author: FARMER, C.J.

text:
    MORGAN STANLEY DW INC., and Jeffrey Jon, Appellants, v. Janet C. HALLIDAY, Elizabeth Ann Halliday, Susan Jane Halliday, Sarah Halliday Verrier, Appellees.
    No. 4D03-2875.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Rehearing Denied June 8, 2004.

      Peter J. Aldrich of Peter J. Aldrich, P.A., Palm Beach Gardens, for appellants.
    Randall W. Henley, West Palm Beach, for appellee Janet C. Halliday.
   FARMER, C.J.

The central issue in this appeal from an order denying arbitration is whether a non-signatory to an arbitration agreement is bound thereby as a third party beneficiary and must therefore arbitrate instead of suing in court. We affirm the denial and write to explain why this non-signatory is not bound to arbitrate.

Plaintiff in this lawsuit is the lifetime income beneficiary of a QTIP Trust. The Trust is managed solely by its Trustees' — -plaintiff has no power over the Trust assets and may not invade the principal. Some or all of the Trust assets were placed by the Trustees in an account with Morgan Stanley. The customer account agreement was executed by the Trustees and Morgan Stanley but not by plaintiff, who is not named as a party to the agreement. The customer account agreement includes an arbitration clause saying that the agreement is governed by the law of New York.

Litigation began when plaintiff sued the Trustees and Morgan Stanley for mismanagement of the Trust assets. Morgan Stanley responded with a motion to compel arbitration. The motion contends that the arbitration clause in the customer account agreement requires that all controversies between the account holder and Morgan Stanley be arbitrated. Citing both the Florida and United States Arbitration Codes (but not any New York law), Morgan Stanley prayed for an order compelling arbitration.

The trial Judge denied the motion. Her order explains:

“The defendant [Morgan Stanley] contends that the plaintiff is a third party beneficiary under the customer account agreement between [Morgan Stanley] and the trustees, and the plaintiff is therefore subject to the arbitration clause. In her complaint, plaintiff does not claim rights under the customer account agreement. At most the plaintiff is an incidental beneficiary of the agreement, not a third party beneficiary which would require that the parties to the agreement (Morgan Stanley and the trustees) intended to primarily and directly benefit the plaintiff. Tartell v. Chera, 668 So.2d 1105 (Fla. 4th DCA 1996). Also See Aetna Cas. & Sur. Co. v. Jelac Corp. 505 So.2d 37 (Fla. 4th DCA 1987). A party is an intended beneficiary only if the parties to the contract clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party. Caretta Trucking Inc. v. Cheoy Lee Shipyards Ltd., 647 So.2d 1028 (Fla. 4th DCA 1994).... Arbitration in this matter could result in extended litigation of the parties whereby the plaintiff would be litigating her claims in both arbitration and before this court, with the possibility of differing outcomes.”

Morgan Stanley appeals this decision.

We find no error in the trial judge’s analysis. There is nothing in the motion, the parts of the customer account agreement discussed in the motion papers, or in the Trust instrument that would suggest in any way that the Trustees’ decision to enter into the customer account agreement was intended to be for the primary and direct benefit of plaintiff. While it .is true that the Trust assets are for the benefit of the Trust beneficiaries — as to which the Trustees here are themselves the remainder beneficiaries and will take the corpus when plaintiff passes away— that fact hardly yields the conclusion that the customer account agreement between the Trustees and Morgan Stanley was done primarily for plaintiffs benefit. More important, it does not indicate that the arbitration clause was done for her primary and direct benefit — as one would suppose would be the rule in order to make a non-signatory to an arbitration agreement bound by somebody else’s manifestation of assent.

The rules as to third party beneficiaries are these. Unless a person is a party to a contract, that person may not sue — or, for that matter, be sued — for breach of that contract where the non-party has received only an incidental or consequential benefit of the contract. Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla.1985); Caretta Trucking Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028 (Fla. 4th DCA 1994). There is an exception when the non-party is specifically the intended third party beneficiary of the contract. Jacobson v. Heritage Quality Constr. Co., 604 So.2d 17 (Fla. 4th DCA 1992), rev. dismissed, 613 So.2d 5 (Fla.1993). A non-party is the specifically intended beneficiary only if the contract clearly express an intent to primarily and directly benefit the third party or a class of persons to which that party belongs. Aetna Cas. & Sur. Co. v. Jelac Corp., 505 So.2d 37 (Fla. 4th DCA 1987); Security Mut. Cas. Ins. Co. v. Pacura, 402 So.2d 1266 (Fla. 3d DCA 1981). To find the requisite intent, it must be established that the parties to the contract actually and expressly intended to benefit the third party; it is not sufficient to show only that one of the contracting parties unilaterally intended some benefit to the third party. Clark and Co. v. Dep’t of Ins., 436 So.2d 1013, 1016 (Fla. 1st DCA 1983). None of these principles are satisfied in this case.

Perhaps the whole idea of trying to bind a nonparty trust beneficiary to an arbitration agreement entered into by the Trustees with a securities portfolio manager is really what is wrong here. Maybe the attempt to metamorphose plaintiff into a “third party beneficiary” of this arbitration agreement really masks an attempt to make the Trustees the agent for plaintiff when they entered into the customer account agreement. But only a moment’s reflection should dispel that notion as well.

The Trustees are fiduciaries for plaintiff, not established agents. Their role is to manage the Trust assets for the benefit of those entitled to share in the Trust assets, both the income and the principal. That the Trustees may engage the services of an expert in managing Trust assets to assist them in the performance of their fiduciary responsibilities hardly makes them agents of the Trust beneficiary in order to bind her personally to their hiring of that assistance or to their purported waiver of her right of access to a court to seek redress for loss occasioned thereby.

Fiduciaries are generally not able to avoid the negligent performance of their own special responsibilities by handing them off to someone else. See State ex rel. Simmons v. Harris, 119 Fla. 375, 161 So. 374, 378 (1935) (“We think that it is so elementary as not to be questioned that a trustee holding a fund subject to specific disposition cannot legally create another trusteeship and pass the fund into the hands of, and control of, that newly created trustee, so as to place the fund beyond the reach of the [beneficiary] ... entitled to the trust fund.”); Thomas v. Carlton, 106 Fla. 648, 659, 143 So. 780, 785 (1932) (“Sometimes, circumstances are such that a trustee, in the performance of his duties, has to have the assistance of others. In cases where the employment of agents is authorized, or it is reasonably necessary for the performance of the duties of the trust, if the trustee, while acting prudently and with reasonable care, employs an agent, who is apparently honest and properly qualified, and reasonable supervision is used over him, the trustees will not be held responsible for loss or damage caused by the negligence or dishonesty of the agent. [c.o.] But, if the regular course of business in administering the trust does not require that the trustee part with the custody of the funds ... and a loss [is] thereby eventually sustained, the trustee will be liable to make such loss good.”); Mann v. Cooke, 624 So.2d 785 (Fla. 1st DCA 1993) (by law trustee may not delegate discretionary trust powers).

Consequently, in hiring Morgan Stanley to make the daily investment decisions for the Trust assets, the law of agency did not make their Trust beneficiary bound by a hiring decision the Trustees made principally for their own convenience. Even less so, for that matter, should the Trust beneficiary be bound by an incidental stipulation (such as an arbitration clause) to which the Trustees agreed in so contracting. Clearly therefore agency also supplies no legal basis to make this arbitration agreement binding on the Trust beneficiary.

As for arbitration agreements, which involve a waiver of a person’s right of access to the courts, binding a non-signatory to arbitrate under the theory of third party beneficiary is fraught with miscalculation and unfairness. For one thing, unless a manifestation of intent by the third party beneficiary to the arbitration clause is clear and indisputable, the non-party’s right of access may be lost by the unilateral decision of another without knowledge or consent. For another, it is difficult to understand how, as a general matter, the usual arbitration agreement is designed specifically to benefit a non-party. In this instance, any general doubt as to benefit is displaced by its specific absence, as the trial Judge found. Arbitration in this case — involving the alleged mismanagement by both Morgan Stanley and the Trustees of the Trust assets — will not shorten the dispute at all because the litigation will proceed against the Trustees anyway.

In any event, agreements to arbitrate must generally manifest the intent of the person bound thereby to arbitrate. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). Thus, the rule is that “no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate.” 750 So.2d at 636. In light of this rule of clarity of intent, “in the absence of express language in the parties’ contract mandating arbitration of such disputes,” arbitration should not be compelled. 750 So.2d at 642; and cf. First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (“Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.”). Using the First Options analysis, we conclude that whether a non-party to an arbitration agreement should nevertheless be bound by it even though there is no specific manifestation of assent to arbitration by the non-party is an esoteric issue, the existence of which is not likely to be sensed by most people contracting for the services of Morgan Stanley. Given the principle that a party can be forced to arbitrate only those matters one has specifically agreed to arbitrate, courts should avoid engaging in interpretation of the agreements of other parties in order to require non-parties to arbitrate. First Options, 514 U.S. at 945, 115 S.Ct. 1920.

