text:
    Robert GORDON, Appellant, v. STATE of Florida, Appellee.
    No. SC02-1212.
    Supreme Court of Florida.
    Dec. 18, 2003.

      Baron W. Given, Capital Collateral Registry, Bradenton, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Kimerly Nolen Hopkins, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

Robert Gordon, an inmate under sentence of death, appeals an order of the circuit court denying a motion for postcon-viction relief under Florida Rules of Criminal Procedure 3.850 and 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the denial of Gordon’s postconviction motion.

FACTUAL AND PROCEDURAL BACKGROUND

Gordon was found guilty of first-degree murder and sentenced to death for his role in the 1994 murder of Dr. Louis Davidson. The facts are set forth in detail in this Court’s opinion following Gordon’s direct appeal. See Gordon v. State, 704 So.2d 107 (Fla.1997). We affirmed Gordon’s conviction and sentence on direct appeal. Gordon subsequently filed a timely motion for postconviction relief, and the trial court granted a Huff hearing on August 9, 1999. Following the Huff hearing, the court summarily denied a number of Gordon’s claims, but directed an evidentiary hearing on four claims. Following the eviden-tiary hearing, the trial court denied Gordon’s motion for postconviction relief in its entirety.

CLAIMS SUMMARILY DENIED

Initially, Gordon challenges the trial court’s summary denial of claims which he argues warranted an evidentiary hearing. “To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or the record must conclusively refute them.” Occhicone v. State, 768 So.2d 1037, 1041 (Fla.2000) (citing Florida Rule of Criminal Procedure 3.850(d); Peede v. State, 748 So.2d 253 (Fla.1999); and Rivera v. State, 717 So.2d 477 (Fla.1998)). In LeCroy v. Dugger, 727 So.2d 236 (Fla.1998), we further explained:

A motion for postconviction relief can be denied without an evidentiary hearing when the motion and the record conclusively demonstrate that the mov-ant is entitled to no relief. A defendant may not simply file a motion for postcon-viction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing. The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant.

LeCroy, 727 So.2d at 239 (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).

JURY VENIRE

Gordon argues that the trial court erred in summarily denying his claim that trial counsel was ineffective in not effectively challenging the all-white venire from which his jury was selected. The standard for establishing a prima facie violation of the Sixth Amendment’s fair cross-section requirement is set forth in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979):

(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this un-derrepresentation is due to systematic exclusion of the group in the jury-selection process.

Id. at 364, 99 S.Ct. 664. Because Gordon has not initially established a prima facie showing in his motion that black people were systematically excluded from the jury selection process, his claim was properly summarily denied by the trial court. In other words, Gordon has not set out in his motion a proper claim on the merits on this issue that counsel could have advanced. See Robinson v. State, 707 So.2d 688, 699 (Fla.1998) (holding that trial court did not err in summarily denying claim where the petitioner “made no showing at trial or in his postconviction motion that blacks are systematically excluded from venires in St. Johns County”). Accordingly, we deny Gordon relief on this claim.

TESTIMONY OF SUSAN SHORE

Next, Gordon argues that the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to move to exclude the testimony of an alleged accomplice, Susan Shore. However, as noted by the trial court, there would not have been a valid basis on which to exclude Shore’s testimony, as the State has the right to call witnesses, in particular an accomplice, to testify against a defendant. See Hunt v. State, 613 So.2d 893 (Fla. 1992). Further, the record reflects that Shore was cross-examined regarding the circumstances of her plea agreement, and trial counsel emphasized her obvious self-interest in avoiding more serious punishment. We find no error in the summary denial of this claim.

We also find Gordon’s argument on appeal that the State engaged in continued and “malicious prosecution” of Susan Shore as procedurally barred. “Except in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court.” Stein-korst v. State, 412 So.2d 332, 338 (Fla. 1982). As noted by the State, this claim was not raised in Gordon’s motion for post-conviction relief.

OPINION TESTIMONY

Next, Gordon argues that the trial court erred in denying an evidentiary hearing on his claim that counsel was ineffective for failing to object to or strike the expert opinion testimony of witnesses Mary Anderson and Detective Michael Ce-lona. However, we find no error in the trial court’s conclusion that the testimonies of Mary Anderson and Detective Celona did not constitute expert testimony. Under section 90.702, Florida Statutes (2003), expert testimony is defined as “scientific, technical, or other specialized knowledge.” The record demonstrates that Mary Anderson simply factually explained the contents of phone records that linked Gordon to Davidson’s murder, and Detective Celona factually compared the locations on the phone records to locations on the cell site maps. Further, as noted by the trial court, while it is possible that Mary Anderson’s lengthy experience with Cellular One informed her testimony and was useful in assisting the jury to understand the phone records, counsel also could not be deemed ineffective because if challenged, her record qualifications demonstrate that she would have been qualified as an expert on the matters she addressed. Since counsel cannot be deemed ineffective for pursuing futile motions, trial counsel cannot be deemed to have performed defi-ciently in this regard.

PENALTY PHASE JURY

Gordon also challenges the trial court’s summary denial of his claim that trial counsel was ineffective for failing to seek a separate penalty phase jury. Gordon’s postconviction motion alleges the following conduct as examples of counsel’s ineffectiveness in this regard: (1) failing to seek a new penalty phase jury for Gordon different from the one which determined his guilt, and (2) failing to seek a penalty phase jury for the case against Gordon separate from the case against codefen-dant McDonald. However, having reviewed both instances on the merits, we conclude that the trial court did not err in determining that neither assertion constitutes ineffective assistance of counsel.

At the time of Gordon’s 1995 trial, Florida law provided for a new penalty phase jury only in limited circumstances:

If, through impossibility or inability, the trial jivry is unable to reconvene for a hearing on the issue of penalty, having determined, the guilt of the accused, the trial judge may summon a special juror or jurors as provided in chapter 913 to determine the imposition of the penalty.

See § 921.141(1), Fla. Stat. (1995) (emphasis added). As the trial court noted here, there was no legal basis demonstrated by Gordon in his postconviction motion for a separate penalty phase jury. Indeed, we have previously stated: “This Court has rejected the argument that separate juries should be empaneled for the guilt and penalty phases of all capital trials. Jurors must be able to follow the law as given by the trial judge, which includes following the judge’s instructions to weigh aggravating and mitigating factors.” Melton v. State, 638 So.2d 927, 929 (Fla.1994) (citation omitted).

Furthermore, with respect to the claim of neglect in not seeking separate penalty phase juries for Gordon and code-fendant McDonald, this Court has explained:

Where co-defendants are tried together on a capital charge, there being no ground for a severance of the guilt-or-innocence phase of the trial, it is proper for the court to proceed with a joint sentencing trial so that the same jury that heard all the guilt-phase evidence can consider and weigh the relative roles and culpability of the offenders.

Maxwell v. Wainwright, 490 So.2d 927,- 933 (Fla.1986). Here, where Gordon has not demonstrated in his postconviction motion a valid claim for severance or a separate jury on the merits that counsel could have advanced, it was entirely appropriate that the trial court deny this claim.

PROSECUTORIAL MISCONDUCT

Gordon contends that the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to object to prosecutorial misconduct during closing argument. Gordon cites one statement. In closing, the prosecutor said, “He [Gordon] knows where that murder weapon was, and he knows what it is.... Gordon came out from Dr. Davidson’s apartment, but he was by himself.” Because the aforementioned guilt phase prosecuto-rial comment is the only one raised in Gordon’s postconviction motion, it is the only one properly before this Court.

The trial court concluded that the comment was made in response to defense counsel’s comments in closing regarding the absence of the murder weapon. We conclude the prosecutor’s comment merely reflected the State’s theory of what happened in the case. Because we conclude these comments would not have constituted reversible error even had they been objected to at trial, we affirm the trial court ruling summarily denying this claim. See Thompson v. State, 759 So.2d 650, 664 (Fla.2000).

DNA TESTING

Next, Gordon asserts that the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to seek to exclude the results of scientific tests where, through no fault of the State, the material tested was destroyed. Even if trial counsel’s performance was deficient, Gordon has not shown how the innocent consumption of the DNA prejudiced him. In order to prevail on a claim involving destruction of DNA samples, a defendant must prove that the State acted in bad faith. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Additionally, Florida courts have held that the unavoidable consumption of testing material does not trigger a constitutional violation. See State v. T.L.W., 457 So.2d 566 (Fla. 2d DCA 1984); State v. Herrera, 365 So.2d 399 (Fla. 3d DCA 1978). Therefore, as Gordon has neither asserted a claim of bad faith nor explained any prejudice in this instance, he is not entitled to relief here.

INTERNATIONAL LAW

Gordon also argues that he was denied the protections of international law and deprived of the advice and assistance of officials of the Jamaican Consulate, a right which he asserts is granted under the authority of Article 36, Vienna Convention on Consular Relations. We have previously determined that such an issue is procedurally barred in a motion for postconviction relief because it could have and should have been raised on direct appeal. See Maharaj v. State, 778 So.2d 944, 959 (Fla.2000) (holding that petitioner’s claim alleging a violation of the Vienna Convention was procedurally barred where it was not raised on direct appeal); Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla. 1995) (holding that claims not raised on direct appeal are procedural!y barred from consideration in a rule 3.850 motion). Furthermore, Gordon has failed to establish that he has standing to assert such a claim, as we have held that such treaties constitute agreements between countries, not citizens. See Maharaj, 778 So.2d at 959. Finally, as noted by the trial court, Gordon has failed to demonstrate prejudice. See Darling v. State, 808 So.2d 145 (Fla.2002) (holding that petitioner’s claim that his rights under the Vienna Convention were violated did not merit relief due to petitioner’s failure to demonstrate prejudice resulting from the violation).

