text:
    Benfort HENDRICKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2666.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.

      Benfort Hendricks, Bonifay, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Union v. State, 839 So.2d 825 (Fla. 2d DCA 2003); Perry v. State, 705 So.2d 615 (Fla. 5th DCA 1998).

PETERSON, ORFINGER and MONACO, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Y.O., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2545.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Porter v. State, 582 So.2d 41 (Fla. 4th DCA 1991).

PETERSON, ORFINGER and MONACO, JJ., concur.


text:
    C.D.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2365.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya Henry, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

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


text:
    Jeremy Devonn TARVER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2162.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Angela Denise MALONE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1544.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    J. Jeffery Dowdy of Dowdy & Nielsen, Winter Springs, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988); Cardona v. State, 835 So.2d 297 (Fla. 5th DCA 2002) (Sharp, J., concurring).

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


text:
    Ricky L. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-778.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. Lalone v. State, 807 So.2d 128 (Fla. 2d DCA 2002).

PETERSON, ORFINGER and MONACO, JJ., concur.


author: ERVIN, J. BOOTH, J.,

text:
    Peter GRIFFIN, Appellant, v. KIA MOTORS CORP. and Kia Motors America, Inc., Appellees.
    No. 1D01-4668.
    District Court of Appeal of Florida, First District.
    April 23, 2003.
    John Beranek of Ausley & McMullen, Tallahassee; Donald M. Hinkle of Hinkle & Foran, Tallahassee; and Robert A. Robbins of Robbins & Reynolds, P.A., Miami, for Appellant.
    Bruce Culpepper, Joseph W. Hatchett and Robert J. Telfer III of Akerman, Sen-terfitt & Eidson, P.A., Tallahassee; and Larry M. Roth and Martin J. Jaffe of Roth, Powell & Pearson, P.A., Winter Park, for Appellees.
   ERVIN, J.

Peter Griffin appeals a judgment entered on behalf of appellees, Kia Motors Corp. and Kia Motors America, Inc. (Kia), in a strict liability action brought by him against Kia, after a jury found that the seatbelt design in appellant’s vehicle manufactured by appellees was not defective. We reverse and remand for new trial, because the lower court erred under D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla.2001), by admitting evidence of comparative fault, and by refusing to instruct the jury on appellant’s theory of strict liability failure to warn.

We initially address appellant’s contention that the trial judge assigned to try the case had no legal authority to so act because he did not reside within the jurisdiction of the court where he was assigned. Griffin asserts that the rule authorizing such assignment conflicts with the Florida Constitution. Florida Rule of Judicial Administration 2.050(b)(4), provides, in part:

The chief judge may assign any judge to temporary service for which the judge is qualified in any court in the same circuit. If it appears to the chief judge that the speedy, efficient, and proper administration of justice so requires, the chief judge shall request the chief justice of the supreme court to assign temporarily an additional judge or judges from outside the circuit to duty in the court requiring assistance^]

Article V, section 2(b) of the Florida Constitution authorizes the chief justice of the supreme court to assign retired judges “to temporary duty in any court for which the judge is qualified,” and Article V, section 8, which contains criteria regarding eligibility for judicial office, provides that a person is eligible only if he or she “resides in the territorial jurisdiction of the court.” In that Judge Clinton Foster resided in the 14th Judicial Circuit, Griffin argues that he was unqualified to serve as a judge in this case, which was tried in the 2d Judicial Circuit. We are precluded from reaching this issue. The Florida Supreme Court has exclusive jurisdiction to review judicial assignments. See Wild v. Dozier, 672 So.2d 16 (Fla.1996), outlining the procedure for a litigant affected by a judicial assignment to contest such assignment.

Nevertheless, because the Florida Supreme Court in Wild addressed a question certified by a district court of appeal as one of great public importance regarding an assignment, and because several cases are currently pending before the Florida Supreme Court in which the issue now before us has been raised, we certify the following question to the Florida Supreme Court to be one of great public ■ importance:

IS A RETIRED CIRCUIT COURT JUDGE WHO RESIDES OUTSIDE THE TERRITORIAL JURISDICTION OF THE COURT IN WHICH HE OR SHE IS TEMPORARILY ASSIGNED TO SERVE DISQUALIFIED FROM SO ACTING BECAUSE OF THE PROVISIONS OF ARTICLE V, SECTION 8 OF THE FLORIDA CONSTITUTION?

The disposition of the remaining points on appeal requires a summary of the facts. In the early-morning hours of July 1,1996, Griffin was riding in the front-passenger seat in his 1996 Kia Sephia automobile driven by his friend, Jahaira Lara, on an interstate highway near Tallahassee, Florida. Lara fell asleep at the wheel, and the vehicle went off the road, resulting in severe injuries to Griffin. He sued Kia, claiming that the design of the reclining seat in which he sat and its restraining seatbelt were defective, causing the enhancement of the injuries he suffered in an otherwise minor accident; accordingly, he contended the vehicle was not crashwor-thy, and that Kia had failed to provide an adequate warning of the danger.

Griffin recounted that he was sleeping in the passenger seat in a 45-degree reclining position with his seatbelt fastened. He awoke as the car was leaving the highway and attempted to grab the wheel with his right hand, but did not actually touch it. The automobile’s right front glanced off a cherry tree beside the road and came to rest against an oak tree, with an impact so minor that the airbags neither inflated, nor was Lara injured. Griffin, however, was not so fortunate. Because his seat was reclined, he was propelled forward so that his neck struck the seatbelt as though it were a clothesline, fracturing his neck at the C-5 level and rendering him quadriplegic. An expert testified that the seat-belt acted as a fulcrum when Griffin’s neck hit it, and that the belt can only protect an occupant when it is snugly fit against a person’s body. Another expert testified that an “interlock” device could have been installed which would have prevented the seat from reclining while the vehicle was in motion. The EMTs and highway patrol officer who arrived at the scene all testified that they believed it was a minor accident in which the ear left the highway and struck glancing blows against the two trees. Photographs showed that the car was not badly damaged. In fact, there was no visible damage to the car’s right headlight, turn signal, running light, fog light or bumper.

Kia’s version of the accident was substantially different from Griffin’s. Its theory was that Griffin’s injuries were not caused by the reclined seat and restraining belt, but by a rollover. It contended that upon awakening, Griffin grabbed the wheel and that he and Lara wrestled for control, causing the vehicle to careen off the road. Kia’s experts opined there had been a double rollover and that the car came to rest against the trees, and that Griffin’s injuries occurred when his head smashed into the interior roof of the car. Kia’s biomechanical expert stated that because Griffin reached for the steering wheel with his right hand, he was essentially upright and in contact with the seatbelt during the accident, thereby preventing any “clothes-lining” effect.

The court directed the jury to determine whether the Sephia’s reclining seatback design was defective and whether such defect was a legal cause of Griffin’s injury, and, if so, to determine the comparative fault, if any, of Jahaira Lara and Peter Griffin. The jury found no defect in the seatback design, and the court entered judgment in favor of Kia.

Because this was a crashworthiness or enhanced-injury action filed against the automobile manufacturer, the trial court erred in allowing the issue of comparative fault to be tried. See D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla.2001). In such cases, it is always presumed that the negligence of others caused the basic vehicular collision. What the appellant is contending is that a design defect in the vehicle exacerbated the plaintiffs injuries beyond what they would have been without such defect. He alleged that he would have sustained only minor injuries or none at all from the collision with the cherry tree were it not for Kia’s defective design of the seatback, or Kia’s failure to warn passengers of such hazard, because his catastrophic injuries were caused when his neck snapped forward from his reclined position into the rigid shoulder belt. In D:’Amaño the supreme court observed that evidence of the fault of the driver or others who caused the initial accident “tends to unduly confuse the jury by focusing attention on the conduct giving rise to the accident instead of the issues of the existence of a defect and its role in causing the enhanced injuries.” Id. at 440.

On remand, Kia will be permitted to present evidence showing that the accident did not implicate the crashworthiness of the Kia Sephia’s seatback design, because a rollover rather than a frontal collision was the proximate cause of Griffin’s injuries. Although its causation defense may involve evidence of Lara’s falling asleep and Kia’s theory of Griffin grabbing the wheel, the lower court cannot instruct the jury to decide whether Griffin and/or Lara were comparatively negligent. If the jury finds for Kia on such issue, the case will be concluded. If the jury rejects Kia’s version of events and instead accepts Griffin’s crashworthiness theory of proximate cause, the jury may next be asked to decide whether any negligence on Griffin’s or Lara’s part, combined with the Kia’s defective condition, caused his enhanced injuries, if the court considers this to be a valid issue. See id. at 426 n. 2.

The court also committed reversible error by declining plaintiffs request for a jury instruction on his cause of action for strict liability failure to warn. Although a cause of action for negligent failure to warn is well-established, only the Fourth District in Ferayorni v. Hyundai Motor Co., 711 So.2d 1167 (Fla. 4th DCA 1998), has expressly approved the existence of a cause of action alleging strict liability failure to warn. The Florida Standard Civil Jury Instructions do not include an instruction on strict liability for failure to warn, but the drafting committee noted that it was waiting for the courts to determine whether it is a viable cause of action. Fla. Std. Jury Instr. (Civ.), PL comment 2.

In Ferayomi, a teenaged driver was fatally injured following a collision in which she was wearing her shoulder belt under her arm, rather than over her shoulder, and her estate sued Hyundai Motor Co., alleging defective design of the belt, negligent failure to warn, and strict liability failure to warn, among other claims. The jury found no liability and judgment was entered for Hyundai. In reversing, the Fourth District concluded that the trial court had erred in refusing to give a jury instruction on strict liability failure to warn, and that the judge was wrong in concluding that the instruction on negligent failure to warn was sufficient. The Fourth District stated that this cause of action must encompass proof “ ‘that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.’ ” Ferayorni, 711 So.2d at 1172 (quoting Anderson v. Owens-Corning Fiberglas Corp., 53 Cal.3d 987, 281 Cal.Rptr. 528, 810 P.2d 549, 558 (1991)). In the case at bar, Griffin based his requested jury instruction on the above-quoted statement from Ferayomi. We follow the Fourth District in recognizing this cause of action and direct the trial court on remand to instruct the jury on strict liability failure to warn.

