author: STONE, J.

text:
    FOUR JAY’S CONSTRUCTION, INC., a Florida Corporation, Appellant, v. The MARINA AT THE BLUFFS CONDOMINIUM ASSOCIATION, INC., a Florida Non Profit corporation, as Agent for and as Class Representative of all Owners of Record of all individual condominium parcels within the Marina at the Bluffs Building 14 Condominium, the Marina at the Bluffs Building 15 Condominium and the Marina at the Bluffs 7 Condominium, Appellee.
    No. 4D01-4348.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Rehearing Denied June 11, 2003.

      Barbara J. Scheffer, Palm Beach Gardens, for appellant.
    Michael J. Gelfand and Christopher J. Schuster of Gelfand & Arpe, P.A., West Palm Beach, for appellee.
   STONE, J.

We reverse a final judgment that dismisses with prejudice all claims against the owners of record of all individual condominium units within three condominium buildings.

Four Jay’s Construction, Inc. (Four Jay’s) sued The Marina at the Bluffs Condominium Association, Inc. (association) as agent for, and as class representative of, all owners of record of all individual condominium parcels within The Marina at the Bluffs Building 14 Condominium, The Marina at the Bluffs Building 15 Condominium, and The Marina at the Bluffs Building 7 Condominium. The amended complaint was brought as a class action, pursuant to Florida Rule of Civil Procedure 1.221, with the association named as the class representative of each building’s unit owners.

Four Jay’s seeks damages for the association’s alleged breach of a construction contract. Pursuant to the contract, Four Jay’s installed balcony additions to all of the buildings, benefitting all of the units in question. The amended complaint asserts breach of contract, quantum meruit, unjust enrichment, breach of oral contract, and promissory estoppel.

In dismissing the amended complaint, the trial court concluded that the individual unit owners could not be joined as a class.

We conclude it was error to dismiss the class action as the unit owners may be sued, pursuant to the rule, with the association as representative.

Prior to the amendment to the Condominium Act in 1974, class actions brought by an association were routinely dismissed on the ground that the association lacked standing since it was not a real party in interest. Imperial Towers Condo., Inc. v. Brown, 338 So.2d 1081, 1083 (Fla. 4th DCA 1976). The remedy in those situations, where a condominium association filed suit incorrectly in a representative capacity, was either to amend the complaint or add the appropriate parties as plaintiffs. Rubenstein v. Burleigh House, Inc., 305 So.2d 311, 313 (Fla. 3d DCA 1975). Although the amendment of that statute was later declared unconstitutional, the supreme court eventually adopted Fla. R. Civ. P. 1.220(b), now numbered 1.221, which is currently in effect. This rule allows class actions to be brought or defended by a condominium association in its representative capacity, but is not clear as to the right of a third party to institute a class action against unit owners.

Rule 1.221 provides that a condominium association

may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all unit owners concerning matters of common interest, including, but not limited to, the common elements; the roof and structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving an improvement or a building; representations of the developer pertaining to any existing or proposed commonly used facilities; and protesting ad valo-rem taxes on commonly used facilities. If the association has the authority to maintain a class action under this rule, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action under this rule.

This court has recognized that an association may sue and be sued as the representative of condominium unit owners in an action to resolve a controversy of common interest to all units. Kesl, Inc. v. Racquet Club of Deer Creek II Condo., Inc., 574 So.2d 251 (Fla. 4th DCA 1991); Juno by the Sea Condo. Apts., Inc. v. Juno by the Sea N. Condo. Ass’n, 418 So.2d 1190 (Fla. 4th DCA 1982). In Kesl, the owner of the Racquet Club filed suit against the condominium association alleging that the association was obligated to collect club membership dues from the unit owners under the terms of a “Club Membership Agreement.” Id. at 252. Kesl sought to amend the complaint by joining the unit owners as a class under Florida Rule of Civil Procedure 1.221 and naming the association both in its capacity as contracting party and as the class representative of the unit owners. On appeal, this court recognized that the individual unit owners could be joined as a class and the association could be sued both in its capacity as a contracting party and as the representative of the unit owners where the controversy was of common interest to all units. Id. at 253.

Here, as in Kesl, the association was sued as representative of the individual unit owners as a class under rule 1.221. As in Kesl, this was appropriate where the controversy was of common interest to all units, i.e., structural improvements to the common elements including balcony additions appurtenant to each unit.

We have considered Cooley v. Pheasant Run at Rosemont Condo. Ass’n, Inc., 781 So.2d 1182 (Fla. 5th DCA 2001), and deem it inapposite. In Cooley, the plaintiff sought damages for an injury while an invited guest upon the common elements of the condominium. In addition to the association, he joined the unit owners individually. Id. at 1183. In affirming the trial court’s decision to dismiss the owners with prejudice, the Fifth District interpreted section 718.119, a limitation of liability provision, to mean that a tort action could not be maintained against the unit owners as a class, but could only be maintained against the corporate defendant. Id.

Section 718.119, Florida Statutes, provides:

(1) The liability of the owner of a unit for common expenses is limited to the amounts for which he or she is assessed for common expenses from time to time in accordance with this chapter, the declaration, and by laws.
(2) The owner of a unit may be personally liable for the acts or omissions of the association in relation to the use of the common elements, but only to the extent of his or her pro rata share of that liability in the same percentage as his or her interest in the common elements, and then in no case shall that liability exceed the value of his or her unit.
(3) In any legal action in which the association may be exposed to liability in excess of insurance coverage protecting it and the unit owners, the association shall give notice of the exposure within a reasonable time to all unit owners, and they shall have the right to intervene and defend.

The Fifth District recognized that paragraph two of the statute seemed to favor the argument that individual unit owners could be joined as defendants. Cooley, 781 So.2d at 1184. However, the court recognized that paragraph three acknowledged that the association is the proper party defendant in the action. Id. The statute gives the unit owners the right, but not the obligation, to intervene and defend. Id. Thus, participation of the unit owners in the suit is a matter of their discretion and not at the option of the plaintiff. Id. The court summarized,

The entire structure of section 718.119 points to the fact that this subsection deals with the liability of unit owners for “common expenses” which may be assessed (subsection (1)) and the liability of unit owners for acts or omissions of the association for which proportionate damages may be assessed against the unit owner (subsection (2)). The correct interpretation of subsection (2), cited above, is that the only liability of the unit owner is for assessments, and those assessments allow individual unit owners to be personally liable for an additional assessment by the association in relation to the use of the common elements. This interpretation comports with the holding in Graves v. Ciega Verde Condo. Ass’n, Inc., 703 So.2d 1109, 1111 (Fla. 2d DCA 1997), wherein it was held that a condominium association is appropriately sued as a class when the issues involve the common elements on the condominium property. Clearly, the condominium association is a unique entity formed and operated to advance the common interests of the unit owners and is a proper class representative. (citation omitted).

Id. at 1184. The court acknowledged that the unit owners were a class of defendants under rule 1.221 and that the condominium association is a unique entity formed and operated to advance the common interests of the unit owners and is a proper class representative. Id. at 1184. The court concluded that it was therefore unnecessary and, under section 718.119, improper to join the unit owners as defendants. Id.

In Cooley, the individual unit owners were individually joined as defendants, whereas here, the action was not against the owners but against the association as representative of the class of units sharing the undivided ownership of the common elements. See also Graves, 703 So.2d at 1111 (holding that suit against the unit owners as a class with the association as representative was appropriate in an action by a contractor to foreclose a lien for work on the common areas of condominium); Kesl, 574 So.2d at 253 (holding that it is appropriate to sue association as representative of the condominium unit owners in action to resolve controversy of common interest to all units). Here, also, as the alleged controversy concerns matter of common interest involving common elements, it was proper to sue the unit owners as a class, naming the association in its representative capacity.

The association’s argument, based on language found in Kesl, is that the unit owners could not be joined as a defendant class because the suit seeks a money judgment. We note however, that here, Four Jay’s does not seek individual money judgments against the owners, but instead against the association as representative of the owners. To the extent that the complaint might be interpreted by the trial court as seeking a money judgment against the individual unit owners, leave to amend should be granted so that Four Jay’s can clarify the remedy sought.

We do not deem this opinion in conflict with Cooley, a tort suit. On the other hand, we recognize that rule 1.221 and chapter 718 do not explicitly specify that unit owners may be collectively joined “as a class” by a stranger/plaintiff by serving the association, notwithstanding that, clearly, the association itself is a proper defendant.

We certify the following question to the supreme court as one of great public importance:

WHETHER FLORIDA RULE OF CIVIL PROCEDURE 1.221 AUTHORIZES PLAINTIFFS TO SUE INDIVIDUAL OWNERS OF CONDOMINIUM UNITS (TO THE EXTENT OF THEIR INTEREST) AS A CLASS OF DEFENDANTS, BY SUING THE CONDOMINIUM ASSOCIATION AS CLASS REPRESENTATIVE, AS DISTINGUISHED FROM SIMPLY SUING THE CONDOMINIUM ASSOCIATION AS THE CONTRACTING PARTY, IN A CONTROVERSY CONCERNING MATTERS OF COMMON INTEREST.

GUNTHER and FARMER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael A. MITCHELL, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D01-3912, 4D01-4715.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Rehearing Denied June 9, 2003.

