

This is the second discovery dispute that has made its way to this court in a certio-rari proceeding involving the same parties. In the first, we held that the trial court erred in requiring the production of videotapes made in preparation for trial, because these items are protected by the work product privilege and the defendants failed to show a need for disclosure. See Falco v. North Shore Laboratories, 866 So.2d 1255 (Fla. 1st DCA 2004). We remanded for an evidentiary hearing on the issue of the defendant’s need for disclosure. The facts leading up to the lawsuit are set out in the first Falco opinion and will not be restated here.

On the record provided in the appendices, we are unable to determine whether the trial court’s order requiring the plaintiffs parents to answer questions in their depositions will violate the attorney-client privilege. It is possible the parents will be able to assert the privilege on the theory that they are acting as agents for then-daughter, see Gerheiser v. Stephens, 712 So.2d 1252 (Fla. 4th DCA 1998), but, so far, the plaintiff has not established a sufficient factual basis for that argument. Because the parents declined to answer any questions about their relationship with the plaintiffs counsel, we are unable to say that they were acting as agents or intermediaries.

The plaintiffs parents will have to answer questions relating to the existence of the attorney-client privilege and then- right to assert the privilege. This information is not protected by the privilege in any event. Whether the plaintiffs parents have a right to decline to answer questions about the content of the communications they had with the plaintiffs lawyer is an issue that cannot be resolved yet.

As for the second issue, we are assuming that the videotapes the parents viewed in preparation for their depositions were the same as the ones that were in issue in the earlier case. The argument the defendants made here is that the work product privilege, if any, was waived when the videotapes were shown to the plaintiffs parents. This issue may become moot depending on the outcome of the hearing on remand from the earlier case. If the trial court determines that the defendants have made a proper showing of need that is sufficient to overcome the work product privilege, then it will make little difference whether the privilege is waived.

If the trial court rules that the defendants have failed to establish a need for disclosure of the videotapes despite the work product privilege, the court will then need to determine whether the privilege has been waived. The trial court did not give a reason for ordering disclosure of the videotapes, but it is fair to assume that the judge has not yet reached the issue of waiver. It would not have been necessary to reach that issue, given the trial court’s determination that the defendants had shown a need for disclosure. Depending on the outcome of the evidentiary hearing, the plaintiffs may still have an argument that the privilege continues to exist and that it has not been waived.

The petition for writ of certiorari in this case included a third point regarding the propriety of an order imposing attorney’s fees as a sanction. As the plaintiff now concedes, the issue is premature, as the trial court has determined only the issue of entitlement to fees and has not yet established the amount.

Certiorari denied.

BOOTH, PADOVANO and BROWNING, JJ, concur.

      . There are numerous discovery orders between the two cases, seven in this case alone. It is not clear why there are so many orders, or whether the videotapes referred to in the orders presently before the court are the same as those at issue in the previous petition.


text:
    WALTER T. EMBRY, INC. and 1260 Palm Beach Lakes, Inc., Appellants, v. LASALLE NATIONAL BANK, d/k/a Lasalle Bank National Association, as Trustee, and Florida 4C Properties, LLC, Appellees.
    No. 4D03-961.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    F. Malcolm Cunningham, Jr. and Amy L. Fischer of The Cunningham Law Firm, P.A., West Palm Beach, for Appellant Walter T. Embry, Inc.
    Michael K. Winston, John R. Hart and Henry S. Wulf of Carlton Fields, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

Appellant Walter T. Embry, Inc. appealed three orders in this case. As to the dismissal order, we affirm. As to the order striking defenses and the discovery order, this Court is without jurisdiction because the orders are non-final, non-ap-pealable orders. See Broward, County v. G.B.V. Int'l Ltd., 787 So.2d 838, 843 (Fla.2001)(reeognizing that a discovery order is a non-final, non-appealable order); Bernstein v. First Fed. Sav. & Loan Ass’n of Orlando, 384 So.2d 301, 302 (Fla. 5th DCA 1980)(concluding that an order striking affirmative defenses is not an appeal-able order under Florida Rule of Appellate Procedure 9.130).

AFFIRMED.