Although we find no reversible error as to any of Griffin’s remaining issues, because this case must be remanded for new trial, we consider it helpful to address certain of them. First, while we affirm Griffin’s asserted error caused by the lower court’s refusal to submit a verdict form to the jury, we do so only because appellant failed to preserve the error below. We note that the language in the requested form generally tracks that in Griffin’s requested instruction relating to strict liability failure to warn. Thus, if on remand the request is properly before the trial court, the refusal to submit such form to the jury could constitute error. Second, during the charge conference, Griffin’s counsel stated that he usually preferred the jury to have a copy of the jury’s written instructions with them during deliberations, but the court replied that it was not its custom to permit such practice in civil cases. We draw the trial court’s attention to Florida Rule of Civil Procedure 1.470(b), which encourages trial courts to furnish written instructions to the jury “when practicable.” Third, Griffin states that the judge refused his request to allow the jury to take notes. Such act would have been contrary to section 40.50(2), Florida Statutes (2000), which provides: “In any civil action which the court determines is likely to exceed 5 days, the court shall instruct that the jurors may take notes regarding the evidence and keep the notes to refresh their memories and to use during recesses and deliberations.”

REVERSED and REMANDED for new trial.

BROWNING, J., CONCURS; BOOTH, J., CONCURS in part and DISSENTS in part.

BOOTH, J.,

Concurring in Part and Dissenting in Part.

I agree to the reversal in this case due to the instruction on comparative negligence. In all other respects I dissent from this opinion.

      . See Physician’s Healthcare Plans, Inc. v. Pfeifler, No. SCO 1-2062 (Fla. Sept. 17, 2001); Kahn v. Pfeifler, No. SCO 1-2079 (Fla. Sept. 28, 2001); In re: Assignment of Senior Judges, No. SC02-593 (Fla. Mar. 19, 2002).

      . See, e.g., High v. Westinghouse Elec. Corp., 610 So.2d 1259 (Fla.1992); Rodriguez v. New Holland N. Am., Inc., 767 So.2d 543 (Fla. 3d DCA 2000).


author: ERVIN, J. BROWNING, J., BOOTH, J.,

text:
    David L. ARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4498.
    District Court of Appeal of Florida, First District.
    April 23, 2003.

      Nancy A. Daniels, Public Defender; Anthony Cammarata, P. Douglas Brink-meyer, Kathleen Stover, and Paula S. Saunders, Assistant Public Defenders, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
   ERVIN, J.

. Appellant, David L. Arnett, appeals his conviction for felony driving while his license was revoked pursuant to section 322.264, Florida Statutes (habitual traffic offender), in violation of section 322.34(5), Florida Statutes (2000). He contends that the trial court erred by admitting into evidence an order of license revocation issued by the Department of Highway Safety and Motor Vehicles, because the state failed to establish the necessary predicate for admission of the document as a business record. We agree and reverse and remand for new trial.

The business records hearsay exception, section 90.803(6)(a), Florida Statutes (2001), provides that the following are not inadmissible as evidence:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness.

In order to be admissible under section 90.803(6)(a), the business record must be shown to have been: (1) made at or near the time of the event recorded, (2) by or from information transmitted by a person with knowledge, (3) kept in the course of a regularly conducted business activity, and (4) the regular practice of that business to make such a record. Quinn v. State, 662 So.2d 947, 953 (Fla. 5th DCA 1995). Stated another way, business records are admissible if the records custodian or other qualified witness testifies as to manner of preparation, reliability and trustworthiness of the record. Cofield v. State, 474 So.2d 849, 851 (Fla. 1st DCA 1985).

The state offered the testimony of Liz Sharpton to establish the necessary predicate for admission of the order of revocation. Her skeletal testimony, consisting merely of a statement that she had been employed by the Department of Highway Safety and Motor Vehicles for 31 years, that she was familiar with the Department’s recording system, and that the order was sent to appellant as required by an unspecified statute, fails to establish any of the four predicate elements for admission.

Because the order was the only evidence to establish two of the elements necessary to prove appellant’s conviction, i.e., that his license was revoked and that the revocation was based on the habitual-traffic-offender statute, the error cannot be considered harmless. We therefore reverse and remand for new trial.

As a second issue, appellant challenged the repeated reference to him as a habitual offender during trial. Because the habitual-offender designation appears to be an essential element of the crime under section 322.34(5), we affirm as to that issue without further comment.

AFFIRMED in part, REVERSED in part, and REMANDED for new trial.

BROWNING, J., CONCURS with opinion; BOOTH, J., DISSENTS with opinion.

BROWNING, J.,

concurs.

I concur as to both issues, and I write only to explain my concerns about the second issue.

In trials involving an offense that is predicated on the defendant’s criminal status, the nature and number of the previous offenses should not be disclosed to the jury, absent extraordinary circumstances. See Brown v. State, 719 So.2d 882 (Fla.1998). Here the jury was informed that Appellant is a habitual traffic offender because that status is an element of the crime, and it seems to me this disclosure violates Brown. Unfortunately, I think, this issue has been recently resolved by this court contrary to my conviction, and I am oath-bound to follow that decision from which I dissented. See Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). Moreover, Appellant did not properly join his objection with an offer to stipulate in a manner that would establish his criminal status, as required by Brown. Thus, I concur on the second issue.

BOOTH, J.,

Dissents.

I would affirm the trial court’s decision to admit the order of license revocation issued by the Department of Highway Safety and Motor Vehicles. In determining whether the hearsay exception of section 90.803(6)(a) applies, the trial court must make a preliminary factual determination of the admissibility of evidence pursuant to section 90.105(1). Here, the trial court, in its discretion, determined that the State laid a proper predicate for admissibility of the order. See LEA Indus., Inc. v. Raelyn Int’l Inc., 363 So.2d 49 (Fla. 3d DCA 1978) (“[I]t lies within the trial court’s discretion to determine whether admission of such business records is justified.”). Ms. Sharpton testified that she was familiar with the Department’s recording system, and she knew the order was mailed to Appellant’s last known address. She need not have personal knowledge of the matter recorded. See Stern v. Gad, 575 So.2d 258, 260 (Fla. 3d DCA 1991)(holding that a ledger sheet on gem transactions was admissible even though prepared by a person lacking personal knowledge of the matters recorded in the ledger sheet); see also Federated Dep’t Stores, Inc. v. Antigo Indus., Inc., 297 So.2d 591, 592 (Fla. 3d DCA 1974)(“[P]lain-tiffs president testified that the subject statement was one of several monthly statements which were sent to the defendant during the period of their business transactions,” thus the statement was not devoid of any business regularity).

Once the trial court determines that evidence may be admitted, the burden then shifts to the opponent to prove the evidence is untrustworthy. See Love v. Garcia, 634 So.2d 158, 160 (Fla.1994); C. Ehrhardt, Florida Evidence § 803.6 (2001 ed.). Appellant failed to demonstrate why the order may not be credible or accurate. Accordingly, the trial court properly allowed the order to be admitted "as evidence. I would affirm.


text:
    David H. WILLIS, Appellant, v. Laurie WILLIS, Appellee.
    No. 1D02-28.
    District Court of Appeal of Florida, First District.
    April 23, 2003.
    Clyde M. Collins, Jr., Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The appellant is challenging a contempt order which he has purged so as to no longer be under the contempt sanction. The challenge is moot, and the appeal is therefore dismissed.

ALLEN, C.J., BENTON and HAWKES, JJ., CONCUR.


text:
    Earl QUARTERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0444.
    District Court of Appeal of Florida, First District.
    April 23, 2003.

      Nancy A. Daniels, Public Defender, and Gary D. Wimsett, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Delva, 575 So.2d 643 (Fla.1991).

BARFIELD, BROWNING, and LEWIS, JJ., CONCUR.


author: BROWNING, J.

text:
    YBOR III, LTD., Appellant, v. FLORIDA HOUSING FINANCE CORPORATION, Appellee.
    No. 1D01-4776.
    District Court of Appeal of Florida, First District.
    April 23, 2003.
    E. Gary Early, of Messer, Caparello & Self, P.A., Tallahassee, for Appellant.
    Wellington H. Meffert, II, General Counsel; and Hugh R. Brown, Assistant General Counsel, Tallahassee, for Appel-lee.
   BROWNING, J.

Ybor III, Ltd. (Appellant), appeals a final order of the Board of the Florida Housing Finance Corporation (Appellee) dismissing Appellant’s petition for a formal administrative proceeding. Appellant contends that Appellee exceeded its authority and violated sections 120.569 & -.57(1), Florida Statutes (2001), by dismissing the petition. Concluding that Appellant has demonstrated that it has a “substantial interest” in the proceedings at issue, we reverse the final order and remand for a formal administrative hearing. See Agrico Chem. Co. v. Dep’t of Env. Reg., 406 So.2d 478, 482 (Fla. 2d DCA 1981).

Appellee’s Statutory Mandate

Appellee’s mandate is clearly set out in Chapter 420, Florida Statutes. Appellee, an entrepreneurial public corporation within the Department of Community Affairs, was created “to provide and promote the public welfare by administering the governmental function of financing or refinancing housing and related facilities in Florida. ...”§§ 420.504(1) & -.502(7), Fla. Stat. To fulfill this statutory mandate, Ap-pellee participates in various state and federal programs that serve to provide affordable and low-income housing in Florida. See, e.g., §§ 420.5087 (State Apartment Incentive Loan “SAIL” Program), -.5089 (HOME Investment Partnership Program) & -.5099 (designating Appellee as housing credit agency for Low-Income Housing Tax Credit Program for purposes of Internal Revenue Code), Fla. Stat. Among Ap-pellee’s powers are the right “[t]o make rules necessary to carry out the purposes of this part and to exercise any power granted in this part pursuant to the provisions of chapter 120.” § 420.507(12), Fla. Stat. In exchange for Appellee financing, developers enter long-term agreements with the agency restricting the rents that can be charged to qualified low-income residents. Because the demand for funding through these programs far exceeds the amount of funds that Appellee has available, the agency has established a competitive application process for awarding funds. For the 2001 competitive cycle, the applications for SAIL and HOME funds, as well as for low-income housing tax credits, were combined into one “Universal Application.” Fla. Admin. Code R. 67 48.001(1), Fla. Admin. Code.