      Carey Haughwout, Public Defender, Sophia Letts and Tara A. Finnigan, Assistant Public Defenders, and Michael A. Mitchell, DeFuniak Springs, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and, August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant filed a motion for post-conviction relief, asserting ineffective assistance of counsel. He subsequently dismissed and refiled the motion to include a claim for resentencing pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). The trial court first ruled on the resentencing issue, granting the motion in part, and then re-sentencing Appellant as to one of his three counts.

While Appellant’s direct appeal of the new sentence was pending in this court, the trial court considered and ruled on the first two grounds of the post-conviction motion, which challenged the original conviction, summarily denying them on the merits. The order denying these two remaining grounds was also appealed and the two appeals were consolidated. As for the appeal from the rule 3.850 denial, we affirm in part and reverse in part.

Appellant first argues that the trial court lacked jurisdiction to rule on the first two grounds of his rule 3.850 motion while the appeal from his resentencing was pending in this court. Generally, a trial court lacks jurisdiction to rule on a post-conviction motion while the same defendant’s direct appeal is pending. See, e.g., Wilcher v. State, 805 So.2d 74 (Fla. 4th DCA), receded from in part by Perez v. State, 834 So.2d 882 (Fla. 4th DCA 2002). Here, however, the direct appeal did not pertain to his original judgment and sentence, but - only to the new sentence imposed while the rule 3.850 motion was pending. The two grounds subsequently ruled on involved an entirely separate matter: whether Appellant was entitled to a new trial due to ineffective assistance of counsel.

We conclude that the trial court had jurisdiction because the issues were entirely unrelated. See generally Francois v. Klein, 431 So.2d 165 (Fla.1983)(explaining that a rule 3.850 motion could be considered by the trial court while a petition for writ of habeas corpus as to the same case was pending in the appellate court); Keel v. State, 740 So.2d 4 (Fla. 1st DCA 1999)(holding that a court can rule on a rule 3.850 motion when an appeal is pending from the denial of an unrelated rule 3.800(a) motion); Clark v. State, 720 So.2d 1097 (Fla. 2d DCA 1998)(holding trial court could consider merits of rule 3.850 motion, raising ineffective assistance of counsel claims, while appeal of sexual predator designation was pending). We note that if the trial court had denied resen-tencing, it could have ruled on a post-conviction motion while an appeal from the denial of resentencing was pending. See Keel. There is no reason for a different result, here, where the court granted re-sentencing.

Addressing the merits, we reverse the summary denial of the rule 3.850 motion as to the second ground and the second of three parts of Appellant’s first ground for relief. In the second part of the first ground, Appellant alleged that his trial counsel was ineffective for failing to bring specific matters of juror misconduct to the trial court’s attention, which he alleged his relatives brought promptly to defense counsel’s attention during the trial. The trial court accepted the state attorney’s argument that the issue should have been raised on direct appeal, but nothing is attached to the order to indicate that there was anything in the record which might have alerted appellate counsel to such an issue. The ground is legally sufficient. See McGraw v. State, 796 So.2d 1205 (Fla. 4th DCA 2001); Thomas v. State, 700 So.2d 407, 408 (Fla. 4th DCA 1997).

Appellant’s second ground alleged that on the last day of his trial, August 7, 1997, the presiding judge instructed the bailiff to lock the courtroom doors, and, as a consequence, Appellant’s family and friends were told they could not attend. He argued, in the alternative, that closing the trial was fundamental error, citing Williams v. State, 736 So.2d 699 (Fla. 4th DCA 1999)(excluding public from part of trial reviewable on appeal despite lack of contemporaneous objection) and that his trial counsel was ineffective for failing to object, resulting in the issue not being preserved for appellate review. The trial court’s order accepted the state’s argument that this was an issue that could have been raised on direct appeal, citing Campbell-Eley v. State, 756 So.2d 1043 (Fla. 4th DCA 2000)(reversing conviction where judge required all persons to vacate the room). After the trial court’s ruling, this court receded from Williams and held, in Alvarez v. State, 827 So.2d 269, 276 (Fla. 4th DCA 2002), that the failure to object to the closure of a trial constitutes a waiver of the right to a public trial. Regardless of whether Alvarez may have any application to the instant case, which we do not decide here, nothing was attached to the order of denial to indicate that anything appeared in the record to alert appellate counsel of the existence of this issue.

Accordingly, we reverse the summary denial as to the second ground and the second part of the first ground and remand to the trial court, either for an evi-dentiary hearing or the attachment of record excerpts conclusively refuting these two grounds for relief. We affirm, without discussion, the summary denial of the balance of the motion.

Case no. 01-3912 is affirmed; case no. 01-4715 is affirmed in part, reversed in part, and remanded for further proceedings.

STONE, FARMER and MAY, JJ., concur.


author: WELLS, Judge.

text:
    Federico M. LLAMOSAS, Appellant/Cross-Appellee, v. Isabel LLAMOSAS, Appellee/Cross-Appellant.
    No. 3D02-2178.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Clarification Denied June 4, 2003.
    Bill Ullman, Miami, for appellant/cross-appellee.
    Geller, Geller, Shienvold, Fisher & Gar-finkel, and Peggy Fisher; Richard J. Burton, for appellee/cross-appellant.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   WELLS, Judge.

In this appeal from a final judgment of dissolution of marriage, the husband claims that the trial court erred in ordering the equitable distribution of a nonmari-tal asset; the wife argues that the trial court erred in failing to award permanent periodic alimony. We affirm in part, reverse in part, and remand for further proceedings.

First, we agree with the husband’s claim that the equitable distribution of a nonmarital asset cannot stand. By the trial court’s calculation, the husband had inherited some $1,094,500 in real estate from his parents. The sale of one of those properties had resulted in a $170,000 note. The final judgment of dissolution observed that the note was a nonmarital asset, but at the same time ordered that the note be assigned to the wife as equitable distribution.

In general, “[njonmarital assets may not be conveyed, absent agreement, to the non-owning spouse in equitable distribution.” Belmont v. Belmont, 761 So.2d 406, 408 (Fla. 2d DCA 2000); see Prest v. Tracy, 749 So.2d 538, 538 (Fla. 2d DCA 2000)(“In fashioning an equitable distribution scheme, the trial court is required to set apart to each spouse his or her non-marital assets and liabilities because those are not subject to equitable distribution.”); French v. French, 466 So.2d 1243, 1244 (Fla. 5th DCA 1985) (Cowart, J., dissenting)(“Equitable distribution is a doctrine relating to the division of marital property upon dissolution. There is no lawful doctrine for the division, on dissolution of marriage, of the separate property of one spouse. Any such “Robin Hood” doctrine would necessarily violate traditional, fundamental American concepts of private property rights”) See also § 61.075(1), Fla. Stat. (2002).

Our consideration of this matter does not end here, however. In attempting to support the lower court’s decision as regarding the note, the wife argues that the trial judge’s award should be viewed as “right for the wrong reason.” See Farrey’s Wholesale Hardware Co. v. Hobesound Industrial Park, Inc., 719 So.2d 374, 375 (Fla. 3d DCA 1998). She maintains that in reality the assignment of the note was a lump sum alimony award, needed for her support. See § 61.08(1), Fla. Stat. (2002)(observing that “[i]n any award of alimony, the court may order periodic payments or payments in lump sum or both.”) As stated in Gardner v. Gardner, 452 So.2d 981, 983 (Fla. 5th DCA 1984):

If the marital assets are insufficient after equitable distribution to provide a needy spouse with adequate resources and income, nonmarital assets may be drawn upon to provide alimony in the classic support sense.

While the instant record cannot unequivocally support such a right for the wrong reason analysis, there is at least some evidentiary basis for wife’s claim that the assignment of the note should be viewed as lump sum alimony. There was at least some testimony that the wife had been forced to rely on “castoffs from her church” and loans from fellow parishioners for her maintenance. Also, in ruling on the husband’s motion for rehearing, the trial judge’s observation as to the poor financial straits the wife would be left to maneuver absent the income from the note, demonstrates his contemplation of the wife’s need for some contribution to her support. The order on rehearing states:

On a net of about $1000. per month [wife’s income] the Wife can barely survive and most likely would have to sell the home in which the children have lived all of their lives. The $170,000. note when due will generate, in current conditions, net, after adjustment for taxes and inflation of about $4000. annually. This leaves the wife with a total net after tax income of about $16,000 per year and the marital residence which is debt free. If she chooses to spend the amount reflecting the impact of inflation on the $170,000. corpus, $170,000. will over time evaporate given her life expectancy.

On the other hand, the final judgment itself provides, in part:

At most, this is a nine-year marriage and thus was not of sufficient duration to warrant permanent alimony. Additionally, the need for alimony is relatively minimal and Isabel Llamosas has not presented a plan for rehabilitative alimony. Isabel Llamosas has not proven need for alimony and no alimony is awarded to Isabel Llamosas.

On such mixed observations and in light of our conclusion that, as a matter of law, the award of the note as equitable distribution cannot stand, there is simply no way to discern how the trial judge would view the parties’ financial positions absent the distribution of the note, and whether he would conclude that the wife was in need of some additional support.

As to the trial court’s observation that this nine year marriage was not of sufficient duration to warrant an award of permanent alimony, this is not the case. As we observed in Gallinar v. Gallinar, 763 So.2d 447, 449 (Fla. 3d DCA 2000), “the shortness of a marriage does not preclude an award of permanent alimony.” See Echols v. Elswick, 638 So.2d 581, 582 (Fla. 1st DCA 1994)(rejecting claim that “short” six year marriage required denial of permanent alimony).