CONSPIRACY

In the last of Gordon’s summarily denied claims, Gordon argues that the trial court should have granted an evidentiary hearing on his claim that his due process rights were violated as a result of a conspiracy to present false evidence by state and federal authorities. This claim is facially invalid and unsupported by the record. Therefore, the claim merits no relief.

EVIDENTIARY HEARING

At Gordon’s evidentiary hearing, four claims of ineffective assistance of counsel were addressed and denied. The framework for analyzing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review based on the Strickland test. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). Therefore, this Court must engage in an independent review of the trial court’s legal conclusions, while giving deference to the trial court’s factual findings.

ALIBI

First, Gordon argues that trial counsel was ineffective for failing to present an alibi defense. Counsel’s failure to put on an alibi defense was discussed in detail at the evidentiary hearing, and trial counsel stated in unambiguous terms that he was against the use of an alibi defense because he was certain that it would fail. Therefore, the trial court concluded that the decision not to put on an alibi defense constitutes a strategic decision. “[C]oun-sel’s strategic decisions will not be second-guessed on collateral attack.” Johnson v. State, 769 So.2d 990,1001 (Fla.2000) (citing Remeta v. Dugger, 622 So.2d 452 (Fla. 1993)).

Furthermore, trial counsel testified that in addition to relying on the results of the investigation that occurred prior to his appointment as Gordon’s trial counsel, he hired another investigator to follow up on the alibis — none of which produced what he felt would be beneficial evidence for an alibi defense. Therefore, we find no error in the trial court’s conclusion that Gordon has not satisfied the required showing of deficient performance under Strickland.

With respect to Gordon’s claim that he did not voluntarily waive his alibi defense, the trial court discussed this claim at length in its order, having found that Gordon received competent advice regarding the use of an alibi defense. The record reflects that the trial court engaged in a colloquy with Gordon before the waiver. Further, the trial court pointed out that even though Gordon’s and trial counsel’s testimony on this issue were contradictory, the testimony of codefendant McDonald’s trial counsel was consistent with Gordon’s trial counsel. There was also testimony that Gordon was adamantly against a delay in the trial. Gordon knew that severance, and therefore delay, would result if he pursued the alibi defense. Accordingly, we find no error in the denial of relief on this claim.

DNA

Next, Gordon argues that trial counsel was ineffective for failing to challenge the admissibility of DNA evidence and failing to request a Frye hearing. At the eviden-tiary hearing, trial counsel and codefen-dant McDonald’s counsel expressly indicated that as a part of the defense strategy, it was actually desirable to present to the jury the unidentified DNA evidence that did not implicate either Gordon or McDonald, in order to corroborate the defense theory of what happened the day of the murder. It was also a part of the strategy to-get before the jury the small amount of DNA that implicated McDonald because it supported the defense theory that the defendants merely went in to get a piece of paper and that another man, Leonardo Cisneros, was the real killer. In its order, the trial court discussed the lack of a challenge to the DNA evidence at length, identifying a variety of reasons that this claim does not merit relief. We agree with the sound reasoning of the trial court, which was primarily based on the fact that counsel’s decision was an intended strategic one, and the courts will not second-guess such a decision. See Johnson v. State, 769 So.2d 990, 1001 (Fla. 2000).

SEVERANCE

Gordon contends that trial counsel was ineffective for failing to move to sever his trial from that of codefendant McDonald. The evidentiary record reflects, however, that trial counsel’s decision not to move to sever was the result of a strategic decision that it would be in Gordon’s best interest for Gordon and McDonald to be tried as codefendants. As noted above, strong deference is granted to the strategic decisions made by trial counsel, even where they are ultimately unsuccessful in avoiding a guilty verdict or death sentence. We have repeatedly held “[c]ounsel’s strategic decisions will not be second-guessed on collateral attack.” Johnson v. State, 769 So.2d 990, 1001 (Fla.2000) (citing Remeta v. Dugger, 622 So.2d 452 (Fla. 1993)).

Further, as noted by the trial court, counsel cannot be deemed to be ineffective for failing to raise a motion that would have been futile. Under Florida Rule of Criminal Procedure 3.152(b)(1)(A), a severance of defendants may be ordered when it is appropriate to promote a fair determination of the guilt or innocence of the defendants. A severance is not necessary when the evidence is “presented in such a manner that the jury can distinguish the evidence relating to each defendant’s acts, conduct, and statements, and can then apply the law intelligently and without confusion to determine the individual defendant’s guilt or innocence.” Coleman v. State, 610 So.2d 1283, 1285 (Fla. 1992) (quoting McCray v. State, 416 So.2d 804, 806 (Fla.1982)).

In McCray, this Court affirmed a denial of severance because: (1) the defendant had a full opportunity to confront and cross-examine each of the witnesses against him; (2) none of the codefendants inculpated each other by confessing; and (3) the evidence was not too complex for the jury to apply it to each individual defendant. See 416 So.2d at 807. The record in Gordon’s case reflects that the criteria outlined by this Court in McCray were satisfied. Gordon had a full opportunity to confront and cross-examine each of the witnesses against him, McDonald did not inculpate Gordon by confessing to Davidson’s murder, and the evidence was not too complex for the jury to apply it to each individual defendant. Therefore, severance would not have been proper in Gordon’s case, and accordingly the trial court properly ruled that counsel was not ineffective for failing to move to sever Gordon’s case from that of codefendant McDonald. Importantly, Gordon has failed to demonstrate that the same evidence presented at the joint trial would not have also been presented in a severed trial. Hence, no prejudice has been demonstrated.

Gordon’s argument that other strategies could have been employed if separate trials had occurred appears entirely speculative. In McCray, this Court noted:

[T]he fact that the defendant might have a better chance of acquittal or a strategic advantage if tried separately does not establish the right to a severance. Nor is hostility among defendants, or an attempt by one defendant to escape punishment by throwing the blame on a codefendant, a sufficient reason, by itself, to require severance.

Id. at 806 (citations omitted).

COUNSEL’S PREPARATION

Lastly, Gordon asserts that trial counsel was ineffective for failing to thoroughly investigate and prepare. This claim appears to be a redundant attack on trial counsel’s strategic decisions discussed above. Gordon’s argument in this claim largely consists of reargument of the other ineffective assistance of counsel claims raised in Gordon’s brief. Specifically, Gordon reasserts the claims denied by the trial court following the evidentiary hearing. Because these claims have been previously addressed, it is unnecessary to rehash them here.

With respect to his claim that trial counsel did not properly investigate and prepare for trial, the trial court concluded that Gordon had not satisfied either the deficient performance requirement or the prejudice requirement under Strickland. Gordon’s argument consists of general complaints about trial counsel’s knowledge of DNA, his knowledge of the existence of an alleged document, and his failure to present other defenses. These complaints appear entirely speculative.

On the other hand, the record reflects that trial counsel researched the case, investigated Gordon’s alleged alibis, consulted with potential alibi witnesses, hired an independent investigator to follow up on those alibis, consulted with the Public Defenders’ office investigator, consulted with the codefendant’s counsel regarding trial strategy, consulted with Gordon, and hired an expert to assess Gordon’s ability to understand and comprehend the proceedings. This evidence supports the trial court’s rejection of this claim. We have emphasized that the fact that there may have been more that trial counsel could have done or that appellate counsel in reviewing the record with hindsight would have taken a different approach does not mean that trial counsel’s performance during the guilt phase was deficient. See Cherry v. State, 659 So.2d 1069 (Fla.1995). Further, the trial court also considered that trial counsel’s preparation was hin-dfered because of Gordon’s insistence on proceeding to trial, even though trial counsel took over the case only two months before trial.

CONCLUSION

For the reasons discussed above, we affirm the trial court’s denial of Gordon’s motion for postconviction relief.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

      . Huffv. State, 622 So.2d 982 (Fla. 1993).

      . The following claims were summarily denied by the trial court: (1) ineffective assistance of counsel in jury selection; (2) ineffective assistance of counsel for failure to move to exclude or suppress the testimony of Susan Shore; (3) ineffective assistance of counsel for failure to object to or strike the opinion testimony of Mary Anderson and Michael Ce-lona; (4) ineffective assistance of counsel for failing to seek a separate penalty phase jury; (5) ineffective assistance of counsel for failing to seek a mistrial based on prosecutorial misconduct during closing; (6) ineffective assistance of counsel for failing to seek to exclude results of tests where the material tested had been destroyed; (7) the State of Florida violated his entitlement to certain rights established by the Vienna Convention; and (8) Gordon's due process rights were violated as a result of a conspiracy to present false evidence by state and federal authorities.

      .The trial court granted an evidentiary hearing on the following claims: (1) ineffective assistance of counsel in failing to present an alibi defense; (2) ineffective assistance for failing to challenge the admissibility of DNA evidence and to conduct a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir. 1923); (3) ineffective assistance of counsel for failing to move to sever; and (4) ineffective assistance of counsel for failing to thoroughly investigate and prepare for trial.