Procedural History

In compliance with Appellee’s bidding process Appellant and Windsong II sought funding during a funding cycle. Windsong II was awarded funding and Appellant was not. Appellee’s “funding pool” was not sufficient to fund both Appellant and Windsong II, and, therefore, Appellee’s selection of Windsong II resulted in Appellant’s exclusion from funding. Appellant asserted to Appellee that Windsong II’s application was scored incorrectly, and if it had been properly scored, that Appellant would have been the highest and best applicant and entitled to the funding awarded to Windsong II. Appellee denied Appellant’s assertion and left Windsong II’s scoring unchanged.

Disappointed with Appellee’s action, Appellant filed a petition for a formal administrative hearing. Appellant argued that had Windsong II’s application been scored in compliance with Appellee’s clear rule instructions, policies, and practices, Appellant, and not Windsong II, would be entitled to funding. Appellee, in response, maintained that Appellant was not entitled to a hearing because Appellant was attempting to assert an after-the-fact unauthorized cross-appeal in direct violation of the “no intervention” Rule 67-48.005(1) Florida Administrative Code, which states in part: “No Applicant or other person or entity will be allowed to intervene in the appeal of another Applicant.” Appellant, in response, alleged that a section 120.57 petition is not an intervention, but is its own proceeding to challenge the scoring of Windsong II’s application, and, as such, Appellant is a “substantially affected pen-son” entitled to a hearing. Appellee entered a final order adopting its position, and Appellant instituted this appeal.

Analysis

The APA defines “party” to include “[s]pecifically named persons whose substantial interests are being determined in the proceeding.” § 120.52(12), Fla. Stat. Appellant fits within the broad statutory definition of “person.” § 1.01(3), Fla. Stat. The parties agree that the decisional starting point for determining whether Appellant has standing is Agrico Chem. Co., 406 So.2d at 478, in which the court set out a two-pronged test:

We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of significant immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect.

Id. at 482. Having raised disputed issues of material fact, Appellant still had to establish standing to request and participate in a formal administrative hearing. The first prong of the Agrico Chem. Co. test “deals with the degree of injury,” whereas the second prong “deals with the nature of the injury.” Id. To prove standing, Appellant has to satisfy both prongs. Based upon the record here, we determine that Appellant does have standing under Agrico Chem Co.

We conclude that Appellant meets the first prong of the test requiring that it show a “substantial interest.” Appellee, by granting Windsong II’s application, excluded Appellant from that cycle of the funding process; such exclusion provides a sufficient interest to support a section 120.57 hearing for Appellant. See Fairbanks, Inc. v. Dep’t of Transp., 635 So.2d 58 (Fla. 1st DCA 1994); Bio-Medical Applications of Ocala, Inc. v. Office of Cmty. Med. Facilities, Dep’t of Health & Rehab. Servs., 374 So.2d 88 (Fla. 1st DCA 1979).

We also conclude that Appellant meets the second prong of the Agrico Chem. Co. test, i.e., Appellant’s injury is of the type or nature that the proceeding is designed to protect. Common sense and logic dictate that if such a program of economic incentives to private investors to commit to low-income housing is to succeed, the process of determining who is qualified for loans and/or tax credits must be administered fairly, honestly, and consistently according to the rules that Appellee is charged with implementing. The allegations in the petition, taken as true for purposes of appellate review, indicate that the scoring and ranking process used by Appellee to evaluate Appellant’s and Wind-song II’s applications was not carried out in a manner consistent with the agency’s mandate to create and administer investment incentives. Once it became aware of perceived irregularities or improprieties in the application evaluation procedures employed by Appellee, Appellant was denied any meaningful opportunity to be heard. Were Appellee’s interpretation of its rules to be approved by this court, then an unsuccessful, simultaneous applicant for a finite, limited benefit who questions the integrity of the evaluation process itself would not have an adequate forum to be heard. An agency could act fraudulently, illegally, arbitrarily, dishonestly, or inconsistently with impunity. The administrative need for decisional finality is a nullity if the road toward closure does not permit a reasonable point of entry for an aggrieved applicant to speak and be heard. Because Appellant demonstrated the requisite substantial injury and was denied such an opportunity, we conclude that Appellant has satisfied the second prong of the “substantial interest” test. Therefore, Appellant has standing to request a formal administrative hearing to address the disputed facts alleged in the petition.

We REVERSE the dismissal order and REMAND for a formal administrative hearing.

DAVIS and POLSTON, JJ., CONCUR.

      . All statutory citations are to the 2001 provisions unless otherwise noted.


text:
    Patricio NINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-482.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Patricio Nino, for appellant.
    Charles J. Crist, Jr., Attorney General and Mark Rosenblatt, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

PETITION FOR WRIT OF HABEAS CORPUS

In what we treat as a motion to correct judgment raised by way of a petition for writ of habeas corpus, Patricio Nino asserts that his judgment improperly reflects that he was convicted of a weapons violation in connection with his kidnaping conviction. The kidnaping conviction on the judgment makes reference to both the kid-naping statute, section 787.01, Fla. Stat. (1995), and the weapons and aggravated battery reclassification statute, section 775.087, Fla. Stat. (1995). The state properly concedes that Nino was neither charged with nor convicted of using a weapon or committing an aggravated battery during the kidnaping. For this reason, we remand with directions that the references to section 775.087 be deleted from the judgment. We otherwise find no illegality or impropriety to the judgment and deny the petition.

Petition denied but remanded with directions.


text:
    Ada Violeta ARAUJO DEJO, as Personal Representative of the Estate of Manuel Aquiles Araujo Yecguanchuy, Appellant, v. PHILIP MORRIS, INC., The Tobacco Institute, Inc., and The Council for Tobacco Research-USA, f/k/a The Tobacco Institute Research Committee, Appellees.
    No. 3D02-1244.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Law Offices of Simon & Dondero, P.A. and Steven R. Simon, Miami, for appellant.

      Shook, Hardy & Bacon, LLP and Norman A. Coll, Miami; Goodwin Procter LLP and Kenneth J. Parsigian (Boston, Massachussets); Dechert, Price & Rhoads, and Norbert F. Bergholtz, and Joseph P. Archie, and Brennan J. Torregrossa (Pennsylvania); Gutierrez & Associates and Kathleen M. Sales, for appellee.
    Before GODERICH and GREEN, JJ. and NESBITT, Senior Judge.
   PER CURIAM.

ON MOTION FOR CLARIFICATION

We grant the Motion for Clarification; withdraw dur opinion of February 26, 2003; and substitute the following opinion in its stead.

Plaintiff appeals the granting of the defendants’ motion to dismiss with prejudice. We affirm.

The record and order in this case have provided us with sufficient information to determine that the trial court properly dismissed this case on forum non conveniens grounds. See Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So.2d 86 (Fla.1996). See, e.g., Bacardi v. De Lindzon, 728 So.2d 309, 312 (Fla. 3d DCA 1999) (stating that: “[n]o bright-line rule exists to mandate reversal of the order and remand when the trial court fails to delineate its reasoning as to each step in the Kinney analysis.”). See also Sun & Sea Estates, Ltd., Inc. v. Kelly, 707 So.2d 863, 865 (Fla. 3d DCA 1998) (appellate court, where trial court had failed to perform the Kinney analysis, reviewed record before it, and concluded that case be dismissed for forum non conve-niens.).

The court, however, failed to “ensure” that plaintiff can reinstate her suit in Virginia as the parties have stipulated. See Fla. R. Civ. P. 1.061. Without reaching the merits of Plaintiffs complaint, we rule that this case may be reinstated in Virginia pursuant to the terms of the Defendants’ Stipulation in Support of Their Alternative Motion to Dismiss on the Basis of Forum Non Conveniens, Fla. R. Civ. P. 1.061(a).

Affirmed.

      . This rule provides in pertinent part that:
      (a) Grounds for Dismissal. An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when:

      (4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.


text:
    Miguel E. RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-905.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Miguel E. Rivera, in proper person.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General and Bureau Chief, for appel-lee.

      Before COPE, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

We reverse the order denying defendant’s motion to correct illegal sentence to the extent that it denies re-sentencing on the third-degree felony convictions. As the state properly concedes, the sentences imposed on those convictions impermissi-bly exceed the maximum sentence of ten years. § 775.084(4)(a), Fla. Stat. (1999). Accordingly, on remand, the court shall re-sentence defendant to ten years on the third degree felony convictions in case nos. 99-35063 and 99-35077. Defendant need not be present for re-sentencing.

Affirmed in part; reversed in part, and remanded.


author: SCHWARTZ, Chief Judge.

text:
    David REMUS and Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., a Florida not-for-profit corporation, f/k/a Latin Chamber of Commerce USA, Inc., a Florida not-for-profit corporation, Appellants, v. SCOTTSDALE INSURANCE COMPANY, Appellee.
    No. 3D02-2220.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Michael C. Gongora, Miami Beach; Mesa & Pereira and Carlos Mesa, for appellants.
    Butler Pappas Weihmuller Katz Craig and Anthony Russo and L. Andrew Watson, Tampa, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   SCHWARTZ, Chief Judge.