Accordingly, we reverse that part of the final judgment ordering the assignment of the note. We remand for the trial judge to review the wife’s need for support and the husband’s ability to pay in light of this decision, taking additional evidence as he deems necessary. The balance of the order is affirmed.

      . Section 61.08, Florida Statutes (2002), provides:
      (2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
      (a) The standard of living established during the marriage.
      (b) The duration of the marriage.
      (c) The age and the physical and emotional condition of each party.
      (d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
      (e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
      (£) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
      (g) All sources of income available to either party.

      . The final judgment observed that the parties were married in 1982. Mr. Llamosas left the marital residence in 1989. In 1991 Mr. Lla-mosas obtained a divorce in the Dominican Republic. The final judgment also observed that the Dominican dissolution action would have "no effect on the property rights of Isabel Llamosas because the Dominican Republic court did not have in personam jurisdiction over Isabel Llamosas.”


text:
    Karen WILLIAMS, Appellant, v. FEDERATED NATIONAL INSURANCE COMPANY, Appellee.
    No. 4D02-884.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Rehearing Denied June 11, 2003.

      Sharon C. Degnan and Diane H. Tutt of Diane H. Tutt, P.A., Plantation, for appellant.
    Frank A. Zacherl and Colleen A. Hoey of Shutts & Bowen LLP, Miami, for appel-lee.
   PER CURIAM.

Affirmed. Parsons v. Harbor Specialty Ins. Co., 839 So.2d 742 (Fla. 4th DCA 2003).

STONE, WARNER, and STEVENSON, JJ., concur.


text:
    Pitston DESBONNES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-568.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Rehearing Denied June 9, 2003.
    Virginia Stow, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Desbonnes’ conviction and sentence on counts of lewd and lascivious battery and lewd and lascivious molestation. Desbonnes seeks a new trial on grounds that the lewd and lascivious molestation jury instruction was erroneous.

The record reflects evidence that the victim, E.B., was twelve years old and that Desbonnes was over eighteen years old. Two witnesses testified to the date of Des-bonnes’ birth and there was no contrary evidence.

The jury instruction challenged on appeal was:

Before you can find the defendant guilty of lewd or lascivious molestation, the State must prove the following two elements beyond a reasonable doubt.
1) [E.B.] was 12 years of age or older, but less than 16 years of age.
2) Pitston Desbonnes intentionally touched in a lewd or lascivious manner the breast or clothing covering them of [E.B.]
The punishment provided by law for lewd or lascivious molestation is greater depending upon the age of the defendant.
If you find the defendant guilty of lewd or lascivious molestation and further find that at the time of the lewd or lascivious molestation the defendant was 18 years of age or older, you should find him guilty of lewd or lascivious molestation by a person of 18 years or older.
If you find that the defendant is not 18 years or older, but did commit the lewd or lascivious molestation, you should find the defendant guilty of lewd or molestation of a person under 18 years.

The standard jury instruction, which the trial court tracked in giving this instruction, does not identify the age of the defendant as an element of the crime. Des-bonnes objected to the instruction given, arguing that age of the defendant was an element of the offense and that he did not want the jury to have an option of finding him guilty of the “lesser” offense of commission by a person under eighteen years. He also asserted that the state had failed to prove beyond a reasonable doubt that he was over 18 years old.

We affirm on the authority of Jesus v. State, 565 So.2d 1361 (Fla. 4th DCA 1990), where the structure and language of the statute in Jesus is eompellingly analogous to section 800.04(5) governing lewd or lascivious molestation. See also Toussaint v. State, 755 So.2d 170 (Fla. 4th DCA 2000). In Jesus, the defendant was convicted of capital sexual battery of a child under section 794.011, Florida Statutes. Section 794.011(l)(h) defines sexual battery. Section 794.011(2)(a) goes on to state that “[a] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss. 775.082 and 92.141.”

The defendant, in Jesus, argued that the state failed to present a sufficient corpus delicti in relying on his own statement to establish his age. The trial court ruled that the defendant’s age was not an element of the crime of sexual battery but was a factor to consider as part of the sentence of that crime. Id. This court affirmed. Id. at 1362.

As in both Jesus and Toussaint, the age of the defendant is not an element of the crime of lewd or lascivious molestation. Section 800.04(5), governing lewd or lascivious molestation, is structured similarly to section 794.011. Subsection (5)(a) provides the definition of lewd or lascivious molestation. Then subsection (c)2 provides that “[a]n offender 18 years of age or older who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age commits a felony of the second degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” The structure and language of the statute before us and the statute in Jesus, are virtually identical. Therefore, the jury was properly instructed, notwithstanding that the defendant’s age was not specified to be an “element” of the crime. But cf. D’Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999)(holding that age is an element of sexual battery); Baker v. State, 604 So.2d 1239, 1240 n. 3 (Fla. 3d DCA 1992)(disagreeing with Jesus and holding that age is an element of sexual battery).

Any error in the instruction in this case would be harmless in light of the uncontested evidence. See Glover v. State, 815 So.2d 698 (Fla. 5th DCA 2002)(holding that it was harmless error to fail to instruct that age was element of crime of sexual battery where jury was instructed that it must find defendant to be eighteen or older before it can convict).

We also reject Desbonnes’ argument that he is entitled to a new trial pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), or Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), where the Supreme Court recognized that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348. Desbonnes failed to raise any argument as to Apprendi at trial or in the motion for new trial. Failure to argue such grounds leaves the argument unpreserved for appeal. See Marshall v. State, 789 So.2d 969 (Fla.2001); Tillman v. State, 471 So.2d 32 (Fla.1985). In any event, even were the argument preserved, given the jury’s verdict, relief under Apprendi would not be warranted.

As to all other issues asserted, we also find no reversible error or abuse of discretion. We note conflict with Baker and D Ambrosio on the issue of whether a jury must be specifically advised that defendant’s age is an “element” of the offense.

WARNER and FARMER, JJ., concur.


text:
    Ronald KING, Appellant, v. FLORIDA PAROLE COMMISSION, Michael W. Moore, Secretary, Appellee.
    No. 3D02-2639.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Clarification and Rehearing Denied May 28, 2003.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Mark J. Hiers, Assistant General Counsel, for appellee.
    Before COPE, GREEN and FLETCHER, JJ.
   PER CURIAM.

As it appears the identical issue was decided in King v. Moore, 818 So.2d 518 (Fla. 3d DCA 2002) (table), the order now before us is affirmed. See Faverbo v. Cochran, 128 So.2d 884 (Fla.1961).

Affirmed.


text:
    Susan MINUCCI and Natale Minucci, her husband, Appellants, v. UNITED PARCEL SERVICE, INC., Appellee.
    No. 4D02-1683.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Rehearing Denied June 19, 2003.
    Robert C. Rogers, Jr., of Bohannon, Rogers & Aronson, Fort Lauderdale, for appellants.
    Lucinda A. Hofmann and Cathy A. Williams of Holland & Knight LLP, Miami, for appellee.
   PER CURIAM.

Affirmed. See Davis v. Sun First National Bank, 408 So.2d 608 (Fla. 5th DCA 1981).

POLEN, C.J., KLEIN and GROSS, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Maria BARNES, Appellant, v. THE KELLOGG COMPANY, a Michigan Corporation, and Albertson’s, Inc., a Delaware Corporation, Appellees.
    No. 2D01-3775.
    District Court of Appeal of Florida, Second District.
    April 25, 2003.

      Scot E. Samis of Abbey, Adams, Byel-ick, Kieran, Mueller & Lancaster, L.L.P., St. Petersburg (withdrew after briefing), for Appellant.
    Maria Barnes, pro se.
    J. Gregory Giannuzzi of Rissman, Weis-berg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellees.
   ALTENBERND, Chief Judge.

Maria Barnes appeals a judgment awarding attorneys’ fees to The Kellogg Company and Albertson’s, Inc., based on a proposal for settlement filed pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (1999). Ms. Barnes argues that the proposal was defective and will not support an award of fees because the two defendants made a unified offer to her, which prevented her from accepting the offer from one defendant or the other. We conclude that a unified offer was permissible under the facts of this case. Ms. Barnes sustained damages that could not be apportioned between the two defendants. Moreover, one defendant, the retailer, was strictly liable for the alleged latent manufacturing error of the other. In this situation, it is permissible for the defendants to propose a joint settlement, the terms of which contemplate a settlement with both.

In August 1997, Ms. Barnes filed a lawsuit against Kellogg and Albertson’s alleging that she had suffered physical and psychological injuries because she inadvertently ate a bowl of cereal in September 1995 containing live insects. The complaint contained three counts. She sued both Kellogg and Albertson’s for strict liability, alleging that the cereal was unfit for human consumption and that it was in the same condition when she ate it that it had been in when it left Kellogg, the manufacturer. She sued both defendants for breach of an implied warranty of merchantability. Finally, she sued Kellogg alone for negligent manufacture of the cereal.

Ms. Barnes did not allege that Albert-son’s committed any act of negligence. It merely sold her a box of cereal that contained insects as a result of the manufacturing process. The insects were a latent condition that Albertsons’s could not discover because the insects were inside the sealed container. Although it played no active role in creating this condition, Al-bertson’s, as the retailer, could be hable for such a box of cereal. See § 672.314, Fla. Stat. (1999); Sencer v. Carl’s Mkts., Inc., 45 So.2d 671 (Fla.1950); Wagner v. Mars, Inc., 166 So.2d 673 (Fla. 2d DCA 1964).