For all we know from this bare bones motion and the above documents, the customer account agreement was more than likely primarily for the benefit of the Trustees. They may have thought that in relieving themselves of making the daily investment decisions for the management of those assets they could thereby lessen their personal culpability for mismanagement. We note that the Trustees are individuals related to the decedent from whose estate the QTIP trust was established to perform the promise of a prenuptial agreement. Perhaps these family Trustees are untrained or inexperienced in managing such assets. Maybe they are simply risk averse and would prefer to throw off the liability to someone else. Certainly, nothing in the record we have been given supports the contention made by the motion to compel arbitration that as a matter of law plaintiff should be required to arbitrate.

AFFIRMED.

GUNTHER and TAYLOR, JJ., concur.

      . Morgan Stanley points out that the title or name of the Trust is "QTIP TR UNA Walter Halliday Jr. FBO JC Halliday....” It argues that because the designation "FBO JC Halli-day” means "for the benefit of Janet C. Halli-day” we should therefore approve its third party beneficiary argument. We reject this argument because the title or name of the Trust itself hardly demonstrates that the beneficiary is a direct and primary beneficiary of the present customer account agreement, much less its arbitration clause. Similarly, we also reject Morgan Stanley’s companion argument that because Janet C. Halliday had a separate individual customer account agreement with an arbitration clause she is bound by the Trustee's contract. See Shearson Lehman Hutton Inc. v. Lifshutz, 595 So.2d 996 (Fla. 4th DCA 1992) (holding that fact that customer has other accounts as matter of law is insufficient to bind customer to arbitration in dispute over account on which customer had not signed).

      . We note, as the trial judge did, that plaintiff does not claim any right under the customer account agreement in her suit.

      . Indeed the thrust of plaintiff’s mismanagement claim is that the Trust assets were placed primarily in growth investments rather than income, thereby depriving the income beneficiary of the amount she was intended to realize, and also thereby increasing the size of the Trust corpus to be given over to the Trustees after she passes away.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Stephen MARTYAK, Appellant, v. Judith MARTYAK, Appellee.
    No. 4D03-2077.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Rehearing Denied June 8, 2004.

      John N. Buso, West Palm Beach, for appellant.
    No brief filed for appellee.
   POLEN, J.

This appeal arises from a final order finding Stephen N. Martyak in contempt for failing to pay alimony and ordering that he be taken into custody until he pays a purge amount of $19,977.60. Martyak raises four issues on appeal. We find three to be without merit and write only to discuss the claimed invalidity of the contempt order. For the reasons outlined below, we reverse the order of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.

On appeal Martyak contends his due process rights were violated by the court’s failure to admit any evidence on his ability to purge the arrearages before entering the contempt order. We agree.

The final judgment of dissolution entered June 24, 1991, ordered Martyak to pay $4,000 in monthly alimony. That judgment created a presumption, in subsequent proceedings, that Martyak had the ability to pay that amount. Bowen v. Bowen, 471 So.2d 1274, 1278 (Fla.1985). To overcome this presumption, the burden fell on Martyak. He could “dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which intervened since the time the order directing him to pay was entered, he no longer has the ability to meet his support obligations.” Id. at 1279. The Bowen opinion went on to explain:

Once the court finds that a civil contempt has occurred, it must determine what alternatives are appropriate to obtain compliance with the court order. If incarceration is deemed appropriate, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.

Id. (Emphasis added.)

In discussing the two step analysis of Bowen, this court has previously clarified that “the presumption of ability to pay which exists in the first step is not a substitute for the separate, affirmative finding of ability to pay required for incarceration.” Pompey v. Cochran, 685 So.2d 1007 (Fla. 4th DCA 1997) (internal quotations omitted).

Martyak points to Cleveland v. Cleveland, 841 So.2d 648 (Fla. 4th DCA 2003). Cleveland relied on Vazquez v. Vazquez, 827 So.2d 384 (Fla. 4th DCA 2002), where this court reversed a contempt order that failed to meet the requirements of the Florida Family Rules of Procedure. In Vazquez we held:

the order fail[ed] to comply with rule 12.615(d)(1), Florida Family Law Rules of Procedure, which provides:
An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based.

Id.

In the case at bar, the contempt order referred to the original Final Judgment requiring Martyak to pay the $4,000 in alimony and complied with the rule, as summarized in Vazquez. The order noted that a prior order of support was entered, that Martyak failed to pay part of the support ordered, that he has the ability to pay support, and that he willfully failed to comply with the order.

We do not find that the order is deficient for finding Martyak in contempt. However, having Martyak taken into custody as a result of his contempt was erroneous in light of the trial court’s failure to make separate affirmative findings that he has the ability to pay the purge amount, and the basis for such ability. In light of this error we reverse the order of the trial court and instruct that upon remand further proceedings take place that are consistent with this opinion.

REVERSED and REMANDED.

MAY, J., and DAMOORGIAN, DORIAN, Associate Judge, concur.


author: CASANUEVA, Judge.

text:
    William Chester NETHERLY and Myrtle A. Netherly, Appellants, v. STATE of Florida, Appellee.
    No. 2D02-2792.
    District Court of Appeal of Florida, Second District.
    April 16, 2004.
    Rehearing Denied June 3, 2004.

      William F. Esbary, Jr., Tampa, and Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellants.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

William C. and Myrtle A. Netherly, husband and wife, appear before this court for the third time. After their second appearance we reversed the judgments against them on several counts and remanded for resentencing. Netherly v. State, 804 So.2d 433 (Fla. 2d DCA 2001) (Netherly II). They now contend that on remand at the resentencing hearing the trial court misapplied or exceeded our directive in Netherly II, was vindictive in resentencing them, violated their double jeopardy rights, and imposed an unenforceable sentencing scheme. Mrs. Netherly also contends that her written judgment erroneously reflects a conviction for which she was acquitted. We affirm in part and reverse in part.

The facts underlying the charges stemming from the Netherlys’ failed residential construction business are fully set out in Netherly II. Of the eighteen counts charged, a jury found Mr. Netherly guilty of one first-degree felony, one second-degree felony, and twelve third-degree felonies; Mrs. Netherly was found guilty of one second-degree felony and ten third-degree felonies. Mr. Netherly was sentenced on all counts to concurrent five years’ imprisonment followed by ten years’ probation. Mrs. Netherly was sentenced on all her counts to concurrent four and one-half years’ imprisonment followed by ten years’ probation. On appeal in Neth-erly II, we reversed three of Mr. Netherly’s counts and reduced the degree of a fourth, leaving him with eleven third-degree felony convictions. We also reversed one of Mrs. Netherly’s counts and reduced the degree of a second, leaving her with ten third-degree felony convictions. After affirming in part and reversing in part, we remanded for resentencing because the split sentence originally imposed, five years’ incarceration followed by ten years’ probation, illegally exceeded the maximum statutory sentence for third-degree felonies, as well as the maximum permissible guidelines sentence. 804 So.2d at 440.

On remand from Netherly II, each defendant’s scoresheet resulted in the lowest possible guidelines sentence of a nonprison sanction, with a permitted sentence of up to twenty-two months in prison, primarily because neither had a prior record. Instead of the concurrent sentencing scheme originally imposed for all the counts, the trial court ordered them to serve five years’ probation on two counts, followed by five years’ probation on seven counts (six for Mrs. Netherly), followed by five years’ probation on the remaining two counts, nunc pro tunc to their original sentencing date, December 23, 1999, thus reaching by a different path the fifteen years’ overall state supervision originally imposed. The trial court’s reasoning included concern about the victims’ losses, which were substantial, and the need for restitution, adding that probation could be shortened with full restitution and releases from the victims.

The Netherlys advance various arguments against this latest sentencing scheme. However, we are not persuaded that the trial court was prohibited from imposing a consecutive sentencing scheme in lieu of the originally imposed concurrent sentences or that such consecutive sentencing, resulting in approximately the same length of time under state supervision, is vindictive under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The original sentencing scheme was apparently driven by the convictions for the first- and second-degree felonies. Here, however, the new sentencing scheme not only resulted in the same overall length of state supervision, but also achieved the court’s reasonable goal of monitoring their compliance with the restitution orders. We find further support for the court’s action in Norton v. State, 731 So.2d 762 (Fla. 4th DCA 1999).

In Norton, the defendant was originally convicted of an armed burglary and aggravated battery and sentenced to two concurrent fifteen-year departure sentences followed by ten years’ probation. The sentences were reversed on appeal because there were no findings to support the departure, and the case was remanded for resentencing within the guidelines. At re-sentencing, instead of concurrent sentencing, the trial court imposed eight years’ incarceration for the armed burglary followed by ten years’ probation for the aggravated battery. Judge Klein, writing for the court, found the new consecutive sentencing scheme permissible. He reasoned, first, that Pearce does not per se prohibit imposing consecutive sentences after concurrent sentences are reversed on appeal. Second, he noted that because the resen-tencing was more lenient than the first, the Pearce prohibition against vindictive sentencing was not violated. Norton, 731 So.2d at 763.