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


text:
    Daniel ACOSTA, Appellant, v. CARNIVAL CRUISE LINES INC., and Florida Unemployment Appeals Lower Commission, et al., Appellees.
    No. 3D03-1420.
    District Court of Appeal of Florida, Third District.
    March 24, 2004.
    Daniel Acosta, for appellant.
    John D. Maher, for Unemployment Appeals Commission.
    Before SCHWARTZ, C.J., GERSTEN, and GREEN, JJ.
   PER CURIAM.

Affirmed. See Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002).


text:
    Rico A. SMITH, etc., Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1148.
    District Court of Appeal of Florida, Third District.
    March 24, 2004.
    Clayton R. Kaeiser, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Brannon v. State, 850 So.2d 452 (Fla.2003); cf. Moore v. State, 859 So.2d 613 (Fla. 1st DCA 2003).


text:
    Breon Lavin BRABOY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2160.
    District Court of Appeal of Florida, Third District.
    March 24, 2004.
    Bennett J. Brummer, Public Defender and Carlos Gonzalez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Annette M. Lizardo, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and GREEN, JJ.
   PER CURIAM.

In the absence of a showing in the record by the defense that there was a probability that the cocaine seized by the police was tampered with, we find no merit to the appellant’s chain of custody challenge. See Creme v. State, 752 So.2d 1238, 1239 (Fla. 3d DCA 2000); Garcia v. State, 721 So.2d 1248 (Fla. 3d DCA 1998); Dodd v. State, 537 So.2d 626, 627 (Fla. 3d DCA 1988). Accordingly, we affirm the appellant’s conviction and sentence for possession of cocaine with the intent to sell or distribute.

Affirmed.


text:
    Gabriel GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1263.
    District Court of Appeal of Florida, Third District.
    March 24, 2004.
    Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, and Jennifer Moore, Assistant Attorney Generals, and Rebecca M. Plasencia, Certified Legal Intern, for appellee.
    Before GODERICH, GREEN, and WELLS, JJ.
   PER CURIAM.

We affirm the appellant’s conviction and sentence for armed robbery and kidnapping on grounds that the claimed trial error was not adequately preserved for appellate review. See Anderson v. State, 863 So.2d 169, 181 (Fla.2003); Hodges v. State, 28 Fla. L. Weekly S475, — So.2d —, 2003 WL 21402484 (Fla. June 19, 2003); Occhicone v. State, 570 So.2d 902, 906 (Fla.1990). Had the error been preserved, there is still no reversible error here because the claimed error was invited. See Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000); Morgan v. State, 520 So.2d 105, 106 (Fla. 2d DCA 1988).

Affirmed.


text:
    Phillip COHEN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 3D03-1247.
    District Court of Appeal of Florida, Third District.
    March 24, 2004.
    Vivian Z. Chavez; Jose Fons, Miami, for appellant.
    John D. Maher (Tallahassee), for appel-lee Florida Unemployment Appeals Commission.
    Before COPE, GODERICH, and GREEN, JJ.
   PER CURIAM.

The claimant, Phillip Cohen, appeals from a final order of the Unemployment Appeals Commission disqualifying him from receiving benefits because he was discharged for misconduct connected with work. After carefully reviewing the appeals referee’s findings of fact, we conclude that the conduct complained of was, at most, an isolated incident of poor judgment that did not rise to a level of “misconduct,” as the claimant was not acting willfully, wantonly, or in substantial disregard of the employer’s interest. See §§ 443.036(29), 443.101, Fla. Stat. (2001); McKnight v. Florida Unemployment Appeals Comm’n, 713 So.2d 1080 (Fla. 1st DCA 1998); Betancourt v. Sun Bank Miami, N.A., 672 Solid 37 (Fla. 3d DCA 1996); Bulkan v. Florida Unemployment Appeals Comm’n, 648 So.2d 846 (Fla. 4th DCA 1995); Smith v. Krugman-Kadi, 547 So.2d 677 (Fla. 1st DCA 1989), review denied, 558 So.2d 20 (Fla.1990); Erber v. Federal Express Corp., 409 So.2d 522 (Fla. 5th DCA 1982).

Accordingly, we reverse and remand for an award of unemployment benefits.


author: ORFINGER, J.

text:
    Keith L. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2134.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.