Albertson’s and Kellogg were represented by one attorney from the inception of this litigation. In December 1999, that attorney filed a proposal for settlement pursuant to rule 1.442 and section 768.79 in the amount of $95,000. The text of that proposal stated:

(A) This proposal is made by Defendants, the Kellogg Company, a Michigan Corporation, and Albertson’s, Inc., to Plaintiff, Maria Barnes;
(B) This proposal is attempting to resolve ah claims that are, or may be, made by Plaintiff in the instant action in which this proposal is made and as alleged by Plaintiffs pending complaint, or that could be raised by Plaintiff as arising out of the incident or incidents which are the subject of Plaintiffs complaint;
(C) The relevant conditions of this proposal are that Plaintiff will execute a general release of all claims against any and ah persons or entities, inclusive of a warranty that there are no outstanding medical or attorney or other forms of liens and inclusive of a hold harmless against any such claim asserting such liens;
(D) Defendants propose settlement to occur upon payment by Defendants to Plaintiff in the total sum of $95,000.00 and that there are no non-monetary terms of this proposal, with the exception of any relevant conditions set forth in paragraph (C) above;
(E) There is currently no pending claim for punitive damages; however, the amount set forth in (D) is deemed to include consideration for the payment of any potential claim for punitive damages; and
(F) This proposal is to include any attorney’s fees and costs of the Plaintiff and attorney’s fees are/are not part of the legal claim.

Ms. Barnes did not accept this proposal. In September 2000, the trial court ultimately dismissed her action with prejudice because it determined that Ms. Barnes had committed a fraud upon the court. This court affirmed that decision in an earlier appeal. See Barnes v. Kellogg Co., 825 So.2d 376 (Fla. 2d DCA 2002) (table decision).

Shortly after the trial court entered the order of dismissal, the defendants filed a motion for costs and fees. Following an evidentiary hearing, the trial court determined that the facts in this case permitted a joint proposal for settlement without requiring the proponents to apportion the amount between them. Accordingly, it entered judgment against Ms. Barnes in the total amount of $45,779. She challenges the portion of the judgment that awarded attorneys’ fees.

Rule 1.442(c)(3) provides:

A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.

Thus, a proposal may be made to a party by “any combination of parties” as long as those parties are properly identified in the proposal. Although the joint proposal must state the amount and the terms of the proposal “attributable to each party,” nothing in the rule prohibits two defendants from making a joint proposal to one plaintiff in which the amount of the settlement is attributed jointly and severally to both defendants and where the terms of the proposal contemplate that both defendants will be dismissed with prejudice from the lawsuit.

It is well established that the offer of judgment statute and the related rule must be strictly construed because they are in derogation of common law. See Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 28 Fla. L. Weekly S225, S225, 2003 WL 1089304, — So.2d -, - (Fla. Mar. 13, 2003). As a result, virtually any proposal that is ambiguous is not enforceable. See, e.g., Twiddy v. Guttenplan, 678 So.2d 488 (Fla. 2d DCA 1996). A proposal to two or more plaintiffs who each have a claim for their own separate damages is normally unenforceable because it requires them to aggregate their damages or settle their separate claims in some collective fashion. See Allstate Indem. Co. v. Hingson, 808 So.2d 197 (Fla.2002); Allstate Ins. Co. v. Materiale, 787 So.2d 173 (Fla. 2d DCA 2001). Likewise, a proposal from two or more plaintiffs who each have a claim for their own separate damages is normally unenforceable. See Hilyer Sod, 28 Fla. L. Weekly at S225, — So.2d at-. A plaintiffs collective proposal to two or more defendants who have varying degrees of liability and may have rights to contribution between or among one another is also unenforceable. See C & S Chems., Inc. v. McDougald, 754 So.2d 795 (Fla. 2d DCA 2000).

This court has held, however, that a plaintiff who sues two defendants, one of whom is vicariously hable for the other, may be liable for fees on an offer made on behalf of both defendants when the jury returns a defense verdict. See Danner Constr. Co. v. Reynolds Metals Co., 760 So.2d 199 (Fla. 2d DCA 2000). Although the strict liability of a retailer for a manufacturer’s product is not usually described as a form of “vicarious” liability, it is a form of liability without fault where the retailer is required to pay for damages caused by the manufacturer’s error. There is no rational method to apportion fault between the strictly hable retañer, who has committed no negligent act, and the manufacturer who produced a product with a hidden defect. In such a case, where the retaüer’s liabüity is not based on fault, section 768.81(3), Florida Statutes (1999), does not allow the defendants to apportion damages between themselves. They are jointly and severally hable for all damages. Under these circumstances, we see nothing improper with a joint offer.

If anything, authorizing joint offers in such cases will facilitate settlements, which is the intended purpose of section 768.79. If the retailer and the manufacturer were each required to file proposals in the full amount of the expected damages, then the plaintiff could accept a full recovery from the first offer while continuing litigation against the second. A fifty percent offer from either defendant would have no impact on the plaintiffs decision to try the case when both defendants are jointly and severally hable for the entire judgment. Any settlement by the retailer would merely shift the lawsuit so that the retailer was the plaintiff seeking indemnity from the manufacturer. Thus, a joint offer by a retailer and a manufacturer, when the retailer has committed no aheged independent neghgent act, does not restrict the plaintiffs ability to evaluate or negotiate the claim and it facilitates overall settlement of the dispute. We have carefully reviewed the Florida Supreme Court’s recent opinion in Hilyer Sod, 28 Fla. L. Weekly S225, — So.2d-, but we do not interpret that opinion as overruling the factuahy distinguishable case of Danner Construction, 760 So.2d 199, or as prohibiting the offer made in this case under these circumstances.

Affirmed.

FULMER and WHATLEY, JJ., Concur.

      1. The drafter of this document apparently did not select between the ''are” and "are not" designations. Ms. Barnes had requested attorneys’ fees in her complaint but had not alleged a factual basis for this request. Because the case was dismissed and Ms. Barnes was never entitled to fees under any theory, this ambiguity in the proposal was not discussed in the trial court and has not been argued as an issue on appeal.

      . In this appeal, Ms. Barnes continues to argue fervently that the trial court erred in dismissing her lawsuit because she did not commit fraud. This panel has no authority to revisit the merits of that order of dismissal or the earlier appeal. Thus, despite her pleas, this court cannot review this issue for Ms. Barnes.

      . The award of attorneys' fees was based on an hourly rate of $95 and time totaling approximately 400 hours. No multiplier was used in setting this amount.

      . This technical liability is often a matter resolved between the two defendants by an indemnity agreement and may also be a situation entitling the retailer to common law indemnity against the at-fault manufacturer. See, e.g., Pafco Gen. Ins. Co., as Subrogee of World Office Prods. Mfg. Inc. v. Wah-Wai Furniture Co., 701 So.2d 902 (Fla. 3d DCA 1997) (involving retailer's action for indemnity against manufacturer of defective product); Costco Wholesale Corp. v. Tampa Wholesale Liquor Co., Inc., 573 So.2d 347 (Fla. 2d DCA 1990) (involving plaintiff suit against retailer for defective product in which retailer then brought third-party indemnity actions). In this case, Kellogg and Albertson's had entered into an indemnity agreement. Our holding, however, rests not on their private agreement but on the passive/active nature of strict liability in the retailer/manufacturer setting.


author: LEWIS, J.

text:
    Carrie K. DISTEFANO, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Appellee.
    No. 1D02-1196.
    District Court of Appeal of Florida, First District.
    April 28, 2003.

      John E. Booth, of Michles & Booth, P.A., Pensacola; Louis K. Rosenbloum, of Louis K Rosenbloum, P.A., Pensacola, for Appellant.
    Michael D. Hook, of Hook, Bolton, Mitchell, Kirkland & McGhee, Pensacola, for Appellee.
   LEWIS, J.

Appellant, Carrie K. Distefano, appeals the trial court’s final order dismissing her action for uninsured motorist benefits against appellee, State Farm Mutual Automobile Insurance Company, on the ground that she gave false or misleading testimony during discovery concerning facts central to the issues in her lawsuit, and argues that the trial court’s findings were insufficient to support the sanction of dismissal. Concluding that the trial court did not abuse its discretion in dismissing appellant’s lawsuit, we affirm.

On February 10, 2000, appellant filed a lawsuit against appellee for uninsured motorist coverage as a result of a motor vehicle accident that occurred on November 23,1998. Appellant claimed injuries to her lower and middle back and legs, a torn rotator cuff in her right shoulder, and a swollen right wrist. She claimed to still have problems with each of these body parts, particularly her lower back.

During a June 2000 deposition taken by appellee, appellant was asked if she had been involved in any accidents other than the 1998 accident and another in 1989. She responded that she had an earlier accident in 1987, which affected her neck, and two minor accidents, one in 1992, and another in 1993. Appellant did not disclose a 1999 accident. Appellant stated that she did not have any problems or treatment on her right shoulder before the November 1998 accident. While appellant claimed that she had no injuries from the 1992-1993 accidents, the medical records discovered through appellee’s independent investigation contradicted appellant’s claim. Although appellant categorically denied suffering any injuries from her 1992 accident, appellant’s medical records showed that she sought treatment from several doctors following the 1992 accident. Moreover, appellant began seeing a chiropractor shortly after the 1992 accident, complaining of general pain and stiffness localized over her lower back and neck. Following the 1992 accident, appellant also received a three percent increase to her impairment rating, and she took a prescription pain killer and muscle relaxer. Further evidence revealed that appellant also filed a claim with her insurance company as a result of the 1992 accident, listing injuries to her neck, middle back, and right side of the jaw.