Here, we do not find that the Neth-erlys’ consecutive probationary terms are vindictive, given the strong need for restitution in their case, and that the fifteen years’ total probation for a multitude of crimes committed over a period of several years is no harsher than five years’ incarceration followed by ten years’ probation for higher degree crimes. The cases the Netherlys cite in support of their argument, Rogers v. State, 821 So.2d 461 (Fla. 2d DCA 2002), and Williams v. State, 686 So.2d 615 (Fla. 2d DCA 1996), are distinguishable in that the trial courts in those cases imposed a harsher sentence on re-sentencing.

Although we affirm the consecutive probationary terms, we agree with the Netherlys that there are errors in other parts of their sentencing scheme. At the original sentencing hearing, before the appeal in Netherly II, the trial court expressly granted credit for time served: 904 days for Mr. Netherly and 913 days for Mrs. Netherly. This is more than thirty months’ credit each. Also, Mr. and Mrs. Netherly each spent a short amount of time incarcerated after sentencing before being released on appeal bonds. All this credit must be applied to the probationary terms ordered to be served first. The Supreme Court in Pearce, 395 U.S. at 717, 89 S.Ct. 2072, expressly held that full credit must be awarded for past punishment in sentencing for the same crime. This is also required under Daniels v. State, 491 So.2d 543 (Fla.1986), where our supreme court, in deciding a conflict among the district courts, found that when a defendant has jail-time credit on a sentence that is to run concurrently with another sentence, the concurrent sentence must also reflect that credit. Id. at 544. See also Platt v. State, 827 So.2d 1064 (Fla. 2d DCA 2002) (holding that rescission of previously awarded jail credit is error). Justice Overton in Daniels went on to distinguish the situation of credit on concurrent sentences from the situation in which the defendant does not receive concurrent sentences on multiple charges. 491 So.2d at 545. Thus, the Netherlys’ first probationary term, for counts two and four, must be reduced by the amount of time they spent in jail or prison, including gain time, Oliver v. State, 556 So.2d 1247 (Fla. 2d DCA 1990), although credit will not be applied to the remaining probationary terms. Otherwise, by the end of their first term of probation, the Netherlys will have served more time than statutorily allowed for these third-degree crimes. In fact, it would appear that these sentences are now fully served as the first probationary term, imposed nunc pro tunc December 23, 1999, coupled with the mandated credit for time served exceeds five years.

One point raised by Mrs. Netherly alone is that she previously had split sentences resulting in fourteen and a half years under state supervision, which we reversed in Netherly II, but she now faces an overall fifteen years’ probation. She claims that this is, on its face, a vindictive sentence. We are not so persuaded, given that it matches her husband’s probationary terms and is a minimal enlargement compared to her original sentences.

The only remaining issue concerns scrivener’s errors appearing in the judgment and sentencing documents. As to Mrs. Netherly, they show her convicted of a count for which she was acquitted by the jury, and as to both defendants, these documents do not comport with the oral pronouncement of sentence. Upon remand, the trial court shall correct these errors without the necessity of either defendant’s presence.

Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.

FULMER and CANADY, JJ„ concur.

      . The first time they appeared before us they sought a writ of prohibition. We issued the writ and quashed that part of the trial court’s order denying their motion to dismiss a count of the second amended information. Netherly v. State, 710 So.2d 561 (Fla. 2d DCA 1997) (Netherly I). They were eventually tried and convicted on the fourth amended information.


author: BENTON, J. WOLF, C.J.,

text:
    Dr. Paul ZIMMERMAN, Dr. John W. Uribe, John Livoti, Helen Esterline, Don Reinhard, Jonathan D. Nitkin, Angela Daley, and Edna Buchanan, on behalf of themselves and all other persons similarly situated, Appellants, and Leonard Elias, Miami-Dade County Consumer Advocate, Intervenor, v. FLORIDA WINDSTORM UNDERWRITING ASSOCIATION, State of Florida Department of Insurance, and Honorable Tom Gallagher in his capacity as Insurance Commissioner, Appellees.
    No. 1D02-2896.
    District Court of Appeal of Florida, First District.
    April 20, 2004.
    Rehearing Denied June 2, 2004.
    See also 802 So.2d 1153.

      M. Stephen Turner, David K. Miller and Martin A. Fitzpatrick of Broad and Cassel, Tallahassee, for Appellants.
    Intervenor Leonard L. Elias, pro se.
    John Radey, Elizabeth McArthur and David A. Yon of Radey, Thomas and Yon, P.A., Tallahassee, for Appellee Florida Windstorm Underwriting Association.
    Steven H. Parton, Florida Office of Insurance Regulation, Tallahassee, for Ap-pellee Florida Department of Insurance.
   BENTON, J.

We have for review a final summary judgment and declaration entered in an action brought in circuit court, challenging the validity of an arbitrated insurance rate increase, demanding insurance premium refunds, and seeking declaratory and in-junctive relief. We affirm the trial court’s refusal to order refunds and denial of in-junctive relief, but reverse the judgment and declaration insofar as it declares that “the arbitration resulted in Department approval as a matter of law”; and vacate the judgment and declaration insofar as it adjudicates questions that we do not reach.

The plaintiffs below, coastal homeowners insured by defendant Florida Windstorm Underwriting Association (FWUA), proceeded as a statewide class. (Miami-Dade County Consumer Advocate Leonard Elias intervened on behalf of Dade County policyholders nevertheless.) Named as a defendant along with the Department of Insurance and the Insurance Commissioner, FWUA is an association of all insurers authorized to write property insurance in Florida, a nonprofit entity legislatively created to act as an insurer against windstorm damage for owners of residential property- in Florida who cannot obtain such coverage otherwise.

When, in antecedent proceedings, a panel of three arbitrators made a decision regarding FWUA’s rates under section 627.062(6), Florida Statutes (1999), the panel’s decision was “treated as the final approval of a rate filing,” subject only to limited review in circuit court under sections 682.13 and 14, Florida Statutes (1999). In pertinent part, section 627.062(6) provides:

(a) After any action 'with respect to a rate filing that constitutes agency action for purposes of the Administrative Procedure Act, an insurer may, in lieu of demanding a hearing under s. 120.57, require arbitration of the rate filing. Arbitration shall be conducted by a board of arbitrators consisting of an arbitrator selected by the department, an arbitrator selected by the insurer, and an arbitrator selected jointly by the other two arbitrators.... The department and the insurer must treat the decision of the arbitrators as the final approval of a rate filing....
(b) Arbitration under this subsection shall be conducted pursuant to the procedures specified in ss. 682.06-682.10. Either party may apply to the circuit court to vacate or modify the decision pursuant to s. 682.13 or 682.14. The department shall adopt rules for arbitration under this subsection, which rules may not be inconsistent with the arbitration rules of the American Arbitration Association as of January 1,1996.

On February 3, 2000, the arbitration proceedings FWUA instituted in connection with the application it had filed on April 30, 1999, eventuated in a split decision by the arbitration panel, approving, as modified, the rate increase FWUA had requested. The Department of Insurance applied to circuit court for an order vacating the arbitration award, but the circuit court declined to vacate the arbitrators’ decision. On the Department’s appeal of the circuit court’s order, we affirmed. Dep’t of Ins. v. Fla. Windstorm Undenvriting Ass’n, 802 So.2d 1153 (Fla. 1st DCA 2001).

The declaratory judgment proceedings that have given rise to the present appeal were instituted separately in circuit court. A belated, collateral attack in circuit court on an insurance rate approved by the Department of Insurance in conformity with the Administrative Procedure Act would not comport with the requirement that administrative remedies be exhausted. See Spink v. McConnell, 529 So.2d 813, 814 (Fla. 1st DCA 1988); Gulf Coast Home Health Servs. of Fla., Inc. v. Dep’t of HRS, 513 So.2d 704, 706 (Fla. 1st DCA 1987). “Generally, where administrative remedies are available, it is improper to seek relief in the circuit court before those remedies are exhausted. Schl. Bd. of Flagler County v. Hauser, 293 So.2d 681 (Fla.1974); Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 689 So.2d 1127, 1129 (Fla. 1st DCA 1997); Dep’t of Envtl. Prot. v. PZ Constr. Co., Inc., 633 So.2d 76, 78 (Fla. 3d DCA 1994).” Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 792 So.2d 539, 545 (Fla. 4th DCA 2001). .

But the present case is not and does not purport to be an attack on agency action even colorably taken under the Administrative Procedure Act. The appellants are aligned with, not in opposition to, the Department of Insurance in asserting that arbitration was an improper means of deciding whether and in what amount FWUA’s premiums should be raised. They share with the Department the view, which we today embrace, that the Department has never given its approval of the rate hike, and that FWUA’s resort to arbitration as a means of raising rates was a “material error ... made by the insurer.” § 627.062(2)(g), Fla. Stat. (2003).