Upon the holding that there was no coverage as a matter of law because the failure of the defendant-insured to secure worker’s compensation coverage, which was the basis of its asserted liability to the personal injury plaintiff, was not an “occurrence” as required by its liability policy, the summary judgment in favor of the insurer is affirmed. See American States Ins. Co. v. Pioneer Elec. Co., 85 F.Supp.2d 1337 (S.D.Fla.2000); Stein-Brief Group, Inc. v. Home Indem. Co., 65 Cal.App.4th 364, 76 Cal.Rptr.2d 3 (1998); Reliance Ins. Co. v. Nick J. Giannini, Inc., 158 Ill.App.3d 657, 110 Ill.Dec. 578, 511 N.E.2d 755 (1987), appeal denied, 117 Ill.2d 553, 115 Ill.Dec. 409, 517 N.E.2d 1095 (1987). See generally Humana Worker’s Compensation Services v. Home Emergency Services, Inc., 842 So.2d 778 (Fla. 2003).


author: PLEUS, J.

text:
    Steven J. KIRSCHNER, P.A., Appellant, v. Ronald BIRITZ, et al., Appellees.
    No. 5D02-3012.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.

      Steven J. Kirschner of Steven J. Kir-schner, P.A., Winter Park, pro se.
    David P. Lister of Sams, Martin, Lipsky, Lister & Kaufman, P.A., Miami Lakes, for Appellees.
   PLEUS, J.

The issue on appeal is whether an attorney who represents a plaintiff in a personal injury action pursuant to a contingent fee agreement, and who withdraws from representation prior to the occurrence of the contingency (recovery), retains the right to compensation?

Florida law reflects that where the withdrawal is upon the attorney’s own volition, the attorney forfeits his right to compensation unless the client’s conduct makes continued representation either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating the Florida Bar. See Faro v. Romani, 641 So.2d 69 (Fla.1994); Kay v. Home Depot, Inc., 623 So.2d 764 (Fla. 6th DCA 1993). In both Faro and Kay, the attorney was deemed to have lost his right to compensation after withdrawing from representation due to a dispute with the client concerning whether the client should accept a settlement offer.

In the instant case, the trial court found, and the record contains competent substantial evidence establishing, that the attorney filed a motion to withdraw due to serious disagreements with the client over the handling of the case. The attorney tired of what he perceived to be a “problem client” and initiated the process of moving to withdraw from representation. Had counsel been discharged by his client without cause, he would have been entitled to compensation under the express terms of the contingent fee agreement. However, when counsel prepared a motion to withdraw after having suggested to his client that he may wish to find other counsel, his withdrawal was voluntary and resulted in the forfeiture of his right to compensation. See Kocha & Jones, P.A., v. Greenwald, 660 So.2d 1074 (Fla. 4th DCA 1995). The decision of the trial court denying recovery of attorney’s fees is affirmed.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.


author: THOMPSON, C.J.

text:
    Michael Edward HOWARTH, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2947.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.

      Michael Edward Howarth, Raiford, pro se. '
    No Appearance for Appellee.
   THOMPSON, C.J.

Michael Edward Howarth appeals the trial court’s summary denial of his petition for writ of error coram nobis. We affirm.

On 21 August 1995, Howarth filed a petition for writ of error coram nobis alleging that in his prior case, there had been no factual basis for his pleas of guilty to forgery and uttering forged checks, and that these convictions were being used to habitualize him in an unrelated case. The trial court denied his petition on the ground that it was filed beyond the two-year period set forth in Rule 3.850, Florida Rules of Criminal Procedure. Howarth appealed, and this court affirmed, see Howarth v. State, 673 So.2d 580 (Fla. 5th DCA 1996). We held that the trial court was correct in treating Howarth’s petition as a time-barred 3.850 motion rather than a petition for writ of error coram nobis. We reasoned that Howarth was still “in custody” on the prior convictions because they were being used to enhance his current sentence. Cf. Richardson v. State, 546 So.2d 1037 (Fla.1989)(newly discovered evidence claims must be brought in 3.850 motion unless the defendant is not in custody).

On 9 March 2001, Howarth s.ought relief pursuant to Wood v. State, 750 So.2d 592 (Fla.1999), in which the court held that those adjudicated prior to its issuance had two years after its issuance within which to raise claims traditionally cognizable under coram nobis. Because we treated Ho-warth’s previous petition as an untimely 3.850 motion, we conclude that there is no procedural bar to Howarth’s bringing a legitimate claim under Wood. Nevertheless, the trial court did not err in denying relief.

First, Howarth’s contention that Wood requires an evidentiary hearing is incorrect. An evidentiary hearing is necessary only if the defendant sets forth a prima facie case for relief. Id. at 594 (quoting Hallman v. State, 371 So.2d 482 (Fla.1979)); see also Espinosa v. State, 785 So.2d 583, 584 (Fla. 3d DCA 2001).

A claim for relief traditionally cognizable by coram nobis must be based on facts which could not have been known by the trial court, the party, or counsel at the time of the trial:

The facts upon which the petition is based must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.

Wood, 750 So.2d at 593. A prima facie case for relief is not made by couching other claims in terms of newly discovered evidence or by characterizing previously known information as newly discovered. Howarth’s alleged newly discovered evidence — that when the checks were negotiated he did not know that his co-defendant was not authorized to use the checks — was known to Howarth by the time of the plea hearing, and Howarth’s counsel conveyed this assertion to the trial court.

Similarly, Howarth is not entitled to relief based on his claim that the trial court made an “independent legal determination” that, as Howarth puts it, “even though [Howarth] had no specific knowledge or intent of the crimes, he should have known.” Indeed, it appears that the court had difficulty in believing that Ho-warth did not know the checks were unauthorized.

Finally, Howarth seems to contend that his counsel was ineffective for failing to explain the elements of the crimes charged and that the court and defense counsel led him to believe that he was guilty although he had no knowledge of the illegal nature of the transactions. Howarth’s appellate brief states: “This newly discovered fact is central to counsel’s ineffectiveness for failing to properly explain the elements of the crime charged.” Claims of ineffective assistance of counsel are not errors of fact that are cognizable in a traditional petition for writ of error coram nobis. See Harris v. State, 829 So.2d 328, 329 (Fla. 3d DCA 2002) (although appellant labeled his petition as one for writ of error coram nobis, all of his allegations pertain to ineffective assistance of counsel in connection with pleas, and should have been made via a 3.850 motion; therefore, the trial court properly denied the petition as untimely).

The order summarily denying Howarth’s petition for relief is affirmed.

AFFIRMED.

GRIFFIN and SAWAYA, JJ„ concur.

      . At the plea hearing, the trial court entered into a detailed discussion of the facts with defense counsel and Howarth. Defense counsel told the court in Howarth's presence that Howarth's co-defendant had given a sworn statement indicating that Howarth had no knowledge of the crime. Defense counsel stated that he and Howarth had discussed the case at great length, and that, despite the availability of "technical defenses,” Howarth decided that pleading guilty was in his best interest. As a result of the pleas, the state dismissed a dealing in stolen property charge, and Howarth was sentenced to 180 days, with credit for 141 days served. The record is clear that Howarth's plea was knowing, voluntary, and supported by an adequate factual basis, as this court held in Howarth's previous appeal. See Howarth, 673 So.2d at 582.


author: PALMER, J.

text:
    K.O., Mother of T.L.O., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-1575.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, and James A. Sawyer, Jr., Kissimmee, for Appellee.
   PALMER, J.

K.O. appeals the trial court’s order terminating her parental rights to her son, T.L.O. The evidence presented during the trial, if believed by the trial court, was sufficient to support the court’s decision to terminate K.O.’s parental rights based on section 39.806(l)(e) of the Florida Statutes (2001). However, K.O. argues, and the State properly concedes, that the trial court failed to set forth in its termination order-findings of fact relating to the best interest of the child as required by section 39.810 of the Florida Statutes (2001). Accordingly, we vacate the instant termination order and remand this matter to the trial court for issuance of an order that complies with the statute. See In re A.C., 751 So.2d 667 (Fla. 2d DCA 2000)(holding that final judgment terminating mother’s parental rights did not satisfy the statutory requirement that the trial court consider and evaluate the manifest best interest of the children where neither the trial court’s final judgment nor the transcript of proceedings contained any finding of fact or conclusion of law as to the manifest best interest of the children).

VACATED and REMANDED.

PETERSON and PLEUS, JJ., concur.


author: SHARP, W„ J.

text:
    Jeffrey A. MACPHERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-697.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.
    Jeffrey A. MacPherson, Bushnell, pro se.
    No Appearance for Appellee.
   SHARP, W„ J.

Jeffrey A. MacPherson appeals from the trial court’s order which summarily denied his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), seeking post-conviction relief. With reluctance, we dismiss his appeal as being untimely, because although his notice of appeal was filed within thirty days of the trial court’s denial of his motion for rehearing, his notice of appeal was filed more than thirty days after the trial court’s initial denial. An untimely filing of a notice of appeal deprives this court of jurisdiction. It is the ultimate and most fatal of appellate errors.

“With reluctance” refers to the fact that this court has repeatedly warned, in such cases as this, that unlike the proceedings involving motions filed pursuant to rule 3.850 seeking post-conviction relief, there is no provision in rule 3.800(a) “authorizing” a motion for rehearing and thus it follows, motions for rehearing in rule 3.800 proceedings do not toll the time for filing a notice of appeal. See, e.g., Mathis v. State, 720 So.2d 1116 (Fla. 5th DCA 1998); Gaylord v. State, 678 So.2d 481 (Fla. 5th DCA 1996); Simmons v. State, 657 So.2d 1283 (Fla. 5th DCA 1995); Kosek v. State, 640 So.2d 1127 (Fla. 5th DCA), rev. dismissed, 648 So.2d 723 (Fla.1994).

Yet, this same mistake continues to be made primarily by convicted defendants acting pro se. In our view, the discrepancy in how motions for rehearing are treated in the two rules governing collateral relief after conviction makes little sense, and as illustrated by this case, it is a trap for the unwary. Is it a necessary trap? Only the rule makers can answer that question, and until a change is made, this trap will continue to' exist.

DISMISSED.