      . Gordon challenges the testimony of Mary Anderson, a Cellular One employee, and part of the testimony of Detective Michael Celona, who testified at trial regarding cellular phone records, roaming areas, location of cell sites regarding cellular phones, and the location of individuals placing certain cellular phone calls.

      . Because neither defendant put on any evidence at trial, the defendants' initial closing arguments were made first.


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Alfred J. WAGNER, Respondent.
    No. SC02-2167.
    Supreme Court of Florida.
    Jan. 8, 2004.
    Charles J. Crist, Jr., Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, FL; and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, FL, for Petitioner.

      James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Respondent.
   BELL, J.

We review State v. Wagner, 825 So.2d 453 (Fla. 5th DCA 2002), which expressly and directly conflicts with State v. Trem-blay, 642 So.2d 64 (Fla. 4th DCA 1994). For the reasons that follow, we quash the Fifth District’s decision in Wagner and approve the decision of the Fourth District in Tremblay, which held that a signed court status form does not constitute a final, appealable order under the Florida Rules of Appellate Procedure. Our approval of Tremblay, however, is limited to its holding. We disapprove the dicta expressed in that opinion.

I.

The State sought to have Alfred Wagner involuntarily committed as a sexually violent predator pursuant to the Jimmy Ryce Act. §§ 394.910-931, Fla. Stat. (2002). On January 23, 2002, the circuit court held a hearing on Wagner’s motion to dismiss the State’s involuntary commitment petition. The court denied the motion to dismiss but concluded that Wagner should be released from custody pending resolution of the commitment proceedings. The judge then signed the “open court minutes” form, which contained the following notation: “Defendant to be released immediately from custody.”

At the hearing, the judge instructed Wagner’s attorney to prepare the formal order. This instruction was also noted on the court minutes form: “[Wagner’s attorney] to prepare an Order.” The judge explained to the attorneys that Wagner’s attorney was to send a copy of the drafted order to the State’s attorney and that a follow-up hearing would be held if the State’s attorney objected to the content of the drafted order. As it turned out, the State did object to portions of Wagner’s drafted order, arguing that it did not accurately reflect the judge’s prior oral pronouncements. A hearing on the matter was held on March 20, 2002. On March 26, 2002, the court issued its formal written order releasing Wagner from custody pending resolution of the involuntary commitment proceedings.

On April 25, 2002, the State petitioned the Fifth District for a writ of certiorari. The district court dismissed the petition as untimely filed. Wagner, 825 So.2d at 453-54. It concluded that the signed court minutes form, which “gave a clear written direction to release Wagner immediately,” constituted an appealable order. Id. at 455. This conclusion was premised upon the determination that the order was rendered that same day when it was filed with the court clerk. Id. Consequently, the State’s certiorari petition was deemed untimely because it was filed more than thirty days thereafter. Id. at 455-56.

The State invoked this Court’s discretionary jurisdiction, claiming that the district court’s opinion expressly and directly conflicted with Tremblay. In Tremblay, the Fourth District held that a signed court status form, which indicated that a particular charge against the defendant had been dismissed, did not constitute a final, appealable order under the Florida Rules of Appellate Procedure. We exercised our discretionary jurisdiction to resolve the conflict.

II.

Wagner argues that the trial court rendered its order on January 28, which was the date on which it orally pronounced that Wagner was to be immediately released and on which it then signed and filed with the clerk the court minutes form, which indicated that Wagner was to be immediately released. The State, on the other hand, contends that the trial court’s order was not rendered until March 26, the date on which the trial court issued its formal written order. If Wagner is correct, then the State’s certiorari petition was properly dismissed by the district court as untimely filed. If the State is correct, then its petition was timely filed and improperly dismissed by the district court.

The Florida Rules of Appellate Procedure define an “order” as “[a] decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries.” Fla. R.App. P. 9.020(f). The rules explicitly exclude “minutes and minute book entries” from the definition of “order.” The Committee Notes to rule 9.020 state that “[mjinute book entries are excluded from the definition' in recognition of the decision in Employers’ Fire Ins. Co. v. Continental Ins. Co., 326 So.2d 177 (Fla. 1976). It was intended that this rule encourage the entry of written orders in every case.”

In Employers’ Fire, we noted that “[t]he inevitable variations in the way judges complete court minutes suggest that these entries would generally be an unreliable guide by which to measure either appellate or limitations time.” 326 So.2d at 180. We also noted the “wide disparity in the practices of our trial courts as to the time, manner and completeness of minute book entries,” id., and foresaw “a whole range of legal problems arising from signings on a day subsequent to the day of the actual activity recorded, and from the completeness of the information contained in minute book recitations.” Id. at 180 n. 8. On the other hand, we also recognized “that there is an arbitrary aspect to a measuring event which depends upon the willingness of trial counsel to supply a form called ‘final judgment’ to the trial judge.” Id. at 180.

Ultimately, we concluded in Employers’ Fire that “a distinction should be drawn between the time for commencing an appeal and the time for commencing a statute of limitations on a money judgment.” Id.

With respect to an appeal, the arbitrary delay between a determination of liability and the signing of a judgment document is not a significant cause for concern. The rendition of an adverse money judgment in a lawsuit, and the desire to suspend the effect of the loss as promptly as possible, provide sufficient incentives for counsel to prepare and submit the necessary paper work to end the trial court’s labor and lay the predicate for appellate review. Equally important is the fact that a trial court’s decision is more clearly articulated, and therefore more reviewable, in a final judgment document than in a minute book notation. For these reasons, the time for taking an appeal should be governed by the rendition of a formal document of judgment by the trial judge ... rather than by the signed entry in a minute book.

Id. at 180-81 (emphasis added).

We believe that the rationale of Employers’ Fire, which was explicitly included in the Florida Rules of Appellate Procedure, controls our resolution of this case. For purposes of Florida Rule of Appellate Procedure 9.100(c)(1), which requires a petition for a writ of certiorari to be filed “within 30 days of rendition of the order to be reviewed,” a court minutes form, even if signed by the judge, does not constitute a reviewable order. The text of Florida Rule of Appellate Procedure 9.020(f), the Committee Notes, and the rationale of Employers’ Fire clearly dictate this result. A formal written order will articulate the trial court’s decision and its supporting reasoning much more clearly than a clerk’s notation in a court minutes form. The result reached by the Fifth District in Wagner would not serve the policy of efficient and thorough appellate review. It would also create situations of inadvertent rendition where the judge had signed a court minutes form and filed it with the clerk unbeknownst to the parties. A regime engendering so much uncertainty is anything but workable.

III.

Because the signed court minutes form was not an order within the definition of the Florida Rules of Appellate Procedure, the act of filing it with the court clerk did not amount to the rendition of an order. The appellate jurisdictional clock of Florida Rule of Appellate Procedure 9.100(c)(1) did not begin ticking in this case until March 26, the date on which the formal written order was signed by the judge and filed with the court clerk. It follows, therefore, that the State’s petition for a writ of certiorari was timely filed. Accordingly, we quash the decision of the Fifth District in the case below.

With respect to Tremblay, we approve the holding of the Fourth District that a signed court status form does not constitute a final, appealable order under the Florida Rules of Appellate Procedure. However, we disapprove the court’s statement that under certain peculiar circumstances a court status form could be found to be a final, appealable order.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., concur.

      . We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution.

      . The transcript of the hearing reveals the following colloquy:
      THE COURT: ... So what I'm going to do at this point, Mr. Kutsche [Wagner's attorney], is I'm going — you’re going to have to draw the order, but what I'm going to do, at this moment, subject to a formal order, I'm going to deny your motion to dismiss the petition in the case without prejudice for you to raise the additional arguments that you have wanted, that you've filed here today at a later time, and I’m going to order Mr. Wagner to be released immediately from the custody of the Department of Children and Families.

      THE COURT: And I’d ask you to draw the order, and I'll find the fifteen days [sic] for the State to appeal to begin upon the rendition of the order.
      [WAGNER’S ATTORNEY]: Yes sir.
      [STATE'S ATTORNEY]: I would ask Mr. Kutsche to somehow notify me so that I can, when the order is drafted and when it's signed by you so I know what my appeal time is.
      THE COURT: Well, what will happen is ... [b]efore he sends me an order to sign, he’ll send you a copy of the order so you can approve it as to form.
      [STATE’S ATTORNEY]: Right.
      THE COURT: And then you’ll know when it's been signed.
      [STATE'S ATTORNEY]: I just wanted that on the record so I know that I’m going to receive that copy.
      THE COURT: In other words, once you draft the order, send it over, let her look at it, if she thinks you've got something in there that I didn’t say, then you can, — we even have hearings sometimes when they disagree as to the form of the order. Basically, I want to give you something to appeal more than what I just said, more than some form order that the clerk prepared. By then, the Supreme Court may decide that Atkinson was wrongly decided and we can all take it back.

      [WAGNER’S ATTORNEY]: Your honor, is he-I take it that he actually is not going to be released until the formal order is signed and transmitted.
      THE COURT: I just signed an order saying that he's to be released from custody immediately. We'll give this to these gentleman that brought him here, and they can head on back without him unless he wants to go back with them to get his stuff and be released from Martin County, that’s up to him. I guess they’ll give him a ride, I don’t know. I don’t know if their insurance will cover it or not.

      ."An order is rendered when a signed, written order is filed with the clerk of the lower tribunal." Fla. R.App. P. 9.020(h).