The appellants contend not only that arbitration of proposed rate increases did not'comply with FWUA’s Plan of Operation; but also that the rate increase was invalid because no public hearing was held on the proposed increase, as allegedly required by section 627.0629(7), Florida Statutes, and Rule 4-166.051, Florida Administrative Code; and that the statutes allowing arbitration of proposed rate increases were unconstitutional because they impermissibly delegated regulatory and legislative authority to private persons, violated separation of powers requirements, and deprived insureds of property without due process of law. On all three theories, appellants seek a determination that FWUA’s rate increase, already finally adjudicated and implemented, must be refunded because of the manner in which the increase was decided upon. It is necessary to address the first theory only.

Under FWUA’s Plan of Operation, insurance rate increases proposed by FWUA require approval by the Department of Insurance. Even after the Legislature amended the Insurance Code to provide that FWUA “may require arbitration of a rate filing under s. 627.062(6),” ch. 97-55, § 5, at 332, Laws of Fla. (codified at § 627.351(2)(b)(5)(b), Fla. Stat. (1997)), the Department of Insurance, while, revising FWUA’s Plan of Operation in other respects, left intact provisions calling for rates “approved by the Department” and for rate increases only “upon approval of the Department.” Fla. Admin. Code Ann. r. 4J-1.001 (2001). FWUA’s resort to section 627.062(6), Florida Statutes (1997), after the Department of Insurance disapproved the request for rate increases FWUA filed on April 30, 1999, was not authorized, therefore, because FWUA’s Plan of Operation required departmental approval or assent, not an arbitration award.

That FWUA is governed by its Plan of Operation is set out in FWUA’s Articles of Agreement, which the Department of Insurance approved by an administrative rule originally promulgated in 1983. See Dep’t of Ins. v. Fla. Ass’n of Ins. Agents, 813 So.2d 981, 982 (Fla; 1st DCA 2002) (FWUA “functions pursuant to a plan of operation, which must ultimately be reviewed and approved by the Department.”); Fla. Admin. Code Ann. r. 4J-1.001 (2001). Section VI of the Plan requires that the Department assent to FWUA’s rates: “The rates, rating plans and rating rules applicable to Windstorm Insurance written by the Association ... shall be those approved for use by the Association by the Department [of Insurance].” Section VIII of the Plan provides that “rates of the Association shall comply with ... orders of the Department.” In its answer to amended complaint, the Department “admitted that the FWUA’s Plan of Operation does not authorize the arbitration of its rates.”

The statutory amendment permitting rate arbitration was permissive, not mandatory, and did not alter FWUA’s Plan of Operation. The Plan of Operation was and is an administrative rule, and it is, of course, “ ‘axiomatic that an administrative rule cannot ... contravene the provisions of a statute.’ State, Dep’t of Bus. Reg. v. Salvation Ltd., 452 So.2d 65, 66 (Fla. 1st DCA 1984); Willette v. Air Prods., 700 So.2d 397, 401 (Fla. 1st DCA 1997) (‘A statute takes precedence over a rule.’).” See Clemons v. State Risk Mgmt. Trust Fund, 870 So.2d 881, 884 (Fla. 1st DCA 2004) (Benton, J., concurring). But FWUA’s Plan of Operation is also a controlling corporate document, analogous to a private corporate charter, a private association’s articles of incorporation, or a private entity’s bylaws. See Word of Life Ministry, Inc. v. Miller, 778 So.2d 360, 363 (Fla. 1st DCA 2001) (holding that corporation must act in accordance with its charter and bylaws); S & T Anchorage, Inc. v. Lewis, 575 So.2d 696, 698 (Fla. 3d DCA 1991) (holding that an association could not “act in any way not authorized in its articles of incorporation or bylaws”). While, once the statute was amended, FWUA could have amended its Plan of Operation and the Department of Insurance could have amended its rule to allow FWUA to elect rate arbitration, the Plan and rule were never amended to confer such authority.

As for relief, if any, in the form of an order “that premiums charged each policyholder constituting the portion of the rate above that which was actuarially justified be returned to such policyholder in the form of a credit or refund,” the Department of Insurance, not the circuit court, has responsibility for reviewing insurance rates and rate increases and determining whether “a rate or rate change is excessive, ... or unfairly discriminatory.” § 627.062(2), Fla. Stat. (2003). In this connection, the Insurance Code provides:

(g) The office may at any time review a rate, rating schedule, rating manual, or rate change; the pertinent records of the insurer; and market conditions. If the office finds on a preliminary basis that a rate may be excessive, inadequate, or unfairly discriminatory, the office shall initiate proceedings to disapprove the rate and shall so notify the insurer. However, the office may not disapprove as excessive any rate for which it has given final approval or which has been deemed approved for a period of 1 year after the effective date of the filing unless the office finds that a material misrepresentation or' material .error was made by the insurer or was contained in the filing. Upon being so notified, the insurer or rating organization shall, within 60 days, file with the office all information which, in the belief of the insurer or organization, proves the reasonableness, adequacy, and fairness of the rate or rate change. The office shall issue a notice of intent to approve or a notice of intent to disapprove pursuant to the procedures of paragraph (a) within 90 days after receipt of the insurer’s initial response. In such instances and in any administrative proceeding relating to the legality of the rate, the insurer or rating organization shall carry the burden of proof by a preponderance of the evidence to show that the rate is not excessive, inadequate, or unfairly discriminatory. After the office notifies an insurer that a rate may be excessive, inadequate, or unfairly discriminatory, unless the office withdraws the notification, the insurer shall not alter the rate except to conform with the office’s notice until the earlier of 120 days after the date the notification was provided or 180 days after the date of the implementation of the rate. The office may, subject to chapter 120, disapprove without the 60-day notification any rate increase filed by an insurer within the prohibited time period or during the time that the legality of the increased rate is being contested.
(h) In the event the office finds that a rate or rate change is excessive, inadequate, or unfairly discriminatory, the office shall issue an order of disapproval specifying that a new rate- or rate schedule which responds to the findings of the office be filed by the insurer. The office shall further order, for any “use and file” filing made in accordance with sub-paragraph (a)2., that premiums charged each policyholder constituting the portion of the rate above that which was actuarially justified be returned to such policyholder in the form of a credit or refund....

Id. Where the Department has not acted, it is not for the circuit court to order the monetary relief appellants seek in conjunction with the present suit for declaratory judgment. No cause of action in circuit court exists for refunds of and credits for insurance premiums paid in conformity with rates statutorily deemed approved (even if not actually approved) by the Department of Insurance. At least in the first instance, appellants should address their requests for such relief to the Department of Insurance, which does have authority to order credits or refunds, if any are due.

Accordingly, we affirm the trial court’s refusal to order refunds and denial of in-junctive relief, but reverse the judgment and declaration insofar as it declares that “the arbitration resulted in Department approval as a matter of law,” and vacate the judgment and declaration insofar as it construes section 627.0629(7), Florida Statutes, and Rule 4-166.051, Florida Administrative Code, and insofar as it adjudicates the constitutionality of certain provisions of the Florida Insurance Code. See, e.g., Lykes Bros., Inc. v. City of Plant City, 354 So.2d 878, 881 (Fla.1978) (“[W]e find it unnecessary to reach the constitutional question on which the trial judge ruled.”).

ERVIN, J., concurs; WOLF, C.J., concurs with opinion.

WOLF, C.J.,

Concurring.

I cannot agree with the reasoning of the majority. Section 627.062(6)(a), Florida Statutes (1999), requires that “[t]he department and insurer must treat the decision of the arbitrators as the final approval of a rate filing.” The majority determines that the statute may not be enforced as written because it conflicts with the Florida Windstorm Underwriters Association Plan of Operation. That plan was adopted by rule by the Department of Insurance. Fundamental administrative law dictates that an administrative rule may not conflict with the unambiguous dictates of a statute. See Cleveland v. Fla. Dep’t of Children & Families, 868 So.2d 1227 (Fla. 1st DCA 2004) (holding that a rule that conflicts with a subsequent adopted statutory amendment may not be enforced). The majority’s determination that the plan overrides the statute is erroneous.

I concur with the majority’s decision, however, that the arbiter does not have final authority in the matter. I would find section 627.351(2)(b)(5)(b), and section 627.062(6), Florida Statutes, unconstitutional. Ratemaking is a legislative policy function of government. See Chiles v. Public Serv. Comm’n Nominating Council, 573 So.2d 829, 832 (1991); S. Florida Cargo Carriers v. Dep’t of Bus. & Prof'l Pilotage Rate Review Bd., 738 So.2d 391 (Fla. 3d DCA 1999) rev. denied 766 So.2d 223 (Fla.2000). Such functions cannot be delegated to private parties pursuant to Article III, Section 1, and Article II, Section 3 of the Florida' Constitution which contemplate that the legislative power of the state will be exercised by the legislature or be properly delegated with sufficient guidelines to an appropriate governmental agency. The statutory sections which permit private arbiters to set FWUA’s rates constitute an illegal delegation of the sovereign legislative power of the state.

      . FWUA's Plan of Operation required departmental approval, not an arbitration award. By requiring that the arbitration decision be "treated as” the final approval of a rate filing, section 627.062(6)(a) distinguished between departmental approval and an arbitration decision, and necessarily recognized them as two different things.