PLEUS and TORPY, JJ., concur.


text:
    Eric TANNEHILL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1720.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Eric Tannehill, in proper person.
    Charles J. Crist, Jr., Attorney General, and Mark Rosenblatt, (Ft.Lauderdale), Assistant Attorney General, for appellee.
    Before GODERICH, FLETCHER and WELLS, JJ.
   PER CURIAM.

We affirm the trial court’s denial of Appellant’s petition for writ of habeas corpus. “[T]he remedy of habeas corpus is not available as a substitute for post-conviction relief under Rule 3.850, Fla.R.Crim.P.” Leichtman v. Singletary, 674 So.2d 889, 892 (Fla. 4th DCA 1996), quoting Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981).

Though we need not reach the merits of Appellant’s claims, we briefly note the following. Successive motions seeking the same relief are not authorized under either rule 3.850 or rule 3.800. See Fla. R.Crim. P. 3.850(f); Price v. State, 692 So.2d 971 (Fla. 2d DCA 1997) (confirming that successive review of issues raised in 3.800 motions is not authorized). To this end, we find that Appellant’s claim that he was not provided proper notice of intent to habitualize has been raised, and rejected, previously. Moreover, we find that the claim was not timely raised herein. See Fla. R.Crim. P. 3.850(b); Cook v. State, 816 So.2d 773 (Fla. 2d DCA 2002) (failure to advise of intent to habitualize must be raised in a rule 3.850 motion). Additionally, we find that Appellant’s second and third claims, that his habitual offender sentence is an unlawful departure sentence that cannot be imposed without written reasons, are meritless. See Viera v. State, 833 So.2d 264 (Fla. 3d DCA 2002) (confirming that habitual offender sentences are not subject to sentencing guidelines and thus are not departure sentences that must be accompanied by written reasons).

We also advise Appellant that additional, repetitive, non-meritorious post-conviction motions, writs, and appeals may lead to forfeiture of all or part of his accumulated gain time. See § 944.28(2)(a), Fla. Stat. (2003); Green v. State, 830 So.2d 142 (Fla. 3d DCA 2002).


author: RAMIREZ, J.

text:
    Maria PUENTES and Jose Puentes, Appellants, v. TENET HIALEAH HEALTHSYSTEM, Appellee.
    No. 3D02-2107.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.

      Orville McKenzie, for appellants.
    Parenti, Falk, Waas, Hernandez & Cor-tina, and Norman M. Waas, Coral Gables, for appellee.
    Before GODERICH, SHEVIN, and RAMIREZ, JJ.
   RAMIREZ, J.

Maria and Jose Puentes appeal the dismissal of their negligence suit against ap-pellee Tenet Hialeah Healthsystem (“Hialeah Hospital”) for failure to comply with the presuit notice requirements of chapter 766.106(l)(a), Florida Statutes (1999). We affirm because the negligence action arises from Puentes’ course of treatment.

Maria Puentes had dinner at El Sub-marino restaurant on the evening of May 19, 1999. She ordered a fish dinner and immediately had an allergic reaction. Her symptoms became progressively worse, so she went to Hialeah Hospital two days later. The hospital gave her Benadryl and sent her home. Her condition again worsened. She returned to the hospital and was admitted to the intensive care unit.

Her attending physician ordered a hypoallergenic diet free of eggs, milk or orange juice. The hospital kitchen employees failed to follow that order. Puentes’ condition worsened as a result of eating eggs, milk or orange juice. Her doctor then spoke personally with the dietician, but Puentes continued to receive a nonhypoallergenic diet which caused her condition to worsen further. She spent a total of eight days in the intensive care unit.

Puentes sued both the restaurant and the hospital for negligence. The trial court granted the hospital’s motion to dismiss Puentes’ complaint against it, finding that the hospital was entitled to presuit notice as a “health care provider” under section 766.105, Florida Statutes (1999). Because the two year statute of limitations for medical malpractice suits had expired, the trial court dismissed the complaint with prejudice.

Puentes argues that the hospital was not entitled to presuit notice because the hospital’s dieticians and kitchen employees are not included in the statutory definition of “health care provider.” See Fla. Stat. § 766.105 (1999). We do not agree. Puentes’ argument is identical to the appellant’s argument in Goldman v. Halifax Med. Ctr., Inc., 662 So.2d 367, 368 (Fla. 5th DCA 1995), where Goldman argued that the active tortfeasor — a radiologic technician — was not a statutorily defined health care provider so it would be illogical to make her comply with chapter 766 presuit notice requirements. The Fifth District held that chapter 766 presuit requirements must be met when a hospital employee causes injury during the course of treatment for the patient’s health. Id. at 369. In Goldman, the injury occurred when the patient’s breast implant ruptured during the taking of a mammogram by the hospital’s radiologic technician. The court concluded that the technician was providing health care and that her negligence should be treated as the hospital’s negligence so that compliance with section 766.106 notice requirements was required.

In this case, Puentes alleges that the dieticians and kitchen employees aggravated her condition by giving her a diet contrary to what her doctor had ordered. We conclude that Puentes’ diet was part of her medical treatment because her medical condition is what caused the doctor to order the hypoallergenic diet and to speak personally with the dietician when his orders were not followed. Negligence arises here only in the context of Puentes’ medical condition. The hospital would not be negligent for giving a nonhypoallergenic meal to someone whose medical condition did not require otherwise.

Puentes’ claim is thus an action for medical malpractice as it arises out of “the rendering of or failure to render, medical care or services.” See § 766.106(l)(a), Fla. Stat.(1999); see also J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla.1994) (medical malpractice is a claim for damages arising out of the treatment or care by any health provider). At trial, Puentes must show that the hospital’s failure to give her a hypoallergenic meal fell below the standard of care for patients who require special diets, thereby giving rise to the cause of action. See Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 327-28 (Fla. 1st DCA 2002). (“To prevail in a medical malpractice case, a plaintiff must establish the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that such breach proximately caused the alleged damages.”).

We therefore conclude that the trial court correctly dismissed the claims against the hospital due to Puentes’ failure to comply with statutory notice requirements because Hialeah Hospital was entitled to presuit notice.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Miguel SANCHEZ, Appellee.
    No. 3D02-2280.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Charles J. Crist, Jr., Attorney General and Linda S. Katz, Assistant Attorney General, for appellant.
    Jorge E. Alonso, Coral Gables, for ap-pellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

The state appeals an order dismissing a trafficking in cannabis charge against the appellant. Sanchez was charged by information with trafficking in cannabis in violation of section 893.135(1), Fla. Stat. (2002), and possession of cannabis (more than 20 grams) in violation of section 893.13(6)(a), after police discovered 129 cannabis plants, weighing 75 pounds, inside of his personal residence. Defense counsel filed a sworn motion to dismiss the charge of trafficking in cannabis on the grounds that the number of cannabis plants found were less than the amount prescribed by section 893.135(l)(a). The trial court granted the motion to dismiss, and reduced the trafficking charge to possession of marijuana with intent to sell or deliver.

We reverse based upon our recent decision in State v. Castro, 840 So.2d 1121 (Fla. 3d DCA 2003). In Castro, we agreed with our sister court in Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct. 4, 2002), that the weight of processed cannabis could be combined with the weight of growing plants in order to reach the amount necessary to qualify for a trafficking offense. Therefore, Sanchez’s charge of trafficking was properly justified by the 75 pounds of cannabis (both processed and unprocessed) found in his residence.

Accordingly, the order under review is reversed with directions that the trafficking charge be reinstated.

      . Section 893.135(l)(a) provides:
      Any person who knowingly sells, purchases, manufacturers, delivers, or brings into this state, or who is knowingly in actual or constructive possession of in excess of 25 pounds of cannabis, or 300 or more cannabis plants, commits a felony of the first degree....


text:
    COMMODORE REALTY, INC., Appellant, v. CLASSIC CARPET & TILE, INC., et al., Appellees.
    No. 3D02-2635.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    David Harris Singer, Hollywood, and Maureen O’Donnell, for appellant.
    Vernis & Bowling and James R. (Jack) Bridges, Islamorada, for appellees.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   PER CURIAM.

The trial court abused its discretion by granting the defendants’ motion to transfer venue, pursuant to section 47.122, Florida Statutes (2001), where the defendants failed to meet their burden of establishing “before the trial court that either substantial inconvenience or undue expense requires a change for the convenience of the parties or witnesses.” Safety Nat’l Cas. Corp. v. Florida Mun. Ins. Trust, 818 So.2d 612, 613 (Fla. 5th DCA 2002). Therefore, we reverse the order transferring venue. See Wimauma Produce, Inc. v. William P. Hearn Produce Co., 775 So.2d 1011 (Fla. 3d DCA 2001).

Reversed and remanded.


text:
    Luca GIUSSANI, Appellant, v. SCULPTORS OF SPACE, LLC., Appellee.
    No. 3D02-2963.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Michael H. Wolf (Sunrise), for appellant.
    Frederick C. Sake (Miami Beach),'’for appellee.
    Before SCHWARTZ, C.J., and COPE and LEVY, JJ.
   PER CURIAM.

The existence of genuine issues of material fact created by the defendant’s sworn answers to interrogatories demonstrate the impropriety of the summary judgment entered for the plaintiff below. The judgment is therefore reversed and the cause remanded for trial.


text:
    Stewart A. MERKIN, Trustee, Appellant, v. FIRST EQUITABLE REALTY III, LTD., etc., Appellee.
    Nos. 3D02-3302, 3D02-1689.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Mark A. Kamilar, Coconut Grove, for appellant.
    Weiss Serota Helfman Pastoriza & Gue-des and Joseph H. Serota, Miami, and Jose S. Talavera, for appellee.
    Before LEVY, FLETCHER, and SHEVIN, JJ.
   PER CURIAM.

After a thorough review of the merits of these consolidated appeals we conclude that the trial court correctly granted final summary judgment, and awarded attorneys’ fees, in favor of First Equity Realty III, Ltd.