      . A petition for a writ of certiorari must be filed "within 30 days of rendition of the order to be reviewed.” Fla. R.App. P. 9.100(c)(1).

      . Instead of looking to rule 9.020(f), the Fifth District looked to a legal dictionary to define an "order” as “a command, direction, or instruction.” Wagner, 825 So.2d at 455 (quoting Black’s Law Dictionary 1123 (7th ed.1999)).

      . Although the issue before us in Employers’ Fire dealt expressly with "judgments/’ we noted that "[b]oth parties argue from decisions fixing the time for commencement of an appeal.” Id. at 179-80.

      . For example, in State v. Brown, 629 So.2d 980 (Fla. 5th DCA 1993), the Fifth District held that a "court minutes/order” form, signed by the judge and filed with the court clerk, constituted a rendered order. As opposed to the court minutes form at issue here, and the court status form at issue in Trem-blay, the form signed by the judge and filed with the clerk in Brown was explicitly designated by the court as an "order.” Brown, 629 So.2d at 980 ("The trial court X'd the blanks preceding both the words 'Court Minutes’ and the words 'Order (Motion Hearing),’ indicating that the subject form was both the court minutes and an order of the court.”).


author: VILLANTI, Judge.

text:
    Walter BRYANT, Appellant, v. John WALSH; William Balkwill, Sheriff of Sarasota County; and Sarasota County, Appellees.
    No. 2D03-358.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.
    Rehearing Denied Jan. 30, 2004.
    Audrey Bear of Law Office of Audrey Bear, P.A., Sarasota, Michele S. Stephan, Venice, and John P. Graves of Law Office of John P. Graves, Jr., Chartered, Sarasota, for Appellant.
    Jorge L. Fernández, County Attorney, and Milan Brkich, Assistant County Attorney, Sarasota, for Appellees.
   VILLANTI, Judge.

Walter Bryant appeals the trial court’s order granting a new trial based on its determination that the verdict entered in Bryant’s favor was against the manifest weight of the evidence. The order failed to provide express reasons from the record to support the conclusion that the verdict was against the manifest weight of the evidence. See Wackenhut Corp. v. Canty, 359 So.2d 430, 434 (Fla.1978); Hawk v. Seaboard Sys. R.R., 547 So.2d 669, 671 (Fla. 2d DCA 1989). We conclude that the trial court abused its discretion in determining the verdict was against the manifest weight of the evidence. Accordingly, the order granting new trial is reversed and the cause remanded for reinstatement of the jury’s verdict.

Reversed and remanded.

WHATLEY and WALLACE, JJ., Concur.


author: PER CURIAM.

text:
    Bradley Joseph HARKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5414.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.
    Rehearing Denied Jan. 30, 2004.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Bradley Joseph Harkins, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm Bradley Joseph Harkins’ convictions and sentences without prejudice to any right he may have to file a motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

COVINGTON and VILLANTI, JJ., and GREEN, OLIVER L., Senior Judge, Concur.


author: GROSS, J.

text:
    Lawrence R. GROBMAN, M.D., Lawrence R. Grobman, M.D., P.A., and SSJ Mercy Health System, Inc., d/b/a Mercy Hospital, and Mercy Hospital, Inc., d/b/a Mercy Hospital, Appellants, v. Elizabeth POSEY, individually and as parent and legal guardian of Justin Posey and Austin Posey, her minor children, Appellees.
    Nos. 4D02-717, 4D02-747.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Helen Ann Hauser of Dittmar & Hau-ser, P.A., Coconut Grove, and Manuel Epelbaum of Robert J. Dickman, P.A., Coral Gables, for appellants Lawrence R. Grobman, M.D., and Lawrence R. Grob-man, M.D., P.A.
    Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, Joel R. Wolpe and Isabel Negreira of Wolpe & Leibowitz, L.L.P., Miami, and Lewis W. Fishman of Lewis W. Fishman, P.A., Miami, for appellants SSJ Mercy Health System, Inc., d/b/a Mercy Hospital, and Mercy Hospital, Inc., d/b/a Mercy Hospital.
    Edna L. Caruso of Caruso & Burlington, P.A., West Palm Beach, Scott M. New-mark and Sheldon J. Schlesinger of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellees.
   GROSS, J.

Dr. Lawrence R. Grobman and SSJ Mercy Health System, Inc. d/b/a Mercy Hospital appeal from an amended final judgment entered after a jury trial in a medical malpractice action.

The issue we write to address is whether Grobman and Mercy Hospital, non-settling defendants, are entitled to a full setoff for sums paid by a settling defendant prior to trial. Because section 768.81, Florida Statutes (1995), did not apply to the causes of action asserted against the settling defendant, we hold that appellants are entitled to a setoff of the full amount paid in settlement.

In May 1995, Elizabeth Posey went to her primary care physician complaining of ear problems. Posey’s physician noticed something in her ear and referred her to an ear, nose, and throat doctor, Dr. Brad Nitzberg, who ordered a CT scan. The scan disclosed a mass which was potentially a tumor, so Nitzberg referred Posey to a neuro-otologist, Dr. Grobman, for surgery.

On June 13, 1995, Posey went to Mercy Hospital for outpatient surgery to remove what was thought to be a vascular tumor in her middle ear. Dr. Grobman removed the “tumor,” which was actually a congenital defect known as an aberrant carotid artery. Due to the massive blood loss Posey experienced and the unexpected complexity of the surgery, she was admitted to Mercy Hospital for overnight observation. Several hours after her admittance, Posey suffered a stroke.

In 1996, Posey and her husband filed a twelve-count complaint for medical malpractice against numerous defendants on behalf of themselves individually, and as parents of Justin and Austin Posey. The complaint was later amended.

Among the defendants were Dr. Grob-man, who performed the surgery, Mercy Hospital, where the surgery was performed, Dr. Nitzberg, the doctor who referred Posey to Dr. Grobman, and Dr. Stuart Hantman, the radiologist who had initially read the CT scan of Posey’s middle ear.

Significant for this opinion, Posey sued her HMO, treating Prudential Health Care Plan, Inc. and Prudential Insurance Company of America (collectively referred to in this opinion as “Prudential”) as one entity. Against Prudential, Posey asserted two theories of liability: first, that Prudential was vicariously liable for the conduct of its agents, Grobman, Nitzberg, and Hantman and second, that Prudential was directly liable for negligently credentialing its health care providers, Grobman, Nitzberg, and Hantman.

Defendants Grobman and Mercy Hospital raised a defense under Fabre v. Marin, 623 So.2d 1182 (Fla.1993), receded from in part by Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995). Nitzberg, Hantman, and Prudential settled with Posey prior to trial. Prudential settled for $1,250,000; that amount was not allocated between the causes of action against Prudential, nor was it allocated between economic and non-economic damages.

The trial proceeded against Grobman and Mercy Hospital. As for the Fabre defense, appellants requested that the jury apportion fault to Nitzberg, Hantman, and the anesthesiologist involved in the surgery. The defendants did not ask that the jury apportion fault to Prudential, which was not included on the verdict form.

The jury returned a verdict finding Grobman 90% negligent and Mercy Hospital 10% negligent. The jury found the three Fabre non-party doctors not negligent. The jury awarded damages of $5,663,812: past medicals of $134,000, future medicals of $2,000,000, past lost earnings of $137,444, future lost earning capacity of $862,368, past pain and suffering of $500,000, and future pain and suffering of $2,000,000. The jury awarded Posey’s two children $75,000 each.

Among the post-trial motions filed by Grobman and Mercy Hospital were ones seeking a setoff of the amount Prudential paid in settlement of the case. The trial court denied the motions on the ground that the defendants’ failure to have the jury decide whether Prudential was liable precluded their ability to claim a setoff.

Appellants’ entitlement to a setoff turns on whether Prudential was a party defendant to which the apportionment requirement of section 768.81(3), Florida Statutes (1995) applied. If section 768.81(3) did not apply, then Prudential was not a proper Fabre defendant, and the failure to include it on the verdict form had no legal effect.

A trilogy of supreme court cases has considered a non-settling defendant’s entitlement to a setoff for sums paid before trial to the plaintiff by a settling defendant. See D’Angelo v. Fitzmaurice, 863 So.2d 311 (Fla. 2003); Gouty v. Schnepel, 795 So.2d 959 (Fla.2001); Wells, 659 So.2d at 253. All three cases attempt to reconcile the requirement of section 768.81(3) that “each defendant is solely responsible for his or her share of noneconomic damages,” Wells, 659 So.2d at 252, with the setoff provisions of 768.041(2), 46.015(2), and 768.31(5), Florida Statutes (1995).

In D’Angelo, the supreme court limited its holding in Gouty and held that a “settling defendant does not have to be found liable before an economic damages setoff can be given.” 863 So.2d at 316. To obtain a setoff for non-economic damages, D’Angelo maintained the Gouty requirement that a defendant must follow the procedure outlined in Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262, 1263-64 (Fla.1996): “[t]he nonsettling defendant is obligated to file appropriate pleadings and to ensure that any settling party under Fabre appears on the verdict form.” D’Angelo, 28 Fla. L. Weekly at S842.

The key question is whether the holding in D’Angelo applies to this case.