      . That the court below even had jurisdiction is not wholly free from doubt, although no party to the appeal raises the question. A declaratory judgment action may be main-tamed only where there is an actual, bona fide, controversy not already adjudicated. See Yell v. Healthmark of Walton, Inc., 772 So.2d 568, 570 (Fla. 1st DCA 2000).

      . Subsequent amendments to the Insurance Code render the prospective injunctive relief appellants seek unnecessary. See ch.2002-240, § 2, at 1782, Laws of Fla. (deleting authorization for arbitration).


author: PER CURIAM.

text:
    Susan MONTALBANO, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, and Superior Shade & Blind Co., Appellees.
    No. 4D03-622.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    M. Kate Boehringer of Garcia, Elkins & Boehringer, P.A., West Palm Beach, for appellant.
    John D. Maher, Tallahassee, for appel-lee, Unemployment Appeals Commission.
   PER CURIAM.

Appellant was terminated from her employment as a sales associate with a shade and blind company. She applied for unemployment benefits and was denied based on her employer’s report that she was terminated for “falsification of work related documents.” She appealed the decision and a hearing was held.

At the hearing, appellant’s former supervisor and CEO of the company, Alex Fryburg (Fryburg), testified about an argument that he had with appellant over a work order she had prepared incorrectly. When he attempted to discuss the error with her, she “blew up” and began yelling. According to Fryburg, he asked appellant to calm down and she refused so he told her to either calm down or quit. When she refused to quit, he fired her for insubordination.

Fryburg agreed that appellant was fired because she lost her temper and not because she falsified documents. He submitted documents showing that appellant had filled out certain commission forms incorrectly, but he stated that he did not find the forms until he was looking through a file after she was terminated. Even though appellant could not have been fired because of the commission forms because Fryburg did not know about the forms at the time of her termination, he admitted having written on the unemployment benefits claim form that she had been terminated for falsifying records.

Appellant testified, acknowledging that she became angry when her employer wanted to discuss the incorrect sales order again because they had previously discussed the order several times. According to appellant, after the two exchanged angry words, Fryburg asked her if they would be able to have an intelligent conversation and appellant said, “no.” Appellant explained that the two were exchanging insults and “it got totally out of control, because it was — it was hot dog on both sides.” At that point, according to appellant, Fryburg asked for appellant’s keys. When she asked whether he was firing her, he replied, “no, I just want you out of here.” When appellant refused to turn over the keys and did not leave, Fryburg said, “okay, you’re fired.”

The appeals referee issued a decision finding that appellant was disqualified from receiving benefits because she was discharged for misconduct connected with work, specifically, for failure to obey the owner’s order that she hand over the keys. The referee concluded that the owner’s request for the keys was a reasonable and valid request to protect his business because the claimant was “totally out of control” and her failure to comply constituted misconduct connected with work.

On appeal, the Unemployment Appeals Commission (UAC) found that the referee’s findings were supported by competent, substantial evidence, and affirmed the decision. Upon review, we reverse the decision denying appellant benefits because she was denied due process and because the referee’s findings are not supported by the evidence.

First, we note that the referee’s findings are not supported by the evidence. Although it is clear that some sort of verbal altercation took place between appellant and her employer, there was no evidence that appellant “got totally out of control.” Contrary to the referee’s finding, appellant’s unrebutted testimony was that she and her employer were arguing and “it got totally out of control.” Considering the entirety of appellant’s testimony, it is obvious that appellant was referring to the situation or the conversation and not herself.

Next, we address appellant’s claim that she was denied due process because the appeals referee allowed her employer to testify that she was terminated because she lost her temper and not because she falsified documents, the original reason listed on the benefits claim form. The UAC asserts that there was no procedural error because, in any event, appellant had notice of the actual legal issue to be addressed at the hearing, that is, whether she was discharged for misconduct connected with work.

“Due process requires that the claimant receive proper notice of the issues to be heard or expressly waive such notice; otherwise, the claimant is deprived of a fair hearing.” Smith v. Unemployment Appeals Comm’n, 751 So.2d 639 (Fla. 1st DCA 1999)(where claimant was noticed that he was denied benefits because the employer had made a bona fide offer of other work before phasing out his job; however, at the hearing, employer was allowed to testify that benefits should be denied because claimant was discharged for misconduct connected with work, court held that claimant was denied due process and appeals referee was not authorized to consider the additional claim); see also Penton v. Royal Crown Bottling Co., 646 So.2d 267 (Fla. 1st DCA 1994)(claimant who was discharged for alleged failure to follow supervisor’s directions to service certain customers was entitled to new evi-dentiary hearing where employer introduced into evidence complaints filed by various customers and claimant had no notice of such evidence). The UAC argues that appellant had notice, generally, that she was discharged for misconduct connected with work and it is inconsequential that her employer was allowed to change his mind during the hearing as to the exact conduct which led to appellant’s termination. We reject that argument.

Appellant attended the hearing with the understanding that she would have to defend the allegation that she falsified documents and not the allegation that she argued with her employer and was insubordinate on the day she was fired. Appellant’s request for benefits was initially denied because the employer indicated she had falsified documents. The denial of benefits on that ground was what appellant appealed. Based on Fryburg’s admission at the hearing that appellant was not terminated for falsifying documents, we reverse the order denying her claim and remand with directions that she be awarded benefits.

REVERSED AND REMANDED.

STEVENSON', SHAHOOD and MAY, JJ., concur.

      . Specifically, the referee found, in pertinent part:
      The claimant became, in her own words, “very upset” and "totally out of control” because of the continual criticism over the one order and her general performance....

      ... The unrebutted testimony of the claimant is that during the argument on October 10, 2002 she was "totally out of control” and refused to hand over the keys when requested by the owner, even after being assured she was not being discharged.


author: WELLS, Judge.

text:
    James WILSON a/k/a Harold Clark, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1505.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.

      Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before LEVY, SHEVIN, and WELLS, JJ.
   WELLS, Judge.

James Wilson appeals an order denying his 3.850 motion for post conviction relief. We remand for clarification of the sentencing order at issue.

This case involves criminal charges against Wilson in lower court case number 01-8185 in which he was charged with possession of cocaine with intent to sell/deliver and with possession of marijuana with intent to sell/deliver. Wilson elected to plead guilty to these charges in exchange for a sentence of 59.25 months in prison. At the time of the plea, Wilson was on community control from a seven year prison sentence (with a three year minimum mandatory) in an earlier case, case number 94-9233, in which he had been convicted of attempted second degree murder. The transcript of the plea hearing in the instant case indicates that the trial court was under the impression that Wilson had already completed his seven year sentence in case number 94-9233. Specifically, the trial judge stated “Seven years, he’s already out?” To which the State responded, “yes.” Neither Wilson nor his attorney corrected this statement nor did anyone advise the trial court that Wilson was still serving a portion of his sentence in the 1994 case. In sentencing Wilson to the 59.25 months agreed, the trial court assured Wilson that “no one here can tell you the exact amount of time you will serve, other than to tell you that you will not serve in access [sic] of the time in which [sic] you are being sentenced to.”

Wilson maintains that in accepting the plea, it was his understanding, as supported by both the trial court’s comments and its failure to indicate whether this sentence was to run concurrent with or consecutive to any other or existing sentence, that he would be serving no more than 59.25 months in prison. He seeks relief here because the Department of Corrections has now tacked the 59.25 month sentence in this case onto his existing seven year sentence in case number 94-9233 for a total of 11.25 years. See § 921.16, Fla. Stat. (2003) (“[sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently ”) (emphasis added).

Because the trial court could not have made a decision on whether Wilson’s sentence should run concurrently or consecutively absent knowledge of the true status of his prior sentence in case number 94-9233, we remand for a determination as to whether the 59.25 months in this case is to run concurrent with or consecutive to the seven year sentence in 94-9233. See Byrd v. State, 853 So.2d 1103 (Fla. 4th DCA 2003)(remanding with instructions for the trial court to exercise its discretion and reconsider the imposition of a consecutive sentence after finding that at sentencing, trial court was under misimpression that it was obligated to impose a consecutive sentence.)

Considering the trial court’s statements, should the court below conclude on remand that the sentence in 01-8185 and 94-9233 are to run consecutively, Wilson must be accorded the opportunity to -withdraw his plea and to proceed to trial. See Fla. R.Crim. P. Rule 3.850(a)(5)(providing grounds for claims for relief .from judgment include “[t]he plea was involuntary”); Boles v. State, 827 So.2d 1073, 1074 (observing “[generally, when a defendant is incorrectly advised of the maximum sentence, he should be allowed to withdraw his plea”); Mantle v. State, 592 So.2d 1190, 1193 (Fla. 5th DCA 1992)(concluding “if the record reveals a reasonable basis to conclude that a defendant was misled by a statement at the plea hearing made by the judge or by one or both of the attorneys (defense counsel or prosecutor) he should be permitted to withdraw his plea and go to trial”).

Remanded with instructions.