Affirmed.


text:
    Sergei TSUKANOV and Olga Tsukanov, Appellants, v. VERYSELL-HOLDING LLC, a foreign limited liability company, and Mikhail Krasnov, Appellees.
    No. 3D03-159.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Lyons & Farrar, P.A. and Charles O. Farrar, Jr., Coral Gables, for appellant.
    Seidman, Prewitt & Dibello, P.A. and Darin A. DiBello, Miami, and Thais Hernandez, for appellees.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   PER CURIAM.

Because competent substantial evidence exists to support the trial court’s determination that jurisdiction was proper, we affirm. See Wendt v. Horowitz, 822 So.2d 1252, 1254 (Fla.2002) (stating that in reviewing a motion to dismiss for lack of personal jurisdiction, the court will derive facts from the affidavits, transcripts, and records supporting and opposing the motion to dismiss).


text:
    Luis LUIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1779.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Pelayo M. Duran and Adis Riveron, Coral Gables, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and GODERICH, JJ.
   PER CURIAM.

Affirmed. See Goodrich v. State, 834 So.2d 893 (Fla. 3d DCA 2002).


text:
    The STATE of Florida, Appellant, v. Beverlyn A. McDONALD, Appellee.
    No. 3D02-2021.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.

      Charles J. Crist, Jr., Attorney General and Michael J. Neimand (Fort Lauder-dale), Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender and Manuel Alvarez, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   PER CURIAM.

Reversed and remanded for further proceedings in accordance with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).


text:
    C.W., Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent.
    No. 3D03-575.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Powell & Steinberg, and Phillip Stein-berg, for petitioner.
    Mercedes E. Scopetta; Calianne P. Lantz, for respondent.
    Before SCHWARTZ, C.J., and SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

We deny the Petition for Writ of Prohibition, but we write to express our concern about a statement made by the trial court that “I do not do telephone appearances.”

Rule 2.071(c), Florida Rule of Judicial Administration, provides as follows:

Use Only by Requesting Party. A county or circuit court judge may, upon the written request of a party upon reasonable notice to all other parties, permit a requesting party to participate through communication equipment in a scheduled motion hearing; however, any such request (except in criminal, delinquency, and appellate proceedings) must be granted, absent a showing of good cause to deny the same, where the hearing is set for not longer than 15 minutes, (emphasis added).

A blanket rule by the trial court not to do telephone appearances would be a violation of this rule. Petitioner, however, never made a written request to appear tele-phonically. Thus, no violation occurred in this case. Nor would a violation of the rule necessarily require the disqualification of the trial judge.

We therefore deny the petition.

      . Petitioner's counsel claims that no written request was made because he had no notice of the hearing. The Motion to Disqualify Judge does not allege that and the limited record before us does not establish whether or not that is correct.

      . Although we are denying relief because the motion for disqualification was legally insufficient, given everything that has transpired in this case, we suggest that the trial court may wish to recuse itself on its own and let another judge handle this case.


text:
    MIAMI-DADE COUNTY, Petitioner, v. Guy E. PEART and Lynett Peart, Respondent.
    No. 3D03-903.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Robert A. Ginsburg, Miami-Dade County Attorney, and Jeffrey P. Ehrlich, Assistant County Attorney, for petitioner.
    Guy E. Peart and Lynett Peart, in proper persons.

      Before SCHWARTZ, C.J., and GODERICH, and WELLS, JJ.
   PER CURIAM.

This is a petition for writ of prohibition which seeks to prevent the Eleventh Judicial Circuit Court Appellate Division from considering an appeal from a decision of an administrative hearing officer. Petitioner alleges that respondents failed to timely file a notice of appeal within the 30-day time limit prescribed in Florida Rule of Appellate Procedure 9.110(c). We agree and grant prohibition.

On May 13, 2002, an administrative hearing officer rendered a decision finding that respondents had illegally maintained a commercial vehicle. Respondents filed their notice of appeal in the circuit court on June 13, 2002. Because this notice was filed 31 days after the hearing officer rendered her decision (one day late), the County moved to dismiss the appeal for lack of jurisdiction. The circuit court, via a clerk’s order, denied the County’s motion without explanation.

We find that respondents’ notice of appeal was untimely under Rule 9.110(c). See Crapp v. Criminal Justice Standards & Training Comm’n, 753 So.2d 787 (Fla. 3d DCA 2000) (finding that an appeal from a lower administrative tribunal was untimely where the notice of appeal was filed 2 days late); Hawks v. Walker, 409 So.2d 524, 525 (Fla. 5th DCA 1982) (finding that a notice of appeal filed two days late was untimely); State Dept. of Pollution Control v. Sebring Park Properties, Inc., 317 So.2d 772 (Fla. 2d DCA 1975) (finding untimely a notice of appeal that was filed one day late).

Under Rule 9.110, the “[f]ailure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect.” First Nat’l Bank in Fort Myers v. Florida Unemployment Appeals Comm’n, 461 So.2d 208, 208 (Fla. 1st DCA 1984). Thus, the lower court should have dismissed Respondents’ appeal. Id.; see also Crapp, 753 So.2d at 787 (“[a]n appellate court cannot exercise jurisdiction over a cause where a notice of appeal has not been timely filed”); Hawks, 409 So.2d at 525 (“late filing is a defect no one can correct, not even the court”).

Because the circuit court did not dismiss Respondents’ appeal as it should have, this court may exercise its prohibition power to prevent the lower court from exercising jurisdiction in this case. See Goodwin v. State, 826 So.2d 1022 (Fla. 3d DCA 2001); Peltz v. District Court of Appeal, Third Dist., 605 So.2d 865 (Fla.1992).

Prohibition granted.


text:
    Douglas Montgomery LLOYD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3266.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

      Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before JORGENSON, COPE, and GREEN, JJ.
   PER CURIAM.

Under the state’s proper confession of error, we vacate the defendant’s conviction and 366-day suspended sentence for possession of a firearm. In all other respects, we affirm. See Perez v. State, 648 So.2d 715 (Fla.1995); State v. Hernandez, 841 So.2d 469 (Fla. 3d DCA 2002).


text:
    KENDALL VILLAGE, INC., etc., et al., Appellant, v. U.S. DEVELOPMENT, LTD., by and through its general partner, U.S. DEVELOPMENT CORP., Appellee.
    No. 3D02-599.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Adorno & Yoss, Jack R. Reiter and Natalie J. Carlos, Miami, for appellant.
    Kathleen M. Weber Raskin, for appellee.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   PER CURIAM.

A review of the record indicates that the plaintiff, U.S. Development, Ltd., by and through its general partner U.S. Development Corp., did not meet its burden of establishing that the offer of judgment made by Jeffrey Berkowitz pursuant to section 768.79, Florida Statutes (2001), was not made in good faith. See Donohoe v. Starmed Staffing, Inc., 743 So.2d 623, 624 (Fla. 2d DCA 1999); Pacer Tech. v. Lee Pharms., Inc., 737 So.2d 1238 (Fla. 3d DCA 1999). As such, the trial court abused its discretion by denying Berkow-itz’s motion for attorney’s fees. This cause is remanded with directions to award attorney’s fees to Berkowitz.

Reversed and remanded with directions.


text:
    Ana G. CAREAGA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellees.
    No. 3D02-1375.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Ana G. Careaga, in proper person.
    John D. Maher (Tallahassee), for appel-lee.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   PER CURIAM.

The appeals referee’s findings of fact, which are supported by competent, substantial evidence, indicate that the claimant, Ana G. Careaga, voluntarily left work with good cause attributable to the employing unit. Therefore, we reverse the Unemployment Appeals Commission’s conclusion to the contrary and remand with directions to afford the claimant unemployment benefits. See Perez v. American Med., Inc., 842 So.2d 285 (Fla. 3d DCA 2003).

Reversed and remanded.


author: FULMER, Judge.

text:
    In the Interest of C.V.T., Jr., a child, K.R., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-1175.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
    J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellant.

      William Byrne Isaacs, Port Charlotte, for Appellee.
   FULMER, Judge.

K.R. (the Mother) appeals a final judgment that terminated her parental rights to her child, C.V.T., Jr. The Mother raises six issues on appeal. We find merit in five of the issues raised and reverse.

On March 23, 2001, the Department of Children and Family Services filed a petition for termination of parental rights alleging three grounds: (1) that the Mother engaged in conduct toward the child which demonstrates that the continuing involvement of the Mother in the parent-child relationship threatens the life, safety, or physical, mental, or emotional health of the child irrespective of the provision of services, pursuant to section 39.806(l)(c), Florida Statutes (2000); (2) that the Mother failed to substantially comply with her case plan, pursuant to section 39.806(l)(e); and (3) that the Mother engaged in egregious conduct that endangers the life, health, or safety of the child, pursuant to section 39.806(l)(f).

After an adjudicatory hearing on September 26 and November 9, 2001, the trial court adopted the three grounds for termination. The trial court found, in part, that: the Mother has a substance abuse problem with cocaine which interferes with her ability to properly parent her child; the Mother neglected her child in that she allowed the child to be deprived of necessary food, clothing, shelter, or medical care; the Mother was incarcerated in county jail at the time of the adjudicatory hearing and had been incarcerated for most of the child’s life; the child had lived with the Mother for a mere nine months since its birth in May 1998; and the Mother has demonstrated a history of unstable employment and housing.

The Mother contends, first, that the State failed to establish that she had a current substance abuse problem. The State counters that the Mother had a significant abuse problem, testing positive for three illicit substances in June 2000, and that the Mother was free of illegal substances at the time of trial in September 2001 only because she was incarcerated.

The evidence supports the trial court’s finding that the Mother had a substance abuse problem; however, the Mother had participated in treatment programs and was attempting to deal with her drug problem in order to comply with her case plan. The trial court’s order said nothing about the Mother’s attempt to deal with her drug problem and indicated instead that the Mother was a current drug user. Because the termination order rested primarily on the Mother’s drug abuse and the last evidence that the Mother used drugs was in June 2000, fifteen months prior to the termination hearing, we agree that the evidence of a current drug problem was lacking.