In her response to appellee’s first set of interrogatories, which were served on January 25, 2001, appellant indicated that she had been involved in a subsequent accident on July 8, 2000, fifteen days after the date of appellant’s deposition. However, she again failed to mention the 1999 accident, which occurred less than two months after the 1998 accident at issue here. It was only after appellant was served with a second set of interrogatories on October 10, 2001, that she acknowledged the 1999 accident. However, appellant’s acknowledgment of the 1999 accident only occurred after appellee brought the accident report to her attention. As a result of appellant’s July 8, 2000, accident, appellant claimed injuries virtually identical to those that she had already claimed as a result of the 1998 accident and received insurance benefits for such.

In the order appealed, the trial court found that appellant gave false information or omitted information on matters central to the issues in her lawsuit during discovery in four specific areas: first, appellant claimed to have no injuries from her 1992 accident when the evidence showed that she claimed injuries in 1992 similar to the injuries claimed from the 1998 accident; second, appellant failed to reveal the 1999 accident when asked about any subsequent accidents; third, appellant made misrepresentations and gave false information regarding the physical limitations she faced as a result of the 1998 accident; and fourth, appellant gave false information or made misrepresentations regarding prior similar injuries. Based on these findings, the trial court dismissed appellant’s claim with prejudice as a sanction for appellant’s false testimony during discovery concerning facts which directly related to issues central to her case. This appeal followed.

The standard of review for a trial court’s imposition of sanctions is abuse of discretion. Baker v. Myers Tractor Servs., Inc., 765 So.2d 149, 150 (Fla. 1st DCA 2000). “A trial judge has the inherent authority to dismiss actions based on fraud and collusion.” Young v. Curgil, 358 So.2d 58, 59 (Fla. 3d DCA 1978). However, this power of dismissal should be used “cautiously and sparingly,” and “only upon the most blatant showing of fraud, pretense, collusion, or other similar wrongdoing.” Id. (citations omitted); Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002). The party alleging fraudulent behavior must prove such by clear and convincing evidence. Century Props., Inc. v. Machtinger, 448 So.2d 570, 573 (Fla. 2d DCA 1984) (citation omitted). Fraud occurs when it can be demonstrated, “clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)). When a party lies about matters bearing directly on the issue of damages, dismissal is an appropriate sanction. Desimone v. Old Dominion Ins. Co., 740 So.2d 1233, 1234 (Fla. 4th DCA 1999).

Appellant contends that any misstatements she made during her June 2000 deposition were due to poor memory and were not intended to deceive, citing Simmons v. Henderson, 745 So.2d 1031, 1032 (Fla. 2d DCA 1999), as an example of when courts have not construed misstatements of fact as fraud. However, the facts of Simmons are distinguishable from this case. In Simmons, the trial court conducted an evidentiary hearing that focused primarily on the appellant’s misstatements regarding her work, her income, and her understanding of questions asked during her deposition. Id. The appellant in that case had an I.Q. of sixty-fíve and often became very confused during questioning. Id. While appellant here claims to have a poor memory due to her age, appellant submitted no evidence that she has any physical or mental problems affecting her memory, and appellant’s deposition testimony revealed that she is capable of understanding and answering questions posed to her. As such, because there is no evidence that appellant had any mental incapacity, appellant’s reliance on Simmons is misplaced and appellant’s claim that her misstatements should be excused as mere forgetfulness is without merit.

Appellant also argues that, in addition to problems caused by poor memory, any errors in her testimony are the result of the passage of time and vague questioning by the appellees. In Morgan, which we find persuasive, the Second District rejected similar arguments from an appellant who filed suit for personal injuries resulting from an automobile accident, and, in her deposition, denied having had neck or low back pain before the accident. 816 So.2d at 252. A subsequent evidentiary hearing established that the appellant had sought treatment for neck and low back pain from two different chiropractors from 1991 until 1995. Id. at 252-53. The trial court found that “these are not ... oversights or simply failed memory ... But it seems to be a whole line of answers that are intended to deceive....” Id. The trial court then dismissed the appellant’s complaint with prejudice as a sanction for attempting to perpetrate a fraud on the court. Id. Based on the record and the trial court’s findings, the Second District affirmed the trial court’s order, holding that the trial court did not abuse its discretion by imposing the sanction of dismissal. Id. Although the appellant had been truthful about some matters regarding her lower back and although she had disclosed that she had received some treatment from her chiropractor, the Second District held that “[rjevealing only some of the facts does not constitute ‘truthful disclosure.’ ” Id. at 254. (quoting Metro. Dade County v. Martinsen, 736 So.2d 794, 796 (Fla. 3d DCA 1999) (concluding that the trial court abused its discretion in failing to dismiss the appellee’s case, while noting that the extensive nature of the appellee’s history belied her contentions that she had forgotten about her previous injuries and treatments)).

Here, as in Morgan, appellant’s denial of any injury from the 1992 accident did not result from mere oversight or forgetfulness. Although appellant revealed some facts regarding the names of her doctors and the existence of the accident, that alone does not constitute “truthful disclosure.” See Morgan, 816 So.2d at 254. Likewise, appellant’s attempt to conceal the 1999 accident does not constitute “truthful disclosure,” and appellant’s conflicting testimony regarding the extent of her injuries following each of her accidents suggests an intent to deceive.

Appellant, also relying on the Second District’s recent opinion in Jacob v. Henderson, 28 Fla. L. Weekly D286 (Fla. 2d DCA Jan.24, 2003), opinion withdrawn and superceded on rehearing in part by 840 So.2d 1167 (Fla. 2d DCA 2003), contends that the trial court’s findings were insufficient to support the sanction of dismissal. In Jacob, the trial court dismissed the appellant’s case based on her deposition testimony regarding her physical abilities, which was contradicted by surveillance videotape evidence submitted by the defendant. Id. The Second District reversed the trial court, holding that there was no clear and convincing evidence that the appellant had set into motion an “unconscionable scheme” to interfere with “the judicial system’s ability to impartially adjudicate the matter.” Id. Nevertheless, Jacob is distinguishable from the case at bar because the record before us demonstrates clear and convincing evidence of fraud, and because appellant has not “shown that the sanction imposed is unreasonable” or. that the trial court “clearly erred in its interpretation of the facts.” See Baker, 765 So.2d at 151 (citations omitted). Furthermore, appellant’s misstatements were not merely about her present or prospective physical abilities; appellant also omitted from her deposition testimony numerous concrete, historical facts, such as the occurrence of the January 1999 accident.

We find the instant case to be on all fours with this Court’s recent decision in Baker. There, we affirmed the trial court’s dismissal of the plaintiffs cause of action where the plaintiff gave material false testimony during discovery concerning facts directly related to a central issue of the action. See Baker, 765 So.2d at 149-50. The appellant brought a claim for an injury to his right knee. Id. at 150. When asked under oath on repeated occasions whether he had sustained any prior injuries to his right knee, the appellant denied any injury. Id. However, during discovery, the appellee obtained the appellant’s employment records, which revealed that the appellant had suffered an on-the-job injury to his right knee, in addition to a high school football injury to his right knee. Id. The trial court found that the appellant “knowingly concealed the existence of these prior knee injuries with the intent to perpetuate a fraud upon the Court,” and noted that the appellant’s conduct was “particularly egregious” because of the number of times he “actively sought to conceal the prior condition of his right knee during discovery.” Id.

Here, like Baker, appellant twice failed to disclose relevant accidents and injuries, including the occurrence of the January 1999 accident. She first omitted this information at the June 2000 deposition and then omitted it again in her response to appellee’s first set of interrogatories. Appellant admitted the January 1999 accident only after appellee confronted her with the accident report. Therefore, the trial court did not abuse its discretion in finding that appellant actively sought to conceal the 1999 accident, which occurred less than two months after the accident that is the subject of this lawsuit, and finding that appellant had given false information regarding the extent and nature of her injuries from the 1992 and 1998 accidents. See Desimone, 740 So.2d at 1234 (affirming the trial court’s dismissal as a sanction for plaintiffs fraud, which was demonstrated by “numerous and repeated misstatements of fact designed to intentionally thwart defendants from conducting discovery.”). Accordingly, the order of the trial court is affirmed.

AFFIRMED.

BARFIELD and BROWNING, JJ., CONCUR.


author: PER CURIAM. ERVIN, J.,

text:
    Steven R. SHELLEY and Shirl Shelley, Appellants, v. STATE of Florida, DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 1D01-4452.
    District Court of Appeal of Florida, First District.
    April 28, 2003.
    Appellants, pro se.
    Mark Casteel, General Counsel; Clyde C. Caillouet, Assistant General Counsel, Pensacola, for Appellee.
   PER CURIAM.