      . This motion was filed under two case numbers, 94-9233 and 01-8185. The trial court correctly found that as to case number 94-9233, Wilson’s motion was untimely. It was, however, timely as to case number 01-8185.


author: FLETCHER, Judge.

text:
    Osborne COCKETT, Appellant, v. The STATE of Florida, Appellee.
    No. 03-1164.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Bennett H. 'Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   FLETCHER, Judge.

Osborne Cockett appeals his conviction and sentence for robbery, alleging error in the trial court’s denial of his motion for a mistrial. Cockett contends that he was entitled to a mistrial based on the prosecutor’s improper closing argument. We find this contention to be without merit and affirm the conviction and sentence.

Cockett was arrested and tried on a charge of robbery and battery arising from a shoplifting incident at a Home Depot. The state’s case relied on the testimony of the two security guards who detained him. One of the guards testified that he saw Cockett take the merchandise from the electrical department of the store and place it inside his pants. The two guards followed Cockett to the garden section of the store where Cockett and his companion exited the store without paying for the merchandise. The guards identified themselves as store security, found the stolen merchandise on Cockett’s person, and proceeded to arrest him.

In his defense, Cockett presented the testimony of the companion who had accompanied him to Home Depot. This witness stated that Cockett did not take any merchandise from the store, but admitted that at one point she went to the bathroom, leaving him alone. She testified that she accompanied Cockett to the garden department where they intended to buy a part for a weed eater, but that they left the store after determining they did not have enough money for the item. She further testified that upon exiting the store Cockett was attacked by two individuals and that she did not see any stolen merchandise during the ensuing altercation.

Cockett takes issue with part of the prosecutor’s closing comments, which we set forth as follows:

“[PROSECUTOR]: Now, the State’s position is that exactly what happened is how we brought it to you. The defendant walked in, that he stuck the smoke alarm — it’s a smoke alarm; it’s just a smoke alarm — he stuck the smoke alarm in his pants and walked out the door and he got caught.
It’s not reasonable that what happened was that nothing happened, he didn’t take anything and that it was, in fact, the young trainee on his first day on the job — you saw how big he was— the first day on his job, he was told directly not to do anything or get involved, to run after — and I did get animated on cross examination, I couldn’t believe what she was saying.
[DEFENSE COUNSEL]: Objection, Judge.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Reserve a
motion, Judge.
THE COURT: Reserve on the motion.
[PROSECUTOR]: That the State has the burden of proof in this case. They don’t have to prove anything.
What the State’s position is, is that it wasn’t reasonable what she was saying. That what she was saying was that the new trainee was the one who attacked him. It just doesn’t make sense.”

T. 480^481. Predominantly, Cockett claims the prosecutor’s statement “I couldn’t believe what she was saying” was an improper statement of the prosecutor’s personal belief which should have resulted in a mistrial.

We conclude to the contrary. The prosecutor was attempting to present a conclusion which the jury could reasonably draw from the evidence. In Craig v. State, 510 So.2d 857, 865 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988), the Florida Supreme Court held:

“Appellant argues that the prosecutor improperly made repeated references to defendant’s testimony as being untruthful and to the defendant himself as a ‘liar.’ It may be true that the prosecutor used language that was somewhat intemperate but we do not believe he exceeded the bounds of proper argument in view of the evidence. When counsel refers to a witness or a defendant as being a ‘liar,’ and it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence. It was for the jury to decide what evidence and testimony was worthy of belief and the prosecutor was merely submitting his view of the evidence to them for consideration. There was no impropriety.”

The First District Court informed us in Perry v. State, 718 So.2d 1258, 1260 (Fla. 1st DCA 1998):

“It is well-established that prosecutorial comments, such as using the word ‘lie,’ when commenting on appellant’s testimony, or characterizing the words of appellant as not those of an ‘innocent man’ when commenting on appellant’s verbal statement to an investigating police officer as set forth in testimony by that officer and other eyewitnesses, and not denied by appellant on the stand, are not improper.”

Thus the Fourth District Court in Brown v. State, 678 So.2d 910, 912 (Fla. 4th DCA 1996) stated:

“It is clearly not improper for either counsel in closing argument to characterize specific witnesses as liars, so long as counsel relates the argument solely to the testimony of the witnesses and evidence in the record.”

In Murphy v. International Robotic Sys., Inc., 766 So.2d 1010, 1028-29 (Fla.2000), the supreme court held that it was not improper “for counsel to state during closing argument that a witness ‘lied’ or is a ‘liar,’ provided such characterizations are supported by the record.” The court further stated that “If the evidence supports such a characterization, counsel is not im-permissibly stating a personal opinion about the credibility of a witness, but is instead submitting to the jury a conclusion that reasonably may be drawn from the evidence.” 766 So.2d at 1029. The court also discussed the use of the personal pronoun during closing argument. “When determining whether counsels’ use of the personal pronoun “I” is improper, judges must not place form over substance; it must be understood that trial counsel is required to analyze the evidence and present reasonable interpretations and inferences based on the evidence to the jury.” 766 So.2d at 1029.

In this case, the jury was presented with clearly conflicting evidence from the witnesses. In closing argument, the prosecutor was urging the jurors to disbelieve the defense witness’ version of the events in light of all the evidence presented. While the prosecutor’s single statement of personal belief (“I couldn’t believe ... ”) may have stepped over the line, the defense’s objection was sustained and no immediate curative instruction was requested. The statement certainly did not vitiate the entire trial thus was no ground for a mistrial. We, therefore, affirm the judgment below.

Affirmed.


author: GODERICH, Judge.

text:
    Gregory T. DORSETT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-420.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Rehearing Denied May 19, 2004.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, and John H. Lipinski, for appellant.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.

      Before GERSTEN, GODERICH, and FLETCHER, JJ.
   GODERICH, Judge.

The defendant, Gregory Tyrone Dorsett, appeals from a final judgment of convictions and sentences. We affirm, in part, and reverse, in part.

Following a jury trial, the defendant was found guilty of five counts of armed robbery with a firearm, five counts of false imprisonment with a firearm, and possession of a firearm in the commission of the same robbery. The defendant was adjudicated guilty and sentenced to life in prison for the five counts of robbery with a firearm and thirty years in prison for the five counts of false imprisonment with-a firearm. The defendant was also sentenced to five years in prison for unlawful possession of a firearm, but this sentence was suspended. This appeal follows.

The defendant contends that the trial court erred by convicting and sentencing him to both robbery with a firearm and the separate offense of possession of a firearm in the commission of the same robbery. In response, the State concedes that the trial court erred by adjudicating the defendant guilty of both robbery with a firearm and unlawful possession of a firearm in commission of the same robbery. The State, however, argues that pursuant to Brannon v. State, 850 So.2d 452 (Fla.2003), the defendant cannot raise this error on appeal because he did not object to the sentence imposed at the time of sentencing and also failed to file a motion under Rule 3.800(b)(2), Florida Rules of Criminal Procedure. The State also argues that following the disposition of this appeal, the defendant may seek to correct the error under Rule 3.800(a). We find that the State’s reliance on Brannon and Rule 3.800(b)(2) is misplaced, and agree with the position asserted by the defendant.

Rule 3.800(b)(2) pertains to motions to correct sentencing errors while an appeal is pending. In Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, and 9.600, 761 So.2d 1015, 1019 (Fla.1999), the Florida Supreme Court stated that

comments to the proposed rule [3.800] defines a “sentencing error” as including “harmful errors in orders entered as a result of the sentencing process.” ... Thus, a party can correct an illegal sentence through a rule 3.800(b) motion, or alternatively, following the appeal, a party may file a 3.800(a) motion to correct the sentence in the trial court.

Here, the error that the defendant complains of did not occur during the sentencing process. The defendant is not arguing that the suspended sentence that was imposed for the possession of a firearm count was erroneous. Rather, he argues that his conviction for possession of a firearm must be vacated. The fact that the suspended sentence will also be vacated when the conviction is vacated does not turn the alleged error into a “sentencing error.” Therefore, Brannon and Rule 3.800(b)(2) are inapplicable to the present case.

Even though the defendant failed to object to the dual convictions at trial, the defendant can properly raise this issue on appeal. See Haynes v. State, 828 So.2d 457 (Fla. 4th DCA 2002)(holding that “double jeopardy is a fundamental error which can be raised for the first time on appeal”); Grene v. State, 702 So.2d 510, 511 (Fla. 3d DCA 1997)(en banc)(“We treat the entry of the dual convictions as fundamental error and allow the defendant to raise the double jeopardy issue on appeal, even though there was no objection in the trial court.”). As noted earlier, the State concedes that when a robbery conviction is enhanced because a firearm was used during the commission of the robbery, a defendant cannot be adjudicated guilty of both robbery with a firearm and possession of a firearm in commission of the same robbery. Cleveland v. State, 587 So.2d 1145 (Fla.1991); Bufford v. State, 803 So.2d 914 (Fla. 3d DCA 2002); Buffington v. State, 776 So.2d 960 (Fla. 3d DCA 2000).

We find that the defendant’s remaining arguments on appeal lack merit. Therefore, we vacate the defendant’s conviction for possession of a firearm in the commission of the robbery, but affirm the defendant’s remaining convictions and sentences.