The Mother next argues that the Department failed to meet its burden of proving the egregious conduct ground for termination because drug usage alone does not constitute egregious conduct. In its order, the trial court found in regard to egregious conduct: “The biological mother has a substance abuse problem with cocaine which interferes with her ability to properly parent her child. The biological mother admitted that she uses cocaine when she is with the biological father.”

Pursuant to the statutory definition,

the term “egregious conduct” means abuse, abandonment, neglect, or any other conduct of the parent or parents that is deplorable, flagrant, or outrageous by a normal standard of conduct. Egregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child.

§ 39.806(l)(f)(2). We agree that egregious conduct is not a basis for the termination in this case based on the past drug use alone without connecting the drug use to any abuse, neglect, or specific harm to the child. See R.W.W. v. State, Dep’t of Children & Families (In re C.W.W.), 788 So.2d 1020 (Fla. 2d DCA 2001) (holding that past drug use would not support a finding of prospective neglect unless parent had failed to achieve results in a treatment program, and reversing the egregious conduct basis for termination because the trial court had made no findings to support that basis); see also C.C. v. Dep’t of Children & Family Servs., 812 So.2d 520, 522 (Fla. 1st DCA 2002) (stating that a parent’s substance abuse alone does not establish prospective neglect).

The Mother also argues that the trial court’s order failed to address the provision of services to the Mother. See § 39.806(l)(c). We agree with the Mother that R.W.W. supports reversal for this deficiency because, as in that case, the Department did not establish that the continuing involvement of the Mother with the child would threaten the child’s life, safety, or health irrespective of the provision of services. 788 So.2d at 1023.'

Likewise, the Department failed to establish that termination was the least restrictive means of preventing harm to the child. Although the Mother was given a year to complete a case plan and had not done so, at the time of the hearing the Mother was going to be released from incarceration within a month. If the Mother were able to continue making progress toward recovery, termination would not be the least restrictive means of preventing harm to the child. See B.B. v. State, Dep’t of Children & Families (In re G.R.), 793 So.2d 988 (Fla. 2d DCA 2001) (stating that there was no compelling need to rush to judgment where mother with substance abuse problem was making determined effort to rehabilitate herself); R.W.W., 788 So.2d 1020 (stating that Department failed to establish that termination was least restrictive means to prevent harm to child where Department did not demonstrate that child would be harmed by continued custody with foster family while Mother worked on case plan).

Finally, we agree with the Mother that the termination order contained vague findings regarding neglect and the Mother’s inability to provide for the child. It is not clear from the record what evidence the trial court relied on in making these findings other than the Mother’s drug problem. See C.C., 812 So.2d at 523 (remanding for reconsideration because fact findings in order under review were erroneous and incomplete).

Accordingly, we reverse the order terminating parental rights and remand for further proceedings.

Reversed and remanded.

CASANUEVA, J„ and THREADGILL, EDWARD F., Senior Judge, Concur.

      . The issues raised are: (1) there was no clear and convincing evidence that the Mother currently had a substance abuse problem; (2) the trial court erred in finding that a substance abuse problem constituted "egregious conduct”; (3) the trial court did not find that the provision of services would be futile; (4) the Department failed to establish that termination was the least restrictive means of preventing harm to the child; (5) the trial court's findings were vague, ambiguous, and lacked factual details; and (6) the trial court’s finding that the guardian ad litem recommended termination is not supported by clear and convincing evidence.


author: CASANUEVA, Judge.

text:
    Donald HIGHSMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2872.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
    James Marion Moorman, Public Defender, and Heather M. Gray, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Following the denial of his disposi-tive motion to suppress, Donald Highsmith was tried for and convicted of possession of cocaine. He now appeals from his judgment and sentence, contending that the trial court erred in failing to suppress the evidence because the search and seizure were based upon stale and insufficient information from a confidential informant. We agree with Mr. Highsmith and reverse his conviction.

Deputy James Gallon testified that on July 2, 2002, at 10 a.m., a confidential informant contacted the Hillsborough County Sheriffs Office and told him that a black male known on the street as “D” was selling cocaine on Main Street in West Tampa. The suspect was driving a blue Tempo, and he had crack cocaine in his car. The confidential informant made subsequent calls that same day with the same information, but Deputy Gallon never testified to the exact number or times of the calls. The latest possible hour of the last call, however, would have been approximately 4 p.m., when the officers went to roll call.

More than nine hours after the original tip and three hours after the last call, Deputy Gallon responded to the area and located an unoccupied car matching the general description given by the informant. Sometime after that initial sighting, Deputy Gallon saw Mr. Highsmith and another person get into the car and drive off, so the deputy followed the car approximately eight or nine blocks until it stopped. The deputy could see Mr. Highsmith and his passenger, still inside the car, looking down and carrying on a conversation. Although the deputy observed no criminal activity, his car and another unmarked vehicle surrounded Mr. Highsmith’s car. All four deputies then approached the blue Tempo to detain the suspect.

Neither Deputy Gallon, who was acquainted with Mr. Highsmith, nor the other deputies knew the suspect as “D”, yet they immediately asked him to step out of his vehicle. Deputy Viera-Roquemore testified that as soon as the defendant was removed from the vehicle he was placed in handcuffs and was not free to leave. Deputies then searched the car and found crack cocaine on the floorboard near the driver’s seat. Upon Deputy Gallon’s inquiry, Mr. Highsmith admitted that the contraband belonged to him. The exact sequence of all these events is murky, but the deputies apparently agreed and the police report reflects that the defendant was arrested at about 7:30 p.m.

Our review of the record convinces us that the stop and search of Mr. Highsmith’s car were unconstitutional because the stop occurred too long after the deputy’s receipt of an insufficiently detailed tip. In coming to this conclusion we are mindful of the presumption of correctness attached to a trial court’s ruling on a motion to suppress. However, having given deference to the trial court’s findings of historical fact, we are nevertheless charged with independently reviewing the mixed questions of law and fact that determine the constitutionality of the stop and search. Connor v. State, 803 So.2d 598, 608 (Fla.2001). An appellate court has the responsibility “to ensure that the law is applied uniformly in decisions based on similar facts.” Id.

The temporal proximity between the tip, the police response, and the sighting of the suspect is “of crucial significance” to the determination of reasonable suspicion. State v. Augustyn, 490 So.2d 104, 106 (Fla. 2d DCA 1986); see also Palmer v. State, 752 So.2d 98, 99 (Fla. 2d DCA 2000) (finding a lack of probable cause when officers acted on “limited information” received from a confidential informant earlier in the month); Vandiver v. State, 779 So.2d 289, 291 (Fla. 2d DCA 1998) (finding probable cause to stop based on the totality of the circumstances including verification of the tip within ten to fifteen minutes). In Augustyn, 490 So.2d at 104, the defendant’s neighbor informed the police that the defendant had been involved in several burglaries and was using a van, which was described in detail, to move stolen property. Officers immediately responded to the location identified by the informant and stopped the defendant’s van. The court held that the stop was valid, noting that the temporal proximity between the events was of crucial significance. Id. at 106. In this case, unlike the situation in Augustyn, the deputies stopped Mr. Highsmith’s car at least nine hours after the initial tip and three hours after the last tip. Thus, the important temporal connection between the significant events was missing.

Furthermore, the tip in this case was devoid of details. The informant vaguely described the suspect as a black male in a blue Tempo selling crack cocaine at a general location — Main Street in West Tampa. The type of drug involved was the only specific fact that would not have been readily apparent to anyone happening by the area. The confidential informant did not identify the manner in which the transactions occurred or the precise location of the drugs, other than the fact that the suspect possessed some crack cocaine in his car. “D”’s age, build, complexion, or clothing were not described; the car was identified only in generic terms without a license tag number, condition, or approximate year of the model; the location-— Main Street — was never precisely pinpointed by address or intersection; and no particulars of the alleged drug transactions were provided. Furthermore, there was never any verification of the suspect’s street name. After the stop, Deputy Gallon commanded “D” to “get out of the car,” but neither Mr. Highsmith’s behavior nor any other evidence established that the defendant routinely answered to that name. In short, upholding a detention and search based on this tip would authorize law enforcement officers, hours after receipt of the information, to stop any number of blue Tempos being driven by black men in a densely populated area of West Tampa.

The court’s duty is to evaluate the legality of the stop and search from the “totality of circumstances.” State v. Butler, 655 So.2d 1123, 1131 (Fla.1995). Those circumstances include the informant’s credibility, the extent of detail in the tip, and the subsequent corroboration. Id. Here, although the informant’s credibility was subject to attack at the suppression hearing and at trial, we decline to consider that factor in our analysis. But the lack of detail in the tip and the failure of the deputies to corroborate the information in a reasonable amount of time are striking in contrast to the circumstances surrounding the stop and search upheld in Butler. There the informant described the suspect as “a black male, about 5'10" tall, wearing a black jacket, white t-shirt, and blue jeans”; he pinpointed a specific location where the criminal activity was allegedly occurring — “on the sidewalk in front of 726 West Beaver Street”; he recounted the particulars of the type of drug and the manner of its sale — “the described drug seller wrapped cocaine inside rolled-up one-dollar bills and placed them in his pants pocket, ready to sell”; and the officer corroborated the tip “[wjithin fifteen minutes” of its receipt. Id.

In conclusion, we hold that the totality of the circumstances in this case did not, as a matter of law, give rise to reasonable suspicion for the stop or probable cause to arrest the defendant. Accordingly, we reverse Mr. Highsmith’s conviction and remand this cause for the trial court to discharge the defendant.

NORTHCUTT, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: NORTHCUTT, Judge.

text:
    David CRAMER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-660.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
   NORTHCUTT, Judge.

David Cramer appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

Cramer was convicted of aggravated assault with a firearm and sentenced to five years’ imprisonment as a prison re-leasee reoffender. After his conviction and sentence were affirmed, he filed a rule 3.850 motion alleging that his trial counsel was ineffective for failing to object to Cramer being tried before a jury while shackled and wearing a jail-issued jumpsuit.