On direct appeal from an administrative agency’s final order imposing a fine, appellants claim that their constitutional rights were violated because they did not receive notice of their right to demand an administrative- hearing. They claim no rule or statutory violation. They pose only the question whether initiating an administrative proceeding by sending certified mail to an address furnished to a state agency by or on behalf of the subject of the proceeding offends due process requirements, where the initial correspondence is returned unclaimed (after the proceeding has concluded), but subsequent (uncertified) correspondence sent to the same address reaches the addressee uneventfully.

We hold that the use of mailed notice meets state and federal due process requirements in these circumstances. See Dusenbery v. United States, 534 U.S. 161, 162, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) (“Contrary to petitioner’s argument, Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 ... [1983], says that a State must attempt to provide actual notice, not that it must provide actual notice.”); Mullane v. Cent. Hanover Bank & Trust, Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (the test is whether the notice was “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”); Keys Citizens For Responsible Gov’t, Inc. v. Florida Keys Aqueduct Auth., 795 So.2d 940, 949 (Fla.2001) (“the additional procedural safeguard of actual notice urged by Citizens would add a tremendous burden and expense ... and would have little value”).

Affirmed.

DAVIS and BENTON, JJ., Concur; ERVIN, J., Dissents with Opinion.

ERVIN, J.,

dissenting.

The majority affirms the default order under the theory that the attempted service of the notice — rather than actual service — was reasonable under the circumstances. What the majority overlooks is that this rule, and the cases espousing it, apply only to circumstances in which an evidentiary hearing was first conducted, and findings made as to the reasonableness of the notice afforded. In stark contrast to such cases, no fact-finding hearing has ever been conducted in the instant case; hence, the record before us is silent regarding the essential issue of whether appellants were accorded procedural due process before the entry of the default order. I would therefore reverse and remand with directions to the Department of Financial Services (DFS) to conduct an administrative hearing on the question of whether the Shelleys received adequate notice of the complaint prior to the default. If it is determined that the appellants did not receive notice, they should be accorded a hearing on the merits of the allegations contained in DFS’s administrative complaint.

The complaint included a notification of rights, informing the Shelleys, pursuant to Florida Administrative Code Rule 28-106.111(4), that they had 21 days after receipt of the complaint within which to petition the Department for an administrative hearing concerning the allegations, and that failure to do so would constitute a waiver of such right. The Department sent a copy of the complaint by certified mail to each of the Shelleys, at the same address in the state of Montana. The Department also served copies of the complaint on Florida’s Secretary of State, pursuant to the long-arm statute. Section 48.181(1), Florida Statutes (2001). The record on appeal does not show that either of the Shelleys received the complaint. The certified mail receipts accompanying the complaints were returned as “unclaimed” more than three months after their issuance. When the Shelleys failed to respond within the time specified, DFS entered the default final order, which is the subject of this appeal. DFS reasoned that appellants had “failed to request an administrative hearing within 21 days after receipt of the Complaint,” notwithstanding notification of such requirement in the complaint; as a result, appellants were deemed to have waived their rights to such hearing. The Shelleys now argue that they “at no time personally received any notice of the Complaint and therefore had no possibility to request an administrative hearing within 21 days.” As stated, there is nothing in the record that refutes this argument.

After receipt of the Department’s order, the Shelleys initially filed a petition to vacate it. Thereafter they presumably abandoned the petition by timely filing the notice of this appeal. The pro se appellants, however, can hardly be faulted for not pursuing this avenue of relief, because the default final order, allegedly the only legal document they received, advised them that they had waived their right to an administrative hearing due to their failure to seek such relief within 21 days after service of the complaint, and the only remedy remaining was to file an appeal within 30 days thereafter.

In support of their argument that the Department’s final default order must be vacated, because they were not afforded procedural due process, the Shelleys cite Department of Law Enforcement v. Real Property, 588 So.2d 957 (Fla.1991), in which the supreme court reiterated certain fundamental principles common to the application of the doctrine:

Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Procedural due process under the Florida Constitution
guarantees to every citizen the right to have that course of legal procedure which has been established in our judicial system for the protection and enforcement of private rights. It contemplates that the defendant shall be given fair notiee[ ] and afforded a real opportunity to be heard and defend! ] in an orderly procedure, before judgment is rendered against him.
State ex rel. Gore v. Chillingworth, 126 Fla. 645, 657-58, 171 So. 649, 654 (1936) (citations omitted); accord, e.g., Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972) (procedural due process under the fourteenth amendment of the United States Constitution guarantees notice and an opportunity to be heard at a meaningful time and in a meaningful manner). The manner in which due process protections apply vary with the character of the interests and the nature of the process involved.

Id. at 960. The court particularly observed that “[tjhere is no single, inflexible test by which courts determine whether the requirements of procedural due process have been met.” Id.

The rule above cited is altogether applicable to the facts at bar. The Shelleys are not claiming that they were entitled to actual rather than constructive notice, but that the constructive notice did not reach them. Although it is the law that a rebut-table presumption of receipt arises from proof of mailing, Home Ins. Co. v. C & G Sporting Goods, Inc., 453 So.2d 121, 123 n. 3 (Fla. 1st DCA 1984), nevertheless, “[t]he Florida Administrative Code contains no provision requiring that receipt of the notice be irrefutably presumed following an allegation of mailing.” Accardi v. Dep’t of Envtl. Protection, 824 So.2d 992, 995 (Fla. 4th DCA 2002) (holding that a fact-finder must determine whether appellants received the agency’s written notice notifying them that they had 21 days in which to seek a hearing).

An evidentiary hearing should therefore be held to determine whether the Shelleys did not receive notice through no fault of their own. See, e.g., Applegate v. Nat’l Health Care Affiliates, Inc., 667 So.2d 332 (Fla. 1st DCA 1995) (reversing dismissal of an appeal to the Unemployment Appeals Commission to determine whether Apple-gate was precluded from filing a timely appeal by appellee’s failure to mail timely notice of the final determination); Southeastern Termite & Pest v. Ones, 792 So.2d 1266 (Fla. 4th DCA 2001) (reversing denial of motion to vacate clerk’s default for evi-dentiary hearing to determine whether appellant was personally served with process); Richardson v. Dep’t of Revenue, 742 So.2d 445 (Fla. 4th DCA 1999) (reversing for an evidentiary hearing, because appellant’s sworn motion to vacate paternity judgment sufficiently raised an issue of fact as to whether he received notice of the hearing); Venetoff v. Papas, 732 So.2d 453, 454 (Fla. 2d DCA 1999) (“A party is enti-tied to an evidentiary hearing when the issue of whether notice was received has been raised.”). As the Fifth District stated in Power v. Grow Group, Inc., 697 So.2d 1286 (Fla. 5th DCA 1997), when it reversed the summary denial of a motion to set aside final summary judgment:

Generally, where one party alleges that she did not receive notice of a hearing which resulted in a judgment against her, and the other party disputes this contention, an evidentiary hearing is required to resolve the matter. The court cannot determine the credibility of appellant’s claim of lack of notice without hearing her evidence. The court is not bound to believe her, but it is bound to hear her.

Id. at 1287 (citations omitted).

The Department also seeks to justify its order by arguing that it served a copy of the administrative complaint on the Secretary of State pursuant to section 48.181, Florida Statutes (2001), and that such substituted service was sufficient under the facts. I cannot agree. The appellants state that they never received a copy of the complaint from the Secretary of State, and, as I earlier explained, nothing in the record refutes this assertion. Indeed, there is no showing that the Secretary of State attempted to forward a copy of the complaint to them, as required by section 48.161(1), Florida Statutes (2001). The law is clear that one seeking to effect substituted service under this statute has the burden of presenting facts which clearly justify the applicability of such method of service. See George Fischer, Ltd. v. Plastiline, Inc., 879 So.2d 697, 699 (Fla. 2d DCA 1980).

The procedure for service set out in section 48.181 must comply with the prerequisites established in section 48.161, relating to the method of substituted service on nonresident defendants. The Second District described the interrelationship of the two statutes in the following terms:

If the plaintiff chooses substituted service on the Secretary of State under Section 48.181(1), then perfection of such substituted service requires full compliance with one of the alternative methods provided by Section 48.161. Section 48.161 requires such substituted service be perfected and evidenced by either: (1) registered or certified mailing to the nonresident of both a notice of such substituted service and a copy of the process, evidenced by the filing of the nonresident’s return receipt and an affidavit of compliance by plaintiff or his attorney; or, (2) an appropriate officer’s return showing service on the nonresident within or without this state.

P.S.R. Assocs. v. Artcraft-Heath, 364 So.2d 855, 857-58 (Fla. 2d DCA 1978). The record before us fails to disclose conformance with either of the above two methods.

The only argument the Department offers for not following the dictates of section 48.161 is that the Shelleys refused to accept service of earlier mail DFS had sent them. Once again, nothing in the record remotely indicates that the Shelleys intentionally refused or avoided service. The letters mailed to the Shelleys and returned were marked “unclaimed,” not “refused.” Moreover, the extraordinary length of time from the date the copies of the complaint were mailed until the unclaimed mail receipts were returned reasonably implies that the mailed complaints may never have been delivered to the Shelleys. Because the appellants were not furnished an evidentiary hearing on the issue of service, we obviously have no basis on which to make any determination of whether they deliberately refused to accept service. As this court observed in All Mobile Video, Inc. v. Whitener, 773 So.2d 587 (Fla. 1st DCA 2000): “[I]n order to comply with section 48.161, plaintiffs who seek to employ substituted service but fail to obtain a return receipt must allege that the defendant is ‘concealing his whereabouts, or that they had exercised due diligence in attempting to locate him.’” Id. at 590 (quoting Chapman v. Sheffield, 750 So.2d 140, 143 (Fla. 1st DCA 2000)).