      James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Keith L. White appeals the sentences imposed after he was found to have violated the terms of his community control. White contends, among other things, that the trial judge erroneously concluded that his criminal punishment code scoresheet mandated a minimum prison sentence of 53 months, the sentence the court imposed. White’s scoresheet actually reflected a minimum sentence of 44.4 months, absent a basis for a downward departure.

The State concedes that had the issue been properly preserved for review, it would be appropriate to remand the matter to the trial court for reconsideration. See Mohn v. State, 723 So.2d 873, 873 (Fla. 2d DCA 1998) (‘While [defendant’s] sentence falls within the range of a correctly prepared scoresheet, we have held that this type of sentencing error is not harmless unless the record conclusively shows the court would have imposed the same sentence if it knew the correct score.”)

Although we agree with White’s position, we must affirm the sentences because the sentencing error was not brought to the trial court’s attention either at sentencing or in a rule 3.800(b) motion to correct sentence. As a result, the sentencing'issue may not be addressed on direct appeal. See Brannon v. State, 850 So.2d 452, 456 (Fla.2003).

Our affirmance is without prejudice for White to seek postconviction relief on the sentencing issue. On the remaining issue presented, we find no error.

AFFIRMED.

PLEUS and PALMER, JJ., concur.


text:
    OMNE STAFF LEASING SERVICES, INC., Petitioner, v. Timothy W. HOOD, Williams Marine and Construction Services, Inc., Respondents.
    No. 1D03-4502.
    District Court of Appeal of Florida, First District.
    March 26, 2004.
    Anna M. Jemjemian of Selis & Associates, P.A., Ormond Beach, for Petitioner.
    G.J. Rod Sullivan, Jr., of Sullivan & Company, Jacksonville, for Respondent Timothy W. Hood.
    James F. Moseley and P. Michael Leahy of Moseley, Warren, Prichard & Parrish, Jacksonville, for Respondent Williams Marine and Construction Services, Inc.
   PER CURIAM.

DENIED. See Belair v. Drew, 770 So.2d 1164 (Fla.2000); State Farm, Gen. Ins. Co. v. Grant, 641 So.2d 949 (Fla. 1st DCA 1994); and Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998).

WEBSTER, BENTON and PADOVANO, JJ., concur.


text:
    STATE of Florida, OFFICE OF The ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, Petitioners, v. WYNDHAM INTERNATIONAL, INC., and Patriot American Hospitality, Inc., Respondents.
    No. 1D04-0514.
    District Court of Appeal of Florida, First District.
    March 26, 2004.
    Charlie Crist, Attorney General, George S. Lemieux, Deputy Attorney General, and Tina Furlow, Assistant Attorney General, Tallahassee, for petitioners.
    No appearance for respondents.
   PER CURIAM.

Petitioner has failed to demonstrate that the trial court’s order results in a harm that cannot be adequately remedied on appeal from a final order. Accordingly, the petition for writ of certiorari is denied.

ALLEN, WEBSTER and BENTON, JJ., concur.


text:
    Sang NGUYEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3673.
    District Court of Appeal of Florida, First District.
    March 26, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General and Trisha Meggs Pate, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Pursuant to Florida Rule of Criminal Procedure 3.850, Appellant filed a postcon-viction motion which the trial court denied following an evidentiary hearing. Thereafter, Appellant filed a motion entitled “motion for rehearing and motion for extension of time for amended motion for rehearing.” The trial court denied the motion for rehearing as being without merit. However, the trial court denied Appellant’s motion for extension of time, concluding Florida Rule of Criminal Procedure 3.850(g) prevented the court from granting such a motion.

The trial court, for good cause shown, may extend the time. See Fla. R.Crim. P. 3.050; State v. Boyd, 846 So.2d 458 (Fla.2003). Because the trial court denied Appellant’s motion apparently on its mistaken belief that it was precluded from granting an extension of time, we REVERSE and REMAND. See Janson v. State, 775 So.2d 434 (Fla. 5th DCA 2001). On remand, the trial court has the discretion to grant or deny the motion for extension of time.

REVERSED and REMANDED.

BOOTH, POLSTON, and HAWKES, JJ., concur.