A criminal defendant cannot be compelled to stand trial in prison clothing because it could impair the defendant’s presumption of innocence, which is a basic component of the fundamental right to a fair trial. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Torres-Arboledo v. State, 524 So.2d 403 (Fla.1988). Placing the defendant in restraints such as shackles or handcuffs can also affect the defendant’s presumption of innocence, but under proper circumstances this risk may be outweighed by the court’s obligation to maintain safety and security in the courtroom. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Diaz v. State, 513 So.2d 1045 (Fla.1987). Here, Cramer’s motion alleged that if, upon objection by counsel, the trial court had inquired into the matter it would have concluded that he presented no security risk during his trial. Nevertheless, the circuit court summarily denied Cramer’s motion, citing Buenoano v. Dugger, 559 So.2d 1116 (Fla.1990), for the proposition that he should have raised this issue on direct appeal.

Buenoano does not control this case. In Buenoano, the defendant alleged that she was deprived of a fair trial because she stood trial while wearing leg irons. She did not allege that her counsel was ineffective for failing to object. In contrast, in Sims v. State, 602 So.2d 1253 (Fla.1992), the defendant argued that his trial counsel was ineffective because he failed to object when Sims was brought into the courtroom wearing shackles. The Supreme Court rejected the argument, but not because it should have been raised on appeal. Rather, the court held that Sims’s trial counsel-made a reasonable strategic decision not to object because it was possible the jury did not see the shackles and counsel did not want to call the jurors’ attention to them.

Cramer’s motion alleged a facially sufficient ground for relief. See Pineda v. State, 805 So.2d 116 (Fla. 4th DCA 2002); Waters v. State, 779 So.2d 625 (Fla. 1st DCA 2001). We reverse and remand for an evidentiary hearing or the attachment of portions of the record that conclusively refute Cramer’s claim.

Reversed and remanded with directions.

WHATLEY and SALCINES, JJ, Concur.


author: STRINGER, Judge.

text:
    Clara CORTINA, Appellant, v. The STAFFING SOURCE, INC., Appellee.
    No. 2D02-4437.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.

      Yamile Haibi, Tampa, for Appellant.
    Jeffrey R. Fuller of Brasfield, Fuller, Freeman, Lovell & O’Hern, P.A., St. Pe-tersburg, for Appellee.
   STRINGER, Judge.

Clara Cortina seeks review of the trial court’s order granting a temporary injunction enforcing a noncompete agreement in favor of The Staffing Source, Inc. We reverse because The Staffing Source failed to provide Cortina with sufficient notice of the hearing on the temporary injunction.

Florida Rule of Civil Procedure 1.610 requires reasonable notice before a hearing on a complaint for temporary injunction. Harrison v. Palm Harbor MRI, Inc., 703 So.2d 1117, 1119 (Fla. 2d DCA 1997); Fla. High Sch. Activities Ass’n, Inc. v. Benitez, 748 So.2d 358, 359 (Fla. 5th DCA 1999). “[Reasonable notice is defined as that notice that provides a ‘meaningful opportunity to prepare and to defend against the allegations of the motion or complaint. It means the ability to offer evidence and to secure a record of the proceedings.’ ” Harrison, 703 So.2d at 1119 (quoting Pecora v. Pecora, 697 So.2d 1267, 1268 (Fla. 5th DCA 1997)). The Fifth District has offered the following explanation for the reasonable notice requirement in temporary injunction cases:

[Reasonable notice] is especially important because of the heavy burden this court places on a litigant who seeks to dissolve a temporary injunction after a hearing conducted with notice. This court has ruled repeatedly that any argument or evidence that could have been offered at the initial temporary injunction hearing cannot be the basis of a motion to dissolve. A motion to dissolve must be based on evidence of a change in conditions occurring after entry of the temporary injunction with notice.

Pecora, 697 So.2d at 1268 n. 3. Thus, courts have held that notice given on the same day as a hearing was insufficient. See Benitez, 748 So.2d at 360; Pecora, 697 So.2d at 1269. In contrast, this court has held that seven days’ notice of a hearing on a temporary injunction was “reasonable.” See Harrison, 703 So.2d at 1119.

In this case, Cortina was given notice at 10:55 a.m. on the day before the 11:25 a.m. hearing. At the hearing, Corti-na told the court that she needed time to procure the services of an attorney so that she could properly prepare and defend against the allegations of the complaint. While nine business hours is not as egregious as the same day notice provided in Benitez and Pécora, it is clear that it did not provide Cortina with enough time to secure an attorney and collect evidence to defend against the complaint.

Accordingly, we reverse and remand for a new hearing on the complaint for temporary injunction. Our reversal renders Cortina’s remaining issues moot, but we remind the trial court that “[c]lear, definite, and unequivocally sufficient factual findings must support each of the four conclusions necessary to justify entry of a temporary injunction.” Richard v. Behavioral Healthcare Options, Inc., 647 So.2d 976, 978 (Fla. 2d DCA 1994).

Reversed and remanded.

ALTENBERND, C.J., and NORTHCUTT, J., Concur.

      . Florida Rule of Civil Procedure 1.610(a) provides for a temporary injunction without notice, but that provision is not at issue here since the pleadings do not contain the assertions required by the rule.


author: SALCINES, Judge.

text:
    Thomas MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3664.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
   SALCINES, Judge.

Thomas Mills challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.

In his motion, Mills alleged that he pleaded to trafficking in more than 28 but less than 200 grams of cocaine. He further alleged that the three-year mandatory minimum term of imprisonment imposed by the trial court pursuant to section 893.135(l)(b)(l)(a), Florida Statutes (2000), is illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). But see State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found: “As of April 29, 2002, the Florida Legislature cured the single subject rule violation by reenacting the provisions originally contained in Chapter 99-188. See chapters 2002-208 - 2002-212, Laws of Florida. In so doing, the Florida Legislature provided for the retroactive application of each reenactment to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

Mills alleged that he committed the offense of trafficking in cocaine on December 3, 2000, which is within the Taylor window. See Green, 839 So.2d at 750 n. 1. Therefore, Mills has presented a facially sufficient claim. See Sims, 838 So.2d 658.

We reverse the order of the trial court and remand for further consideration of Mills’ claim. If Mills is correct that the trial court imposed a mandatory minimum pursuant to section 893.135(l)(b)(l)(a) where the offense was committed within the Taylor window, the trial court shall resentence him under the 1997 version of that statute. See Green, 839 So.2d 748. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Reversed and remanded with instructions.

WHATLEY and CASANUEVA, JJ„ Concur.


author: WHATLEY, Judge.

text:
    James W. TOBIN, Appellant, v. Janet H. VASEY and North Naples Fire Control & Rescue District, a Florida Independent Special Fire Control District, Appellees.
    No. 2D02-5010.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.

      Raymond L. Bass, Jr. of Bass & Cher-noff, Naples, for Appellant.
    Frederick R. Hardt, Naples, for Appel-lee Vasey.
    No appearance for North Naples Fire Control & Rescue District.
   WHATLEY, Judge.

James W. Tobin appeals an order granting a temporary injunction, which enjoined the North Naples Fire Control and Rescue District (the District) from paying Tobin $300,000 in severance compensation. Janet H. Vasey filed a complaint, as a taxpayer, against Tobin and the District and then applied for the injunction, contending that the payment of $300,000 in public funds was an unconstitutional exercise of the Distriet’s authority and that it was in excess of the severance pay provisions of Tobin’s employment agreement. The District did not oppose the injunction. We must reverse because the circuit court’s order fails to make the necessary findings supporting injunctive relief.

The following findings are necessary to support injunctive relief: “1) the likelihood of irreparable harm; 2) the unavailability of an adequate remedy at law; 3) substantial likelihood of success on the merits; and 4) considerations of the public interest.” Snibbe v. Napoleonic Soc’y of Am., Inc., 682 So.2d 568, 570 (Fla. 2d DCA 1996) (quoting Richard v. Behavioral Healthcare Options, Inc., 647 So.2d 976, 978 (Fla. 2d DCA 1994)). An injunction must specify the reasons for its entry and the findings supporting the four elements must be clear, definite, and unequivocal. Id. In the present case, the injunction makes no findings regarding the above four elements.

Vasey argues that the injunction should be affirmed because the District did not oppose the entry of the injunction and the injunction was not entered against To-bin. We disagree. “A person whose rights and interests are to be affected by a decree and whose actions with reference to the subject matter of litigation are to be controlled by a decree is a necessary party to the action and the trial court cannot proceed without that person.” Blue Dolphin Fiberglass Pools of Fla., Inc. v. Swim Indus. Corp., 597 So.2d 808, 809 (Fla. 2d DCA 1992).

In Memorial Health Systems, Inc. v. Halifax Hospice, Inc., 689 So.2d 373 (Fla. 1st DCA 1997), Halifax Hospice filed an action against Florida’s Agency for Health Care Administration (the Agency), alleging that Memorial was not eligible for licen-sure unless a certain condition was met. Without naming Memorial as a party, Halifax obtained a temporary injunction preventing the Agency from issuing Memorial a license. Thereafter, Halifax argued that Memorial could not file a motion to dissolve the temporary injunction, because it was not named as a party defendant.

The First District noted that an injunction binds a named defendant and also those identified with him in interest and in privity with him. Id. at 375. In concluding that Memorial had standing to file a motion to dissolve the temporary injunction, the court held that a party may move to dissolve an injunction if the injunction injuriously affects his interests, even though the order is not issued against him. Id.

In the instant case, Tobin was a named defendant in the suit. Further, the injunction clearly affects Tobin’s interests, and he was therefore a necessary party to the action. Because Tobin objected to the entry of the injunction, the circuit court was required to make the required findings supporting injunctive relief, and it erred in failing to do so. Accordingly, we reverse the order granting a temporary injunction and remand for further proceedings consistent with this opinion.

Reversed and remanded.

FULMER and SILBERMAN, JJ., Concur.

      . The District filed a notice of nonparticipation in this appeal.