Crucial to the trilogy of section 768.81 settlement cases is the assumption that section 768.81(3) applies to the claim against the settling defendant. In cases to which it applies, section 768.81 “eliminates joint and several liability for noneconomic damages and limits joint and several liability for economic damages.” DAngelo, 863 So.2d at 314. Section 768.81 “applies to negligence cases, including professional malpractice cases.” Id.; see § 768.81(4), Fla. Stat. (1995). Where section 768.81 applies, it limits the scope of the statutes regarding setoffs—-sections 46.015(2), 768.041(2), and 768.31(5), Florida Statutes (1995). See DAngelo, 863 So.2d at 314.

To decide whether section 768.81 applies requires more than determining whether the case at hand is a negligence case. One must examine the cause of action asserted against a settling defendant to determine if section 768.81 requires apportionment of liability with another defendant. Such an inquiry asks if the settling defendant was the type of defendant that could have been added as a Fabre defendant on the verdict form.

In Fabre, the supreme court wrote that “section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneco-nomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident.” 623 So.2d at 1185 (emphasis added). Under the doctrine of joint and several liability, “all negligent defendants were held responsible for the total of the plaintiffs damages regardless of the extent of each defendant’s fault in causing the accident.” Id. at 1184. The impetus for enacting section 768.81 was the perceived unfairness of “requiring a defendant to pay more than his or her percentage of fault.” Id. at 1185.

Section 768.81 requires apportionment of non-economic damages “in eases involving joint tortfeasors.” Letzter v. Ce-phas, 792 So.2d 481, 487 (Fla. 4th DCA 2001). Joint tortfeasors are “ ‘[tjhose who act together in committing wrong, or whose acts if independent of each other, unite in causing a single injury.’ ” Id. at 486 (quoting Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 529 n. 3 (Fla. 5th DCA 1999) (Harris, J., dissenting) (quoting Blaoic’s Law DICTIONARY 752-53 (5th ed.1979))). In Hudson v. Weiland, 150 Fla. 523, 8 So.2d 37 (1942), the supreme court described the joint and several liability of joint tortfeasors:

[Wjhere the negligences of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable although there was no common duty, common design or concerted action.

Id. at 38 (emphasis in original).

Central to the concept of joint and several liability covered by section 768.81 is the idea that a potential defendant caused or contributed to a plaintiffs injury, that a defendant’s negligence “concurred” with that of another defendant to produce an injury. Theoretically, fault can be allocated among negligent defendants whose conduct concurred in causing the plaintiffs injury.

Vicarious liability does not mesh with the concept of liability that can be apportioned among joint tortfeasors. The vicariously liable party is responsible to the plaintiff to the same extent as the primary actor; both are jointly liable for all of the harm that the primary actor has caused. In such a situation, fault cannot be divided into the percentages contemplated by section 768.81. Also, the vicariously liable party has engaged in no wrongful conduct. Thus, there can be no “fault” within the meaning of section 768.81(3). The basis for imposing liability is that party’s relationship with the negligent tortfeasor.

The supreme court has expressly recognized that apportionment of fault under section 768.81 is not appropriate where a defendant’s liability is only vicarious. In Nash, 678 So.2d at 1263-64, the supreme court established “the procedure for apportioning the fault [under section 768.81] of a person or entity not joined as a defendant in the suit.” D’Angelo, 863 So.2d at 315. The court held “that the named defendant cannot rely on the vicarious liability of a nonparty to establish the nonparty’s fault.” Nash, 678 So.2d at 1264. This holding is consistent with the observation that

[apportionment of responsibility is simply ill-suited for cases where a party’s liability for negligence is solely vicarious. AlS one commentator has explained:
The liability of a master for the acts of a servant ... within the scope of the employment ... stands upon grounds that do not support apportionment. Under the doctrine of respondeat superior, the master becomes responsible for the same act for which the servant is liable, and for the same consequences. Ordinarily there is a sound basis for indemnity, but not for any apportionment of damages between the two.

William D. Underwood & Michael D. Morrison, Apportioning Responsibility in Cases Involving Claims of Vicarious, Derivative, or Statutory Liability for Harm Directly Caused by the Conduct of Another, 55 Baylor L.Rev. 617, 636 (2003) (quoting W. Page Keeton et al., PROSSER & Keeton on the Law of Torts, § 52, at 346 (5th ed.1984)); see Danner Constr. Co. v. Reynolds Metals Co., 760 So.2d 199, 203 (Fla. 2d DCA 2000) (stating that a defendant “could not be a Fabre defendant” because it was only “vicariously liable without personal fault”); J.R. Brooks & Son, Inc. v. Quiroz, 707 So.2d 861, 863 (Fla. 3d DCA 1998) (holding that section 768.81 did not apply to a defendant whose fault was purely vicarious).

For these reasons, the vicarious liability theory of recovery asserted against Prudential did not trigger the application of section 768.81.

Cases of derivative liability, such as Prudential’s negligent credentialing of a health care provider, “involve wrongful conduct both by the person who is derivatively liable and the actor whose wrongful conduct was the direct cause of injury to another.” Underwood & Morrison, supra, at 619. “Although the liability is not vicarious (because the derivatively liable person has engaged in tortious conduct), the liability is derivative because it depends upon a subsequent wrongful act or omission by another.” Id. at 642. Derivative liability is similar to vicarious liability in that (1) there is no cause of action unless the directly liable tortfeasor commits a tort and (2) the derivatively liable party is liable for all of the harm that such a tortfeasor has caused.

Given the similarity between derivative and vicarious liability, we hold that section 768.81 does not require the apportionment of responsibility between a defendant whose liability is derivative and the directly liable negligent tortfeasor. As one law review article has explained:

The logic behind refusing to apportion responsibility between directly and derivatively liable persons is compelling. When the risk of tortious or criminal conduct is the very risk that made the derivatively liable party’s conduct negligent in the first place, allowing the occurrence of that foreseeable conduct to reduce the responsibility of the derivatively liable party undermines the incen-five for that party to take precautions against this risk.

Id. at 646.

This reasoning was one basis for our holding in Suarez v. Gonzalez, 820 So.2d 342 (Fla. 4th DCA 2002). There the defendant was sued for negligently hiring an independent contractor who installed kitchen cabinets that fell onto the plaintiff. The installer was never identified and was not a party to the lawsuit. One of the questions on appeal was whether the trial court erred in excluding the anonymous independent contractor from the verdict form, so that the jury could allocate fault pursuant to section 768.81. Id. at 347. Comparing the ease to one of vicarious liability, we held that the trial court correctly excluded the independent contractor from the verdict form because section 768.81 did not apply:

Here, because [the defendant] negligently hired the “phantom” contractor, she is liable for his negligence to the same extent as if she had done the work herself. This is similar to situations of vicarious liability, such as master and servant, or the breach of a nondelegable duty, where there are no logical bases for apportioning liability into percentages of fault. Liability for damages may not be apportioned to a nonparty defendant where that liability is vicarious in nature.

Suarez, 820 So.2d at 347.

The negligent credentialing cause of action in this case is one of derivative liability like the negligent hiring theory of recovery in Suarez. In neither case does section 768.81 require apportionment of liability between the derivatively liable defendant and the directly liable negligent tortfeasor. Thus, Prudential was not a proper Fabre defendant to be placed on the verdict form under this theory of liability.

Because neither the vicarious nor the derivative claim against Prudential was subject to apportionment under section 768.81(3), the trilogy of section 768.81 settlement cases ending with D’Angelo does not control. Instead, the setoff issue is governed by sections 46.015 and 768.041, Florida Statutes (1995), which require a complete setoff as to amounts received from Prudential. See Quiroz, 707 So.2d at 863.

This result finds support in a case holding section 768.81 to be inapplicable in a similar context. Publix Supermarkets, Inc. v. Austin, 658 So.2d 1064 (Fla. 5th DCA 1995), involved two defendants, a negligent driver who caused an accident and Publix, which committed the willful tort of selling alcohol to a person under twenty-one. Section 768.125, Florida Statutes (1991) provided that a “culpable vendor becomes vicariously liable for the damages caused by the intoxicated tortfeasor.” Austin, 658 So.2d at 1068. The fifth district held that it was error for the trial court to allow the jury to apportion fault between the driver and Publix. Id. The court observed that if Publix were liable, “it would be liable for the entire judgment entered against” the driver; there was “no logical way for a jury to balance the wrongdoing of the willful vendor and the intoxicated tortfeasor.” Id.

We find no error concerning the other issues raised on appeal. We direct the circuit court to enter amended final judgments consistent with this opinion. Affirmed in part, reversed in part, and remanded.

POLEN, J., and OFTEDAL, RICHARD L., Associate Judge, concur.

      . On March 21, 2002, this court consolidated Case Nos. 4D02-717 and 4D02-747 for record purposes only. We now sua sponte consolidate these two cases for all purposes.

      . Posey's husband dismissed his claims at the beginning of trial.

      . The defendants to the original action included: 1) Brad Nitzberg; M.D.; 2) Stuart Hant-man, M.D.; 3) Stuart Hantman, M.D., P.A.; 4) Coral Springs Diagnostic Center, Ltd.; 5) C.S.D.C., Inc. d/b/a Coral Springs Diagnostic Center Ltd.; 6) Dauer Coral Springs Radiologists, P.A. d/b/a Dauer Coral Springs Radiology Associates; 7) Edward A. Dauer, M.D., P.A. d/b/a Florida Medical Radiology Associates; 8) Lawrence R. Grobman, M.D.; 9) Lawrence R. Grobman, M.D., P.A.; 9) Miami Ear Institute, Inc.; 10) Mercy Balance Center, Inc.; 11) NIB of South Florida, Inc.; 12) SSJ Mercy Health System, Inc. d/b/a Mercy Hospital; 13) Mercy Hospital, Inc. d/b/a Mercy Hospital; 14) Prudential Insurance Company of America d/b/a Prudential; and 15) Prudential Health Care Plan, Inc. d/b/a Pru-care.