Because I am firmly convinced that the procedure the Department used to effect service on the Shelleys did not comport with due process, I would reverse the default final order and remand for further proceedings consistent with this dissent.

      . The complaint alleged that during the time the Shelleys conducted business in the state of Florida, neither they nor the securities they had sold were registered with the DFS.


author: WHATLEY, Judge.

text:
    In the Interest of T.W., Jr., and K.W., children, M.W. and T.W., Appellants, v. Department of Children and Families, Appellee.
    Nos. 2D0-1994, 2D02-1995.
    District Court of Appeal of Florida, Second District.
    April 30, 2003.
    Beth Harlan of Beth Harlan, P.A., Lake-land, for Appellants.
    Douglas Sherman of Department of Children and Families, Bartow, for Appel-lee.
   WHATLEY, Judge.

In this appeal of an order terminating their parental rights, both parents contend that the trial court erred in reopening the case after the parties had rested. We agree and reverse.

The trial in this matter began on December 5, 2001, and, because the guardian was not available to testify on that date, it was continued until January 29, 2002. After testimony was taken on January 29, both parties rested and the trial court announced, “So end of case. Under advisement. I will have to dig through all of this and review my prior notes and then decide what I am going to do.” However, on March 26, 2002, the trial court sua sponte reopened the case and asked for additional testimony, noting that the father had been subsequently arrested for offenses involving alcohol. Neither party had moved to reopen the case, and both parents objected to such.

It is improper for the trial court to take sua sponte actions which give the appearance of partiality. In Lyles v. State, 742 So.2d 842 (Fla. 2d DCA 1999), it was alleged that the appellant had violated the terms of his probation. At a hearing on the violation, the State rested and the appellant noted a deficiency in the State’s case. Thereafter, the trial court allowed the State to reopen its case, and the court ordered that the appellant’s fingerprints be-taken for identification purposes. After the hearing, the trial court found that the appellant had violated the terms of his probation.

In Lyles, this court held that the trial court committed fundamental error by sua sponte ordering the appellant’s fingerprints be taken and bifurcating the hearing to allow additional testimony. Id. at 843. This court held that “the trial judge gave the appearance of partiality by taking sua sponte actions which benefitted the State.” Id. In the instant case, the trial judge gave the appearance of partiality by sua sponte reopening the case after all parties had rested and he had commented that the trial was concluded.

After the case was reopened, evidence of the father’s arrest was presented and the guardian changed her recommendation from the earlier proceeding. We conclude that as a result of the trial court’s sua sponte decision to reopen the trial, the parents were deprived of their right to an impartial magistrate. Id.; cf. Kirkpatrick v. State, 769 So.2d 515 (Fla. 1st DCA 2000) (holding that trial court did not commit reversible error by' sua sponte directing the State to produce additional witnesses at a continuation of a probation hearing after both parties had rested because its actions were that of a neutral fact finder attempting to resolve conflicts in the testimony presented); Fitzhugh v. State, 698 So.2d 571 (Fla. 1st DCA 1997) (affirming decision to reopen case when it could not be determined from the record whether the trial court directed the State to reopen the case or whether the State requested permission to reopen the case).

Accordingly, we reverse the order terminating the parental rights of both parents and order a new trial before a different judge on the amended petition for termination of parental rights.

Reversed and remanded.

CASANUEVA and DAVIS, JJ., Concur.


author: FULMER, Judge.

text:
    Lawrence P. GRAFF, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3365.
    District Court of Appeal of Florida, Second District.
    April 30, 2003.

      Loren D. Rhoton of Rhoton & Hayman, P.A., Tampa, for Appellant.
   FULMER, Judge.

Lawrence Graff challenges the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Graff pleaded guilty to strong armed robbery and aggravated battery and pleaded no contest to escape. He was sentenced to fifteen years as a habitual felony offender (HFO) and a prison releasee reoffender (PRR) for the strong armed robbery, the aggravated battery, and the escape, all to run concurrently. On June 13, 2001, pursuant to a mandate from this court, the trial court issued an amended sentence, deleting the PRR portion of Graffs sentence. See Graff v. State, 785 So.2d 649 (Fla. 2d DCA2001).

In his motion, Graff claimed that his plea was not voluntary due to ineffective assistance of counsel. He claimed that his attorney led him to believe that he could receive drug treatment in lieu of a prison sentence, even though his attorney knew, or should have known, that the State intended to pursue a PRR or HFO sentence or both. Graff claimed that he thought the judge had discretion to sentence him to less than the HFO or PRR sentence if there were mitigating circumstances. If Graffs allegations are true, he was misad-vised by his attorney because the court did not have discretion to impose anything less than the fifteen-year minimum mandatory under the PRR statute. See State v. Cotton, 769 So.2d 345 (Fla.2000).

The trial court seemed to misunderstand Graffs claim. In its order, it focused upon whether or not Graff was aware that he could be sentenced to fifteen years in prison. The trial court quoted at length from the plea colloquy. Graffs attorney indicated to the court that he reviewed possible penalties with Graff, including the fact that he qualified for PRR, HVFO, or HFO, and Graff indicated to the court that he' understood. The court then stated, “There is no guarantee as to how you would be sentenced. The only guarantee is it would be no more than fifteen years.” Graff responded, ‘Tes, ma’am.” However, Graff did not claim that he did not know what the possible maximum sentence could be. He claimed that his attorney led him to believe that he could present mitigating evidence to the court and receive drug treatment in lieu of prison. The record excerpts quoted by the trial court do not refute Graffs claim. Accordingly, we reverse and remand for an evidentiary hearing.

Reversed and remanded.

DAVIS and KELLY, JJ., Concur.


text:
    UNDERWRITERS AT INTEREST AT LLOYD’S a/s/o Tech Data, Appellant, v. WATKINS MOTOR LINES, INC., Appellee.
    No. 3D02-1949.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Rehearing Denied June 4, 2003.
    Mitchell L. Shadowitz, Boca Raton, for appellant.
    Lawrence J. Roberts, Coral Gables, for appellee.
    Before LEVY, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

Underwriters at Interest at Lloyds appeals a judgment entered following summary judgment. We reverse. The trial court erred in entering summary judgment as genuine issues of fact remain unresolved as to the proper construction of the pertinent contract provisions. Each side suggests that we construe the contract in accordance with its position. However, summary judgment is inappropriate where the contract at issue is susceptible of more than one reasonable construction. Birwelco-Montenay, Inc. v. Infilco Degremont, Inc., 827 So.2d 255 (Fla. 3d DCA 2001). Accordingly, the language of the agreement is ambiguous and presents factual issues requiring reversal.

Reversed and remanded.


author: TAYLOR, J.

text:
    Willie PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2049.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Rehearing Denied June 19, 2003.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Willie Perry appeals his conviction and sentence for resisting with violence. We affirm on all issues raised by appellant but write to address his contention that the trial court erred in denying his motion for judgment of acquittal.

Appellant was charged with possession of cocaine, battery on a law enforcement officer, and resisting an officer with violence. Before trial, appellant filed a motion to suppress the cocaine. After an evidentiary hearing, the trial court granted the motion. Appellant then proceeded to jury trial on the battery and resisting charges. These charges arose from events that occurred while appellant was being booked into the Broward County jail following his arrest for possession of cocaine. The evidence at trial established that appellant violently resisted efforts by detention deputies to conduct a strip search of him. At the close of the evidence, appellant moved for a judgment of acquittal. He argued that the evidence failed to show that the deputies were lawfully executing their duties when he resisted, in that the evidence did not show that his strip search was performed in compliance with Florida law.

Deputy Enrique was the central intake booking deputy at the jail on the day of appellant’s arrest. His duties included screening new inmates and introducing them into the facility. Because appellant had been arrested for a narcotics offense, he was subject to a strip search, pursuant to departmental policy. Appellant was taken to the strip search room, where he complied with Deputy Enrique’s request to undress. However, appellant refused to follow the deputy’s directions for an anal cavity search. He started yelling and vehemently protested any inspection of his anal area.

Fearing for his safety, Deputy Enrique called for assistance. Deputy Anton responded to the search cell and found appellant screaming and flailing his arms about in an aggressive manner. The deputies tried to convince appellant to calm down and cooperate, but he refused to comply. When Deputy Enrique grabbed appellant’s right arm to handcuff him, appellant fell to the ground, kicking his feet at the deputies and belligerently throwing his hands up. Appellant then struck Deputy Enrique in the face with a closed fist and kicked Deputy Anton’s legs. Consequently, appellant was charged with battery on a law enforcement officer and resisting with violence.

Following a jury trial, appellant was found not guilty of the battery charge but guilty of resisting with violence. On appeal, appellant argues that the trial court should have granted his motion for judgment of acquittal on the resisting charge because the evidence failed to establish that his detention was conducted in a lawful manner.

The standard of review for the denial of a motion for judgment of acquittal is whether the verdict is supported by substantial, competent evidence. See Crump v. State, 622 So.2d 963, 971 (Fla.1993); Tibbs v. State, 397 So.2d 1120 (Fla.1981). “A motion for judgment of acquittal should only be granted if there is no view of the evidence from which a jury could make a finding contrary to that of the moving party.” Jeffries v. State, 797 So.2d 673, 580 (Fla.2001).