Affirmed, in part, and reversed, in part.

      . Rule 3.800(b)(2) provides, in part, as follows:
      (b) Motion to Correct Sentencing Error. A motion to correct sentencing error, including an illegal sentence, may be filed as allowed by this subdivision.... The motion must identify the error with specificity and provide a proposed correction....
      (2) Motion Pending Appeal. If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party's first brief is served....

      . Rule 3.800(a) provides:
      (a) Correction. A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief, provided that a party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal.


text:
    Reinardo GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1746.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Richard Docobo, for appellant.
    Charles J. Crist, Jr., Attorney General, and Annette M. Lizardo, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH and FLETCHER, JJ.
   PER CURIAM.

The defendant, Reinardo Garcia, appeals from his convictions and sentences for sale of cocaine and trafficking in cocaine arguing that the trial court abused its discretion by admitting into evidence the cocaine seized from both transactions without requiring the State to establish a complete chain of custody. We affirm based on our finding that the State was not required to establish a complete chain of custody where the record does not demonstrate that there was a probability of tampering with the evidence. Davis v. State, 788 So.2d 308, 310 (Fla. 5th DCA 2001); Creme v. State, 752 So.2d 1238 (Fla. 3d DCA 2000).

Affirmed.


author: KLEIN, J.

text:
    MADNESS, L.P., Appellant, v. DiTOCCO KONSTRUCTION, INC., Appellee.
    No. 4D03-1697.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Rehearing Denied June 3, 2004.

      Gerald F. Rickman and John R. Whittles of Richman, Greer, Weil, Brumbaugh, Mirabito & Christensen, P.A., West Palm Beach, for appellant.
    Jeffrey L. Kronengold of Gillespie, Goldman & Kronengold, P.A., Ft. Lauderdale, for appellee.
   KLEIN, J.

Stopping payment on a check with intent to defraud can, by statute, subject the maker to triple the amount owed. In this case a property owner planning improvements issued a check for advance payment to a general contractor, but several days later, before the job was started, stopped payment and notified the contractor not to proceed. We conclude that there could have been no intent to defraud.

We review the facts in a light most favorable to the contractor, as we are reviewing the denial of a motion for directed verdict, Gersh v. Cofman, 769 So.2d 407 (Fla. 4th DCA 2000).

The owner, which operates a restaurant, wanted to renovate in 2002, and the work had to be completed in time for a November wedding. The contractor, DiTocco, was selected as the low bidder in July, 2002, and submitted a written contract to the owner. Because of the wedding the owner wanted a specific date for “final completion;” however, the contractor was willing to agree only to “substantial completion.” Drafts of contracts involving that issue, as well as others, were sent back and forth in July and early August.

Because of concerns about the contractor completing the project on time, the owner requested a liquidated damages clause which the contractor resisted. There was a telephone conversation on August 15, in which the contractor advised that it would agree only to a substantial completion date, not a final completion date, and no liquidated damages. The owner agreed to some, but not all of the contractor’s proposals.

On August 17, a Friday, the contractor sent a fax to the owner, and in response the owner’s lawyer left a telephone message agreeing to some of the changes and suggesting alternatives to others. The owner’s lawyer then notified the owner that “we are done,” and that the contractor wanted to be reimbursed for skylights it had ordered and had paid for. The owner then sent a check for $57,000, which was twenty percent of the total contract price, to the contractor. The contractor apparently received the check on Monday, August 20.

On Monday, August 20, the owner’s lawyer faxed the contractor the changes with which the owner agreed and asked if they were acceptable. The next day the contractor’s lawyer called and said the contractor had not agreed to the “final completion” language, and that this issue was a “deal killer.” On Wednesday, August 22, the owner’s lawyer informed the contractor’s lawyer by telephone, and the contractor by fax, that the owner was no longer interested in having the contractor do the renovations and was revoking its offer to form a contract. That same day the owner notified the bank to stop payment on the check.

The next day the contractor’s lawyer faxed a letter stating that a contract existed and consideration had been paid and accepted. The owner’s lawyer responded that there was no agreement because of the final completion issue, and, in any event the contractor was obligated to mitigate damages. The contractor first became aware that payment had been stopped on the check on Friday, August 24.

Under the contract, work was to start “five days from the receipt of the last of the following documents, the building permit, written notice to proceed from owner.” The building permit had not been issued, and no work was performed on the property by this contractor.

One or two days before the owner stopped payment on the check, the owner contacted another contractor with whom it had done business in the past. It ultimately used that contractor without requiring a “final completion date.” The contract involved in this case was to be for $289,000, and the contract under which the work was actually performed was for $277,000.

The owner sought a declaratory judgment against the contractor on the issue of whether a contract existed, and the contractor counterclaimed for damages for breach of contract and triple damages for fraudulently stopping payment on a check. The jury found that a contract did exist and awarded damages for lost profits as well as damages under section 68.065, Florida Statutes (2001), in the amount of the check, which were tripled.

Section 68.065, Florida Statutes (2001), provides:

(1) In any civil action brought for the purpose of collecting a check .... the payment of which was refused by the drawee because of the lack of funds, credit, or an account, or where the maker or drawer stops payment on the check ... with intent to defraud, and where the maker or drawer fails to pay the amount owing, in cash, to the payee within 30 days following a written demand therefore ... shall be liable to the payee, in addition to the amount owing upon such check, draft, or order, for damages of triple the amount so owing.

The “intent to defraud” language, which was added to this statute in 1998, Chapter 98-297, Laws of Florida, section 1, has not yet been interpreted by any cases on point.

The elements of fraud are:

(1) a false statement of fact; (2) known by the defendant to be false at the time that it was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage or injury.

Nat’l Ventures, Inc. v. Water Glades 300 Condo. Ass’n, 847 So.2d 1070, 1074 (Fla. 4th DCA 2003).

Under the wording of the statute, the question is whether there was an intent to defraud at the time the owner notified the bank to stop payment. This was five days after the check was sent by the owner, and two days after it was received by the contractor. We conclude that as matter of law there was no intent to defraud, because it is undisputed that on the same day that the bank was notified to stop payment, the owner notified the contractor that it was not proceeding. Significant to our decision is the fact that this was an advance payment for work to be performed in the future, not payment for goods or services received.

The contractor argues that, even though no work was performed at the restaurant, the contractor had incurred expenses in preparing to go ahead with the contract based on being informed that the check had been sent. It contends that the owner received a benefit in that, by sending a check, it resulted in the contractor getting ready to start construction, which would benefit the owner in that once the permit was issued, construction could be more quickly completed. This is, in our opinion, too speculative, and too reliant on conduct of the recipient of the check, to prove fraudulent intent by the maker.

If A, on Friday, gives a painter a check for $1,000 to paint his house, and over the weekend the painter does the work, A’s stopping payment on Monday could subject A to triple damages under the statute, because the painter did the work in exchange for the payment. If, however, A stops payment on Monday, before any work is done,- A has received nothing, and stopping payment could not amount to intent to defraud. If the painter in the second example had, over the weekend, purchased the paint, A may be found liable for consequential damages, just as the owner was here.

An example of a factual situation in which the maker of the check could be held for triple damages can be found in Maung v. National Stamping, LLC, 842 So.2d 214 (Fla. 3d DCA 2003), in which the maker had paid by check for the merchandise, but stopped payment after receiving it. If the maker had stopped payment before he received the goods, he could not have been held liable under the statute. The trial court should have directed a verdict on the statutory claim.

The owner has not challenged the finding of breach of contract, but does argue that the contractor’s testimony showed that the contractor would have had to pay five percent of its profit on the job to a consultant, which is not disputed. The award for lost profits on the breach of contract claim must accordingly be reduced by that amount. Reversed.

WARNER and POLEN, JJ., concur.


text:
    Jeffrey L. CASHATT, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4638.
    District Court of Appeal of Florida, First District.
    April 26, 2004.
    Rehearing Denied June 1, 2004.

      Lawrence G. Walters, of Weston, Garrou & DeWitt, Altamonte Springs, for Appellant.
    Charles A. Crist, Jr., Attorney General; Charlie McCoy, Senior Assistant Attorney General; and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In October 2001, appellant conversed over the Internet, by means of a “bulletin board” posting and ensuing e-mail messages, with a vice detective who twice stated to appellant that he was a 14-year-old boy. Appellant arranged to meet the boy in Jacksonville for the purpose of participating in illegal sexual activities, and showed up at the meeting place at the time agreed upon, wearing the clothes which he had told the boy by e-mail that he would be wearing. After his numerous motions to dismiss were denied, appellant pled nolo contendere to violation of section 847.0135(3), Florida Statutes (2001), included in the “Computer Pornography and Child Exploitation Prevention Act of 1986,” which provides:

Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

On appeal, he challenges the facial constitutionality of this statute, and also contends that the statute is invalid for failure to state a mens rea or scienter requirement. Finally, he argues that the trial court erred in denying his motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), asserting that the state failed to demonstrate a prima facie case against him. We find that the statute is valid as against all of appellant’s challenges, and that the state’s evidence was sufficient to demonstrate his violation of the statute.