      . Paragraph 215 of the amended complaint alleged that Prudential had a duty “to use reasonable care in assuring the competence of those physicians who are named as providers” and a duty "to name as provider only those health care providers who were substantially fit in the field for which they are to provide services to Plan Members.” Paragraph 219 alleged that Prudential had "negligently and carelessly failed to assure the competence” of numerous defendants and "negligently and carelessly failed to take corrective action in the form of investigation, restriction or removal from list of providers" after Prudential “became aware of” the defendants' "unfitness to serve as ... health care providers to members of the Plan.”

      . Although section 768.81(3) was amended in 1999, the "applicable version is that which was in effect when the cause of action arose.” D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 n. 9 (Fla. 2003). The version of the statute in effect in 1995 provided:
      (3) APPORTIONMENT OF DAMAGES. — In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.
      § 768.81(3), Fla. Stat. (1995).

      . In a case involving the negligent failure to employ reasonable security measures, the supreme court adopted similar reasoning in describing the public policy as to why section 768.81 does not require apportionment of liability between the negligent tortfeasor and the intentional, criminal, non-party tortfeasor. See Merrill Crossings Assocs. v. McDonald, 705 So.2d 560, 562-63 (Fla. 1997). After quoting from the Restatement (Second) of Torts § 449 (1965), the court wrote that "it would be irrational to allow a party who negligently fails to provide reasonable security measures to reduce its liability because there is an intervening intentional tort, where the intervening intentional tort is exactly what the security measures are supposed to protect against.” McDonald, 705 So.2d at 562-63.

      . Cases in other jurisdictions are split on the issue of whether fault should be apportioned between one who negligently entrusts an automobile and the negligent person who takes the vehicle and causes an accident. Compare Loom Craft Caipet Mills, Inc. v. Gorrell, 823 S.W.2d 431 (Tex.Ct.App.1992), and Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643 (Tex.Ct.App.2002), with McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982), and Ali v. Fisher, 2003 WL 22046673 (Tenn.Ct.App. July 3, 2003).


author: STEVENSON, J.

text:
    STATE of Florida, Appellant, v. Christopher LINDO, Appellee.
    No. 4D02-1490.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellant.
    Ronald Haber, Miami, for appellee.
   STEVENSON, J.

We affirm the order of the trial court vacating appellee’s plea of nolo contendere to the charge of grand theft on the basis that he was not advised of the deportation consequences of his plea.

Lindo was charged with grand theft and pled nolo contendere to the charge on August 11, 1990. Adjudication was withheld and Lindo was placed on probation. His probation was subsequently revoked and, on February 6, 1991, he was adjudicated guilty and placed on community control. On January 16, 1991, Lindo was also convicted of burglary of a conveyance in a different county.

Lindo, a Jamaican national, was served with a notice to appear for removal (deportation) proceedings on June 7, 2001, after he applied for United States citizenship. The notice informed Lindo that he was subject to deportation because of his conviction for two crimes involving moral turpitude, not arising out of a single scheme of criminal conduct, in violation of the Immigration and Nationality Act.

On January 2, 2002, Lindo moved to vacate the grand theft plea, arguing that when he pled no contest on August 11, 1990, he was never advised that, if he was not a United States citizen, his plea could subject him to deportation. At the hearing on the motion to vacate plea, Lindo testified that he was never warned that he could be deported as a consequence of his plea, stating “I would remember that because I have nowhere to go. Where would I live? In Jamaica? My family is here. I would remember that.”

Lindo’s 1990 public defender, Ann Marie Sapp, testified that she did not recognize his name and had no independent recollection of the case. She stated, however, that she generally advises a defendant that a plea could have deportation consequences. Sapp also testified that she could not recall whether the judge at Lindo’s plea hearing informed him of the deportation consequences. The State presented no evidence, and the trial court granted Lindo’s motion to vacate, finding that the motion was timely as it was filed within two years of June 7, 2001, the date he became aware of the threat of deportation. The trial judge also found that, based on the evidence, he could not conclude that Lindo was adequately advised of the deportation consequences of his plea.

In 1988, Florida Rule of Criminal Procedure 3.172(c)(8) was added to require judges presiding at plea colloquies to inform defendants pleading guilty or nolo contendere that, if they are not a United States citizen, their plea subjects them to deportation pursuant to the laws and regulations of the Immigration and Naturalization Service (INS). See In re Amendments to Fla. Rules of Criminal Procedure, 536 So.2d 992 (Fla.1988). The rule became effective on January 1, 1989, and is, thus, applicable to the instant case.

In Peart v. State, 756 So.2d 42 (Fla. 2000), the supreme court was asked to determine whether the two-year limitation in Florida Rule of Criminal Procedure 3.850 applies to claims alleging rule 3.172(c)(8) violations and, if so, at what point does the limitation period begin to run. See id. at 46. The court found that, following its decision in Wood v. State, 750 So.2d 592 (Fla.1999), the two-year limitation in rule 3.850 applied to all claims alleging a rule 3.172(c)(8) violation. Regarding when the two-year period would begin to run, the court stated:

[W]e hold that the limitation period runs from when the defendant has or should have knowledge of the threat of deportation based on the plea. As explained below, in order for a defendant to establish a prima facie case for relief, the defendant must be threatened with deportation resulting from the plea. Since the day the defendant gains (or should gain) knowledge of the threat of deportation is the first day the defendant can actually articulate a prima facie case, it stands to reason that the day the defendant learns of the threat should likewise start the running of the two-year limitation period.

Peart, 756 So.2d at 46 (citation omitted).

We agree with the trial court’s determination that, under Peart, the motion to vacate was timely filed. Lindo testified that he first gained knowledge of the threat of deportation when he received the notice to appear from INS on June 7, 2001. The State failed to present any evidence that Lindo was aware or should have been aware of the threat of deportation prior to that time. Thus, we find the motion to vacate filed pursuant to rule 3.850 was timely because it was filed within two years of June 7, 2001. See also Ghanavati v. State, 820 So.2d 989 (Fla. 4th DCA 2002)(finding that the motion filed on September 10, 2001, to vacate a plea entered on February 9, 1987, was timely because it was filed within two years of when the petitioner learned of the threat of deportation).

We also agree that Lindo was entitled to relief under rule 3.172(c)(8). In order to be entitled to relief under this rule, the defendant must prove that “the trial court did not provide advice regarding the possible immigration consequences of the plea and resultant prejudice.” Peart, 756 So.2d at 47. Lindo testified that he was never provided advice by the court or his attorney and that he was prejudiced by that lack of advice because he now faces deportation.

Accordingly, we affirm the decision of the trial court.

TAYLOR and MAY, JJ., concur.

      . The standard set forth by the Florida Supreme Court in Peart that "the limitation period runs from when the defendant has or should have knowledge of the threat of deportation based on the plea” dispels the need to further address a laches argument in this context. 756 So.2d at 46. A finding of laches in a criminal case requires a showing of both lack of due diligence on the part of the defendant in bringing the claim and prejudice to the state. See Love v. State, 814 So.2d 475, 478 (Fla. 4th DCA 2002). The State cannot prove that the defendant did not exercise due diligence in bringing the motion to vacate where defendant has shown that the motion was brought within two years of the time he had or should have had knowledge of the threat of deportation based on the plea.


author: MAY, J.

text:
    Marlene ISASI, Appellant, v. AMERICAN COLONIAL INSURANCE COMPANY, Appellee.
    No. 4D03-15.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Rehearing Denied Feb. 10, 2004.
    Carlos Lidsky of Lidsky, Vaccaro & Montes, Hialeah, for appellant.

      Robert L. Teitler and Thomas J. Caldwell of Walton, Lantaff, Schroeder & Carson LLP, Miami, for appellee.
   MAY, J.

The proper method by which to enforce an insurance carrier’s obligation to pay interest on unearned premiums, pursuant to section 627.7283, Florida Statutes (1999), is challenged in this appeal. The plaintiff sued the carrier for interest on her unearned premium when the carrier failed to pay her within the 30-day grace period. The carrier claimed that the trial court lacked jurisdiction to consider the case because the insured failed to serve notice on the Department of Insurance 60 days before filing suit, as required by section 624.155, Florida Statutes (1999). The trial court entered summary judgment for the carrier. The plaintiff appeals. We reverse.

The plaintiff purchased auto insurance from American Colonial Insurance Company. Subsequently, the carrier sent a notice of cancellation, effective July 26, 1999. On January 20, 2000, nearly six months later, the carrier issued an unearned premium refund to the plaintiff, but did not include interest.

The plaintiff filed a putative class action alleging a common law claim for interest on the unearned premium. The carrier moved for summary judgment on the ground that section 627.7283, Florida Statutes (1999), requires a claim for unearned interest to be filed, pursuant to section 624.155, Florida Statutes (1999). Under that section, the claimant must notify the Department of Insurance 60 days prior to filing suit. The carrier argued that the plaintiffs failure to comply with this condition precedent warranted entry of a summary judgment in its favor. Relying on Stinson v. United Auto. Insurance Co., 734 So.2d 505 (Fla. 3d DCA 1999), as it was bound to do, the trial court entered summary judgment for the carrier.