The elements of resisting an officer with violence are: (1) knowingly resisting, obstructing, or opposing a law enforcement officer, (2) in the lawful execution of any legal duty, (3) by offering to do violence to his person. State v. Henriquez, 485 So.2d 414 (Fla.1986); § 843.01, Fla. Stat. Appellant argues that the state failed to prove that the deputies were in the “lawful execution of any legal duty” in that it presented no proof that the strip search was performed in compliance with section 901.211(5), Florida Statutes (1997). This section, which sets forth requirements for post-arrest strip searches, provides that:

No law enforcement officer shall order a strip search within the agency or facility without obtaining the written authorization of the supervising officer on duty.

Appellant asserts that Deputy Enrique violated the statute because he did not obtain written authorization of a “supervising officer on duty” before the search. The state responds that the deputy’s testimony was sufficient to support a finding that the deputy followed the statutory requirements of section 901.211. Deputy Enrique testified that he did not personally “order” the strip search; he followed written departmental polices and procedures adopted by then-Sheriff of Broward County, Ken Jenne. These rules require booking officers to conduct a strip search of all inmates arrested for a violent felony or narcotics offense. Deputy Enrique explained that they must search for concealed weapons and contraband for the “care, custody, and control” of arrestees, as well as for the protection of other inmates and staff. The state argues that the deputy’s testimony established that he obtained written authorization of a “supervising officer on duty.” In so arguing, the state points out that, under section 951.061, Florida Statutes, the sheriff is designated as chief correctional officer of the county correctional system. According to the state, the sheriff qualifies as a “supervising officer,” who, as an elected official under Florida Statute section 100.041, remains “on duty” even though he is not physically present at the jail.

The state further argues that even if the search did not comply with section 901.211, Florida Statutes, the trial court properly denied the motion for judgment of acquittal, because an officer’s improper performance of his legal duty at the time of a defendant’s forcible resistance to the officer is not a defense to a charge of resisting arrest with violence.

Resisting an officer with violence is proscribed by section 776.051(1), Florida Statutes (1997), which states:

A person in not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.

In Lowery v. State, 356 So.2d 1325, 1326 (Fla. 4th DCA 1978), we held that the use of force to resist an arrest is unlawful, notwithstanding the technical illegality of the arrest. We reached that ruling after determining that section 843.01 (resisting and obstructing with violence) must be read together with section 776.051.

Appellant acknowledges that a person may not use force or violence to resist an arrest, even if the arrest is unlawful. However, he contends that this principle is limited to “arrests.” He argues that it does not apply when the officer is engaged in the unlawful performance of some other duty, such as a detention. In this case, appellant was not charged with resisting arrest but with resisting detention at the county jail. As such, appellant argues that he was free to use force or violence if the detention, i.e., the strip search, was not properly performed.

We disagree with appellant’s argument that the rule prohibiting the use of force against a known police officer is limited to an arrest situation. Rather, courts have extended it to apply to illegal stops, searches, and detentions. See Harris v. State, 801 So.2d 321 (Fla. 4th DCA 2001)(holding that an illegal stop does not automatically preclude a conviction for battery on a law enforcement officer); Dominique v. State, 590 So.2d 1059 (Fla. 4th DCA 1991)(holding that an illegal investigative stop was not a defense to battery of a known police officer engaged in lawful performance of his duties); Tillman v. State, 807 So.2d 106, 109 (Fla. 5th DCA 2002)(holding that defendant was not justified in using violence to resist police officers even if the officers’ entry into the screened enclosure of his residence and subsequent pat-down and detention were illegal); State v. Roux, 702 So.2d 240 (Fla. 5th DCA 1997)(holding that an illegal detention does not authorize a defendant to commit a battery upon a law enforcement officer); Miller v. State, 636 So.2d 144 (Fla. 1st DCA 1994)(discussing that engaging in scuffle with officer during improper detention constitutes battery on law enforcement officer and can give rise to valid arrest and conviction for resisting arrest with violence); Bradford v. State, 567 So.2d 911 (Fla. 1st DCA 1990)(discussing that although officer was not engaged in lawful performance of his duties when he initially searched defendant, defendant’s intentional striking of officer during the encounter constituted battery or resisting arrest with violence). But cf. Taylor v. State, 740 So.2d 89 (Fla. 1st DCA 1999)(holding that if a defendant is charged under section 843.01 with resisting or opposing an officer with violence in the performance of some duty — other than an arrest — the state must prove that the officer was engaged in a lawful duty).

In Dominique, we reasoned that if the use of force is not permitted in resisting an unlawful arrest, “[i]t logically follows that the use of force would be even less acceptable when a law enforcement officer has merely stopped an individual, since a stop involves less of an invasion of an individual’s privacy than does an arrest.” 590 So.2d at 1061 n. 1. Here, appellant was not merely stopped or temporarily detained. He was already in custody, undergoing post-arrest procedures, where the prohibition against violently resisting or opposing an officer would apply as well. See Vlahovich v. State, 757 So.2d 1219 (Fla. 2d DCA 2000), quashed in part on other ground, 788 So.2d 245 (Fla.2001)(concluding that fact that defendant was already in custody at time of incident would not preclude his conviction for resisting arrest with violence). While a person in custody retains his or her Fourth Amendment rights against unreasonable searches and seizures, these rights are weighed against the legitimate concerns of jail officials for security and the prevention of smuggling drugs, weapons, and other contraband into the detention facility. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

Recognizing that a strip search represents a substantial invasion of an arrestee’s privacy interest, the legislature enacted minimal acceptable standards of conduct for law enforcement officers conducting strip searches of persons arrested in Florida. § 901.211, Fla. Stat.; D.F. v. State, 682 So.2d 149, 153 (Fla. 4th DCA 1996). “A strip search conducted in violation of the statutory requirements set forth in section 901.211, in essence, establishes police misconduct and constitutes a Fourth Amendment violation.” State v. Augustine, 724 So.2d 580, 581 (Fla. 2d DCA 1998). However, the appropriate remedy for a statutory strip search violation is the suppression of evidence obtained by the unlawful search. Id.; D.F., 682 So.2d at 154. Additionally, a complainant may seek civil damages. Id. at 153.

In this case, appellant did not seek to suppress any evidence obtained from the strip search or to recover civil damages. Rather, appellant raised the asserted strip search violation as a defense to the charge of resisting an officer with violence. As we explained above, the use of force or violence to resist an officer during a post-arrest strip search is unlawful, even though the officer improperly performs the search. In other words, noncompliance with the strip search statute is not a defense to resisting with violence. We thus conclude that the trial court did not err in denying the motion for judgment of acquittal.

AFFIRMED.

KLEIN and GROSS, JJ., concur.

      . During an anal cavity search arrestees are required to bend down into a deep knee squat, spread their buttocks, and display the anal cavity for inspection by a deputy, who performs a visual inspection without touching the anal region.

      . We do not address whether the strip search complied with the statute or otherwise met the test of reasonableness under the Fourth Amendment. However, we note that in D.F., the state conceded that the strip search was done in violation of section 901.211, where the officer searched the defendant in a holding cell without obtaining the prior permission of his supervisor on duty at the police station. SeeD.F., 682 So.2d at 152.


text:
    Samaria GIGGER, as personal representative of the Estate of Bernie R. Gigger, for the use and benefit of his Estate and Survivors, Appellants, v. BERGMAN BROTHERS CONTRACTORS, INC., a Florida Corporation and Florida Blacktop, Inc., a Florida Corporation, Appellee.
    No. 3D01-3041.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Jay M. Levy, Miami; Daniels, Kashtan, Downs & Oramas, P.A. and Michael F. Kashtan, Coral Gables, for Appellant.
    Thomas E. Tookey (Coral Springs); O’Connor, Chimpoulis, Restani, Marrero & McAllister, P.A. and David R. Cassetty, for Appellees.
    Before SCHWARTZ, C.J. and GODERICH and GREEN, JJ.
   PER CURIAM.

Affirmed. See Slavin v. Kay, 108 So.2d 462 (Fla.1958).


author: SILBERMAN, Judge.

text:
    Jesus H. MAGANA, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4916.
    District Court of Appeal of Florida, Second District.
    May 7, 2003.
   SILBERMAN, Judge.

Jesus H. Magana challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Magana failed to present a facially sufficient claim, we affirm the trial court’s order.

In his motion, Magana alleged that the seven-year mandatory minimum term of imprisonment for trafficking in methamphetamine was illegally imposed. Magana based his claim on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Ma-gana’s motion is facially insufficient because he does not affirmatively allege that the date of his offense falls within the window created by Taylor. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003). However, we note that in its order, the trial court did not dismiss Magana’s motion as facially insufficient. Instead, it dismissed the motion without prejudice to refile when the Florida Supreme Court had reviewed the decision in Taylor. The trial court was apparently unaware that prior to the issuance of its order in the present case, the petition for review in Taylor had been voluntarily dismissed. See State v. Taylor, 821 So.2d 302 (Fla.2002) (table decision). Therefore, our affir-mance is without prejudice to any right Magana might have to file a facially sufficient rule 3.800(a) motion raising the same claim. See Sims, 838 So.2d 658.

Affirmed.

WHATLEY and SALCINES, JJ., Concur.