Constitutional Issues

Appellant contends that section 847.0135(3) violates the First Amendment of the United States Constitution because it is a content-based restriction on protected “pure speech” which cannot pass the “strict scrutiny” test, that the statute is overbroad and void for vagueness, and that it places discriminatory restrictions on interstate commerce. We have considered and rejected each of his arguments.

A facial challenge to a statute is more difficult than an “as applied” challenge, because the challenger must establish that no set of circumstances exists under which the statute would be valid. Except in a First Amendment challenge, the fact that the act might operate unconstitutionally in some hypothetical circumstance is insufficient to render it unconstitutional on its face; such a challenge must fail unless no set of circumstances exists in which the statute can be constitutionally applied. A facial challenge considers only the text of the statute, not its application to a particular set of circumstances, and the challenger must demonstrate that the statute’s provisions pose a present total and fatal conflict with applicable constitutional standards. See People v. Hsu, 82 Cal.App.4th 976, 99 Cal.Rptr.2d 184, 189 (2000); People v. Foley, 94 N.Y.2d 668, 709 N.Y.S.2d 467, 731 N.E.2d 123, 128, cert. denied, 531 U.S. 875, 121 S.Ct. 181, 148 L.Ed.2d 124 (2000); Hatch v. Superior Court, 80 Cal.App.4th 170, 94 Cal.Rptr.2d 453, 470 (2000).

Under the First Amendment, content-based speech restrictions will not survive strict scrutiny unless the government can show that the regulation promotes a compelling government interest and that it chooses the least restrictive means to further the articulated interest. See Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). Courts have applied to statutes restricting speech an “over-breadth” doctrine, rendering the statute invalid in all its applications (i.e., on its face) if it is invalid in any of them, the defect being that the means chosen to accomplish the government’s objective are too imprecise, so that in all its applications it creates an unnecessary risk of chilling constitutionally protected speech. See Hsu, 99 Cal.Rptr.2d at 189; Foley, 731 N.E.2d at 128.

The state has a compelling interest in protecting the physical and psychological well-being of children, which extends to shielding minors from material that is not obscene by adult standards, but the means must be carefully tailored to achieve that end so as not to unnecessarily deny adults access to material which is indecent (constitutionally protected), but not obscene (unprotected). See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244-45, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Sable Communications, 492 U.S. at 130-31, 109 S.Ct. 2829. Courts have recognized that speech used to further the sexual exploitation of children does not enjoy constitutional protection, and while a statute may incidentally burden some protected expression in carrying out its objective, it will not be held to violate the First Amendment if it serves the compelling interest of preventing the sexual abuse of children and is no broader than necessary to achieve that purpose. See Foley, 731 N.E.2d at 128.

A statute is unconstitutionally vague if it fails to provide a person of ordinary intelligence with a reasonable opportunity to know what is prohibited, and is written in a manner that encourages or permits arbitrary or discriminatory enforcement. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). However, imprecise language does not render a statute fatally vague, so long as the language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Foley, 731 N.E.2d at 130. And if a reasonable and practical construction can be given to the language of a statute, or its terms made reasonably certain by reference to other definable sources, it will not be held void for vagueness. See Hsu, 99 Cal. Rptr.2d at 196.

A Commerce Clause challenge to a criminal statute, when both the victim and the defendant reside within the state, is necessarily a facial challenge to the statute. See Hatch, 94 Cal.Rptr.2d at 470. Where a state statute regulates even-hand-edly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). And if a legitimate local purpose is found, the extent of the burden on interstate commerce that will be tolerated will depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Id.

We find that even if section 847.0135(3) is considered a content-based restriction on constitutionally protected speech, it passes the “strict scrutiny” test because it promotes a compelling state interest in protecting children from persons who solicit or lure them to commit illegal acts, and is narrowly tailored to promote that interest, specifically limiting its prohibitions to communication intended to solicit or lure a child to commit illegal acts. The statute at issue is distinctively narrower than the statute found unconstitutional in Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), upon which appellant relies. The use of the phrase, “or another person believed by the person to be a child” does not render the statute unconstitutional, but simply clarifies the “attempt” portion of the statute. When the receiver is in fact an adult, but the sender believes that the receiver is a minor, the sender can be found guilty of an attempt to seduce a minor using on-line services, in violation of the statute. In Foley, Hsu, and Laughner v. State, 769 N.E.2d 1147 (Ind.App.2002), cert. denied, Laughner v. Indiana, 538 U.S. 1013, 123 S.Ct. 1929, 155 L.Ed.2d 849 (2003), each of which found similar child solicitation statutes constitutional, the defendants were charged with attempt because the pretend victims were adult undercover agents.

Appellant’s claim that the statute is overbroad because it chills all sexually oriented communication is without merit. Consenting adults are free to engage in sexually oriented communication without violating the statute, and not all sexually oriented communications seduce or lure, as recognized by the Florida Senate Criminal Justice Committee when it noted: “This provision does not proscribe transmitting, by computer means, a personal predilection to have sex with children; it does proscribe soliciting a person to have sex with children.” Furthermore, sexually oriented communication on a computer online service which is viewed by a child is not a violation of the statute unless the sender of the communication “knowingly” attempts by that' communication to seduce the child.

Appellant’s argument that the statute is vague is also without merit. The statutory terms are sufficiently precise to inform a person of ordinary intelligence what acts are proscribed, and the references to chapters 794, 800, and 827 serve to apprise the reader of the definition of “child” as used in section 847.0135(3). See Karwoski v. State, 867 So.2d 486 (Fla. 4th DCA 2004)..

Under the test enunciated in Pike v. Bruce Church, Inc., it is clear that the challenged statute does not violate the dormant Commerce Clause of the United States Constitution. The state has a compelling interest in protecting minors from being seduced to perform sexual acts, and no legitimate commerce is burdened by penalizing the transmission of harmful sexual material to known minors in order to seduce them. The effect of section 847.0135(3) on interstate commerce is incidental at best and is far outweighed by the state’s interest in preventing harm to minors. Finally, the statute does not burden Internet users with inconsistent state regulations because of the “intent to seduce” element, which makes it much narrower than the statute invalidated in American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y.1997), relied upon by appellant. See Hatch, 80 Cal.App.4th at 195-97, 94 Cal.Rptr.2d 453; Foley, 731 N.E.2d at 132-33; Hsu, 82 Cal.App.4th at 983-85, 99 Cal.Rptr.2d 184.

Mens rea

Appellant’s argument that section 847.0135(3) is invalid because it fails to include a mens rea element as to the age of the victim is without merit. Criminal statutes are presumed to include broadly applicable scienter requirements in the absence of express contrary intent, including the age of the child sought to be “lured” by Internet communications, and a statute is to be construed where fairly possible so as to avoid substantial constitutional questions. See U.S. v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); Giorgetti v. State, 821 So.2d 417 (Fla. 4th DCA 2002), approved, 868 So.2d 512 (Fla.2004). A person is guilty of an attempted child solicitation if the evidence demonstrates that he had a specific intent to commit the substantive offense and under the circumstances as he believed them to be took actions to consummate the substantive offense, even though circumstances unknown to him made completion of the substantive offense impossible, and the fact that the receiver of the “luring” communications was an adult undercover agent posing as a child is irrelevant to the culpability of the sender of the communications for attempting to -lure a child to commit an illegal sexual act. See Hatch, 94 Cal.Rptr.2d at 466; Laughner, 769 N.E.2d at 1155. The defense of legal impossibility has never been adopted in Florida in any criminal attempt prosecution, and is discredited by the overwhelming weight of authority in other jurisdictions. State v. Rios, 409 So.2d 241 (Fla. 3d DCA), review denied, 419 So.2d 1199 (Fla.1982).

Rule 3.190(c) (i) motion

In considering a defendant’s rule 3.190(c)(4) motion to dismiss, which is analogous to a motion for summary judgment in a civil case, the defendant must demonstrate that the undisputed facts fail to establish a prima facie case, all questions and inferences from the facts must be resolved in favor of the state, and where the sworn motion is met with a traverse by the state which specifically denies under oath material facts alleged or sets forth additional facts which create a material issue, the motion to dismiss must be denied. See State v. Kalogeropolous, 758 So.2d 110 (Fla.2000); Dorelus v. State, 747 So.2d 368 (Fla.1999); Boler v. State, 678 So.2d 319 (Fla.1996). We find that the state’s traverse adequately demonstrated a material dispute of the ultimate facts, and that the Internet communications alone constituted a prima facie case of guilt under section 847.0135(3).

The conviction and sentence are AFFIRMED.

ERVIN, BARFIELD, and POLSTON, JJ., concur.

      . We have grave doubts that the framers of the Constitution, had they the gift of seeing into the future, would have intended that sexually explicit e-mails sent to a minor for the purpose of seducing the minor to engage in illegal sexual acts be protected under the First Amendment, notwithstanding that identical communications to an adult would be protected.