Section 627.7283(1) provides:

If the insured or insurer cancels a policy of motor vehicle insurance, the insurer must return the unearned portion of any premium paid within 30 days after issuance or receipt by the insurer of notice of cancellation. If the unearned premium is not returned within the 30-day period, the insurer must pay 8 percent interest on the amount due. If the unearned premium is not returned within 45 days after receipt of the notice, the insured may bring an action against the insurer pursuant to s. 624.155.

§ 627.7283(1), Fla. Stat. (1999).

The plaintiff argues that section 624.155 is not the only theory under which an insured can seek interest on an unearned premium, and that section 627.7283 did not abrogate the common law claim for payment of interest on monies owed. The carrier responds that section 627.7283 does limit the theory by which an insured may seek recovery of this interest and that is by filing a claim under the bad faith statute, section 624.155, Florida Statutes (1999). Each side argues that this court’s recent opinion in Parsons v. Harbor Specialty Insurance Co., 839 So.2d 742 (Fla. 4th DCA 2003), controls the outcome.

The answer lies in a plain reading of the applicable statutes. Section 627.7283 specifically provides that the insured “may bring an action against the insurer pursuant to s. 624.155.” (emphasis added.) It does not use the word “shall.” It does not express a specific intent to abrogate the common law.

Long-standing rules of statutory construction require we give the language employed by statutes its plain and ordinary meaning. Green v. State, 604 So.2d 471 (Fla.1992). In doing so, we hold that section 627.7283 “permits” an insured to pursue a claim for interest on an unearned premium under section 624.155, but it does not prohibit pursuit of the claim under common law.

Not only does section 627.7283 not mandate a single theory for recouping interest, its reference to section 624.155 bolsters our holding. Section 624.155 specifically provides that the civil remedy it authorized did not “preempt any other remedy or cause of action provided for ... pursuant to the common law of this State.” See § 624.155(7), Fla. Stat. (1999). In this case, the plaintiff did not allege a claim pursuant to section 624.155, but instead relied upon the common law theory that a person to whom a debt is owed is entitled to interest. Chelsea Title & Guar. Co. v. Turner, 389 So.2d 691 (Fla. 4th DCA 1980).

Even though the theory for pursuing interest on an unearned premium may be through either section 624.155 or the common law, section 627.7283 still defines the recovery allowable. As we stated in Parsons, section 627.7283 “does not abolish an insured’s right to sue for interest on an unearned premium if not refunded within thirty (30) days.” 839 So.2d at 743. Rather, “[t]he statute imposes a reasonable restriction on the filing of a claim for interest.” Id.

We note that this opinion appears to conflict with the opinion of the third district in Stinson v. United Automobile Insurance Co., 734 So.2d 505 (Fla. 3d DCA 1999). We are unable to discern from that opinion whether the claim for interest on the unearned premium was sought through section 624.155 or the common law. Thus, we decline to certify conflict.

Based on the foregoing, we reverse the summary judgment and remand the case to the trial court. This remand is without prejudice to the carrier’s remaining defenses.

FARMER, C.J., and GUNTHER J., concur.

      . Parsons does not answer the question because we were not asked to address that issue.


author: THOMPSON, J.

text:
    John Q. GIDDENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2349.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.

      James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

John Q. Giddens appeals his conviction for failure to report a change in address pursuant to the sexual offender registration requirements. We reverse the conviction and remand.

On 21 December 1995, Giddens pleaded guilty in Tennessee to one count of attempted aggravated sexual battery. He was given a suspended six-year sentence, and was placed on probation for six years. In March 2000, Giddens registered as a sexual offender in Florida. He obtained a Florida identification card as required by section 943.0435(3)(a), Florida Statutes, but failed to check the box on his application that would have indicated that he was a sexual offender. However, in December 2000, Giddens completed an application for a duplicate Florida identification card and indicated that he was a sexual offender.

Subsequently, Giddens was arrested for failure to report his address change as required by section 943.0435(4), Florida Statutes. Several court-ordered mental evaluations were conducted on Giddens to determine his competency. One of the appointed psychologists, Dr. Patrick Ward, found that Giddens had an I.Q. of 66 and was functionally illiterate.

Giddens pleaded no contest to failing to report his change of address and to violating the terms of probation imposed for prior Florida crimes. Giddens preserved for appeal the issue whether the crime of failure to register a change of address has a knowledge element. The court adjudicated Giddens guilty, concluding that the crime was one of strict liability:

And I want to state for the record, if it does go, that I do find that he has a mental disability and that I do not believe that he intentionally failed to register and this is not a guilty plea, this is a no contest plea because he wants to get out of jail. And I’m saying this for the benefit of the judge who does review this if it comes to that.
And, I don’t believe that this defendant intentionally violated that law because of his lack of mental ability to understand the requirements of filing.

In Giorgetti v. State, 821 So.2d 417 (Fla. 4th DCA 2002), rev. granted, 837 So.2d 412 (Fla.2003), the district court held that the trial court erred in giving a special jury instruction absolving the state of the burden to prove guilty knowledge, scienter, or mens rea in a prosecution for violating sexual offender registration requirements. Id. at 422. The Fourth District pointed out that in Chicone v. State, 684 So.2d 736 (Fla.1996), the supreme court stated that courts should not interpret a statute defining a felony offense to dispense with mens rea. Id. The Fourth District concluded that despite the legislature’s failure to include an intent requirement in the statutory text, case law required courts to read a “broadly applicable” intent requirement into the state’s burden of proof. Id. The court certified the following question to the Florida Supreme Court:

Does Chicone [v. State, 684 So.2d 736 (Fla.1996) ] apply to the crime created by the sexual offender registration statutes and thus compel the court to presume a scienter or mens rea requirement even though the statutory text fails to contain an explicit requirement of such guilty knowledge?

We agree with the reasoning in Giorget-ti and conclude that section 943.0435(4) includes a knowledge element. Accordingly, the trial court erred in ruling otherwise. Because our conclusion is dispositive of this appeal, we will not address the other issues that Giddens raises. However, we note that this court has previously held that sexual offender registration requirements do not violate the ex post facto clause or procedural due process. See Johnson v. State, 795 So.2d 82 (Fla. 5th DCA 2000); see also Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (holding that retroactive application of Alaska’s sexual predator registration requirements did not violate the ex post facto clause); see also Connecticut Dep’t of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) (holding that due process clause does not entitle sexual offenders to a hearing to determine if they are currently dangerous).

We certify the question certified in Gior-getti to the Florida Supreme Court.

REVERSED and REMANDED FOR FURTHER PROCEEDINGS.

PLEUS and TORPY, JJ., concur.

      . Section 943.0435(4), Florida Statutes, requires:
      Each time a sexual offender's driver's license or identification card is subject to renewal, and within 48 hours after any change in the offender's permanent or temporary residence or change in the offender’s name by reason of marriage or other legal process, the offender shall report in person to a driver’s license office, and shall be subject to the requirements specified in subsection (3)....

      . Section 943.0435(9), Florida Statutes, states:
      A sexual offender who does not comply with the requirements of this section commits a felony of the third degree....


author: SAWAYA, C.J.

text:
    Martin Clyde CORLEY and Dianna Skaggs Corley, Appellants/Cross-Appellees, v. RIVERTOWN, INC., Appellee/Cross-Appellant.
    No. 5D02-3302.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.

      Howard L. Cauvel of Rano, Cauvel & Ceely, P.A., DeLand, for Appellants/ Cross-Appellees.
    Robert R. Foster, DeLand, for Appel-lee/Cross-Appellant.
   SAWAYA, C.J.

Martin Clyde Corley and Dianna Skaggs Corley appeal, and Rivertown, Inc., cross-appeals, the trial court’s orders denying their respective motions for attorney’s fees in a construction lien foreclosure action. We reverse the order denying Rivertown’s motion and remand this case to the trial court to determine a reasonable amount to be awarded to Rivertown. We affirm the order denying fees to the Corleys.

The Corleys entered into a contract with Rivertown for construction of a residence. The two parties conducted a final walk-through of the residence, during which the Corleys annotated deficiencies in the construction. Even though Rivertown agreed to make the necessary repairs, the Corleys terminated Rivertown’s employment. Riv-ertown responded by initiating a Claim of Lien in the amount of $12,091.50, which was the remaining unpaid amount of the original contract.

Rivertown subsequently filed a complaint that contained a count to enforce and foreclose the claim of lien. The Cor-leys filed a counterclaim for breach of contract seeking damages for Rivertown’s failure to complete construction within the prescribed time limit, for Rivertown’s alleged failure to correct the punch list items, and for Rivertown’s alleged improper construction.

The court entered a judgment and lien for Rivertown on its complaint and ruled in favor of Rivertown on the Corley’s breach of contract counterclaim. The trial court held that Rivertown shall have a lien of $2,563.77, which amount was determined after deducting $9,527.73 for credits due the Corleys. The judgment further provided that

[i]f the total sum of $2,563.77, with interest at the rate of nine (9%) percent per annum, is not paid to the Plaintiff within 45 days of the date of this judgment, on affidavit of non-payment by the Plaintiff, the Clerk of this Court shall issue a Notice of Sale for the sale of the above described property at public sale to the highest bidder in accordance with the Judicial Sales Procedure, Section 45.031, Florida Statutes.

Moreover, each party was ordered to pay its own attorney’s fees.

The statutory basis for an award of attorney’s fees in the instant case derives from section 713.29, Florida Statutes (1999), which provides:

In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party’s costs, as allowed in equitable actions.

This court has held that “[t]his statute is mandatory and requires the trial court to award attorney’s fees to the prevailing party.” Heidle v. S & S Drywall & Tile, Inc., 639 So.2d 1105 (Fla. 5th DCA 1994) (citing Sanfilippo v. Larry Giacin Tile Co., Inc., 390 So.2d 413 (Fla. 4th DCA 1980)); see also CDI Contractors, LLC. v. Allbrite Elec. Contractors, Inc., 836 So.2d 1031, 1033 (Fla. 5th DCA 2002) (“A party is entitled to recover fees pursuant to section 713.29 if successful in prosecuting or defending a mechanic’s lien cause of action.”); DCC Constructors, Inc. v. Yacht Club Southeastern, Inc., 839 So.2d 731 (Fla. 3d DCA 2003); Hollub Constr. Co. v. Narula, 704 So.2d 689 (Fla. 3d DCA 1997). We are bound by the decisions of this court.

The test to determine the prevailing party provides that the party that prevailed on the significant issues tried before the court is the prevailing party entitled to an award of attorney’s fees. Prosperi v.Code, Inc., 626 So.2d 1360, 1363 (Fla.1993); Moritz v. Hoyt Enters., 604 So.2d 807 (Fla.1992). In the instant case, Rivertown filed suit to enforce a construction lien against the Corleys for failure to pay the final amount due.on the construction contract. It is clear from the record that the construction lien was the significant issue tried before the trial court. It is equally clear that Rivertown prevailed on the significant issue when the court entered a final judgment and lien in favor of Rivertown. Because the trial court also held for Rivertown. on the Corleys’ counterclaim, there can be no question but that Rivertown was the prevailing party overall.

We thus reverse the order denying fees to Rivertown and remand this case to the trial court to determine the amount of fees to be awarded to Rivertown. See Ken-mark Constr., Inc. v. Cronin, 765 So.2d 129 (Fla. 2d DCA 2000); Heidle.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

SHARP, W. and PALMER, JJ., concur.

      . This is not a case where the net judgment rule is applicable. That rule "applies when a contractor does not recover pursuant to a lien but obtains a net judgment, in the same action, for damages under other principles of contract or equity.” CDI Contractors, LLC. v. Allbrite Elec. Contractors, Inc., 836 So.2d 1031, 1033 n. 2 (Fla. 5th DCA 2002) (citing Kenmark Constr., Inc. v. Cronin, 765 So.2d 129, 130, n. 1 (Fla. 2d DCA 2000)).


author: PETERSON, J.

text:
    Robert BALLARD, Appellant, v. Kenneth WOOD, etc., et al, Appellee.
    No. 5D02-3368.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.

      Charles D. Waller, Dade City, for Appellant.
    Nathaniel B. Kidder, St. Petersburg, for Appellee.
   PETERSON, J.

Robert Ballard appeals a final judgment for damages against him in favor of Kenneth Wood, etc., et al (“Wood”).

This litigation began when Wood filed a declaratory judgment to determine a dispute over the ownership of a John Deere tractor. Wood amended the original complaint multiple times to add Ballard’s daughter, Theresa, as a co-defendant and to add counts for conversion, civil theft and replevin of the tractor and other farm equipment.

During the course of the litigation, Ballard’s attorney filed a motion to stay the proceedings alleging:' “The Defendant, Robert Ballard, had open heart surgery, in Houston, Texas, on February 14, 2002. During surgery he sustained a massive stroke and is in critical condition. Due to the foregoing the Defendant is unable to proceed at this time.” On March 8, 2002, the trial court denied Ballard’s motion and also ordered the release of the John Deere tractor to Wood upon proof of posting a $10,000.00 bond. On March 20, 2002, Ballard’s attorney filed a motion for the appointment of a guardian ad litem for Ballard because he “cannot speak or otherwise communicate. He is paralyzed on his entire right side and is presently on life support.” On March 21, 2002, Ballard’s attorney filed a letter of incapacitation from Kindred Hospital Bay Area Tampa supporting the earlier motion for the appointment of a guardian ad litem. The letter, on hospital letterhead, read:

Date of Admission: March 2, 2002
The patient [Ballard] is a patient at Kindred Hospital, on life support. The patient is critically ill. He also suffered a stroke and at this time the patient is incapable of making any decisions. He is not competent to make any decisions at this time.
Again, [t]he patient is critically ill, status post cerebrovascular accident and has not been able to make any decisions since he has been at Kindred Hospital. I do not see him improving substantially in the near future and that is at least for the next few months.
/s/Ashok K. Modh, M.D.

It does not appear that Ballard’s motion was ever scheduled for hearing, heard or acted upon. We surmise that the reason for this was that settlement negotiations between Theresa and Wood seemed successful, but ultimately failed, and because Ballard’s attorney moved to withdraw due to irreconcilable differences with his client. The trial court granted Ballard’s attorney’s motion to withdraw just seven days later, and sent a copy of the order to Ballard’s home address. The record does not reflect where Ballard was located or his condition after the March 21, 2002 letter from his physician was filed, which indicated that it was impossible to communicate with Ballard because of his medical condition. Thereafter, the litigation proceeded without Ballard’s presence, although it seems inescapable that his incapacity was known by the court, Wood and Wood’s attorney. Additionally, the trial court dismissed Theresa Wood from the action just prior to an unopposed bench trial that resulted in treble damages against Ballard. It was after that judgment was entered that Ballard’s attorney, who was also Theresa’s attorney prior to her dismissal, made an appearance and filed a notice- of appeal on behalf of Ballard.

Ballard now contends that at the time of the trial he was incompetent and incapacitated, and that his incompetence and incapacitation was known to the trial court. Further, Ballard contends that despite a denied motion to stay the proceedings and an unheard motion for appointment of a guardian ad litem, Wood had a duty to file a suggestion of incompetency with the trial court. Wood, on the other hand, submits that the co-defendant, Theresa Ballard, should have filed a sug-gestión of incompetence prior to trial. Of course, the filing of a suggestion of incompetency by either of them would have been superfluous because Ballard’s attorney had informed everyone of his client’s condition in his subsequent motion to stay and for appointment of a guardian ad li-tem, both of which were either denied or ignored.

Florida Rule of Civil Procedure 1.260(b) provides:

(b) Incompetency. If a party becomes incompetent, the court, upon motion served as provided in subdivision (a) of this rule, may allow the action to be continued by or against that person’s representative.

Rule 1.260(a) to which Rule 1260(b) refers, states:

(a) Death
(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon record by service of a statement of the fact of the death in a manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

Apparently, the committee drafting rule 1.260(b) did not feel that a separate section was necessary in order to detail the procedure to follow in the event of the incompetency of a defendant and directed that the procedure described in rule 1.260(b), applicable to a death of a party, would also be used when a party becomes incompetent. One complex aspect of the rule is the sanction when no substitution is made for a party so that a successor or representative can carry on with the litigation. The sanction is the dismissal of a deceased party. That sanction may be logical when the incompetent is the plaintiff, but it places the plaintiff in a quandary when the defendant becomes incompetent. If no substitution is made within ninety days by a person acting on behalf of a defendant, the burden falls upon the plaintiff to evaluate the benefits of proceeding with the litigation and then determine whether to initiate estate or guardianship proceedings.

In Cope v. Waugh, 627 So.2d 136 (Fla. 1st DCA 1993), the plaintiff filed a suggestion of the defendant’s death pursuant to rule 1.260(a)(1) and requested the trial court to order a substitution of the defendant’s estate. Instead of ruling on the request, the trial court allowed the defendant’s attorney to continue to defend against the plaintiffs claim. The defense was successful and a judgment was entered against the plaintiff. The first district reversed and found that the action should have been abated until the defendant’s estate had been substituted.

Although Ballard’s attorney did not cite rule 1.260 in his motions to stay the proceedings and for appointment of a guardian ad litem, the content of the motions adequately apprised the court and other parties of Ballard’s incompetency and the motions should have been treated as a suggestion of incompetency. When the trial court became aware of Ballard’s incompetency the action should have been abated pursuant to rule 1.260(a)(1) until a guardian had been substituted for Ballard even if Wood had to initiate those proceedings. The failure to do so nullified subsequent proceedings.

Review of the record also reveals that although Ballard answered the initial complaint against him, the trial appears to have been conducted on the allegations contained in a second amended complaint. The record does not contain an order allowing this amendment and Ballard has never made a response to this version of the complaint.

We vacate the judgment and remand to the trial court for further proceedings to include the appointment of an attorney ad litem for Ballard to investigate Ballard’s location and competence if either Ballard or counsel for him fails to make an appearance. If Ballard is in the condition described in the physician’s report, the action should be dismissed as to him in accordance with rule 1.260(a)(1) unless a successor or personal representative makes an appearance on his behalf within the period prescribed by rule 1.260(a)(1).

REVERSED and REMANDED.

SHARP, W., and TORPY, JJ., concur.

      . The motion to withdraw did not include Ballard's address or indicate that it was served upon him as required by Florida Rule of Judicial Administration 2.060(1).