author: GREEN, J.

text:
    The STATE of Florida, Petitioner, v. Alexander JAMES, Respondent.
    No. 3D03-2143.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Rehearing and Rehearing En Banc Denied March 10, 2004.

      Charles J. Crist, Jr., Attorney General and Erin K Zack, Assistant Attorney General, for petitioner.
    David Michael Tarlow, for respondent.
    Before LEVY, GREEN, and FLETCHER, JJ.
   GREEN, J.

The State of Florida has brought this petition for issuance of a writ of certiorari seeking to quash an order of the trial court determining that the respondent/defendant, Alexander James, is entitled to utilize a “castle doctrine” defense and concomitant jury instruction at his upcoming trial for second degree murder. At issue is whether James, who was a social guest or visitor in the home of another at the time of his alleged commission of second degree murder, is entitled to the “castle doctrine” privilege and jury instruction. We conclude that he is not and for the reasons which follow, grant the petition and quash the circuit court’s order under review.

Respondent James had been acquainted with a woman named Semantha Beal for approximately one week before he came to her apartment on the morning of April 17, 1997. The respondent had been to Beal’s apartment once before to assist her in putting together a bed frame. The respondent and Beal had agreed that on April 17 they would travel together from Beal’s apartment to the residence of Beal’s mother so that James could perform some electrical work there. When James arrived at Beal’s apartment, Beal answered the door wearing a black negligee and invited him inside. They engaged in consensual sex and later showered together.

Shortly thereafter, the victim, Larry Ferguson, Beal’s allegedly abusive ex-boyfriend, showed up at Beal’s apartment. Beal went to the front door and told the victim to leave because she had a boyfriend in her apartment. Beal and the respondent thereafter got dressed to leave.

As Beal and the respondent were exiting the apartment, they spotted the victim who was still waiting outside. The victim grabbed Beal and began to choke her. The respondent intervened to prevent the victim from hurting her. The three ended up back in the apartment. Once there, the respondent and the victim continued to struggle and Beal was able to flee her apartment to telephone for help.

During the struggle between the respondent and the victim, a gun and the victim’s cellular telephone fell to the floor. The respondent picked up the gun and the victim fled into the bedroom. Beal testified during her deposition that as she was running back to her apartment, she saw the respondent standing in the entrance door to the apartment with his back facing her. The respondent extended his right arm up in front of himself and fired a shot through the partially closed bedroom door. The bullet hit the victim in the chest at a downward angle. The victim died a few days later and the respondent was charged with second degree murder.

Prior to jury selection, the state moved in limine to prevent the respondent from arguing that he had no duty to retreat from the apartment prior to resorting to deadly force under the “castle doctrine.” The trial court denied the motion, ruling that the respondent, as a guest or invitee, had a greater right to be in the apartment than the victim as a trespasser. The state now seeks the issuance of a writ of certiorari quashing this order. We grant the petition.

Both Florida statutory and common law permit the use of deadly force in self-defense if a person reasonably believes that such force is necessary to prevent imminent death or great bodily harm. Weiand v. State, 732 So.2d 1044, 1049 (Fla. 1999). Specifically, section 776.012, Florida Statutes (1995), provides that “a person ... is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony.” Even under these circumstances, there is still a Florida common law duty to use every reasonable means to avoid the danger, including retreat, prior to using deadly force. We-iand, 732 So.2d at 1049.

The “duty to retreat” rule has an exception, known as the “castle doctrine,” which espouses that one is not required to retreat from one’s residence, or one’s “castle,” before using deadly force in self-defense, so long as the deadly force is necessary to prevent death or great bodily harm. Id. Florida courts have defined the castle doctrine as a privilege one enjoys in one’s own dwelling place. The Florida Supreme Court has said:

when one is violently assaulted in his own house or immediately surrounding premises, he is not obliged to retreat but may stand his ground and use such force as prudence and caution would dictate as necessary to avoid death or great bodily harm. When in his home he has “retreated to the wall.” ... [A] man is under no duty to retreat when attacked in his own home. His home is his ultimate sanctuary.

Id. at 1050 (quoting Hedges v. State, 172 So.2d 824, 827 (Fla.1965)). See also Alday v. State, 57 So.2d 333, 333 (Fla.1952) (“The law authorizes one whose home is assaulted without lawful authority to use such force as is necessary to repel the assailant.”); Russell v. State, 61 Fla. 50, 54 So. 360, 361 (1911) (“One attacked in his home need not retreat, and he may use all necessary force to eject the intruder, whom he may kill in doing it, if this extreme measure appears unavoidable.”); but see Williamson v. State, 101 Fla. 1219, 133 So. 109, 110 (1931)(denying castle doctrine protection to defendant for homicide committed in residence from which defendant had moved). The castle doctrine privilege of non-retreat is “equally available to all those lawfully residing in the premises, provided, of course, that the use of deadly force was necessary to prevent death or great bodily harm.” Weiand, 732 So.2d at 1057.

We have further extended the “castle doctrine” privilege to employees in their place of employment, while lawfully engaged in their occupations. See Redondo v. State, 380 So.2d 1107,1108 (Fla. 3d DCA 1980)(fínding employee of convenience store entitled to non-retreat instruction when attacked at his place of business); State v. Smith, 376 So.2d 261 (Fla. 3d DCA 1979)(holding manager of store not obligated to retreat when attacked in or immediately adjacent to store). But see Frazier v. State, 681 So.2d 824, 825 (Fla. 2d DCA 1996)(agreeing that castle doctrine protects a worker in the workplace but making an exception where the aggressor was a co-worker). To date, this has been the only extension of the “castle doctrine” protection to a person not attacked in his or her own dwelling or residence.

The issue before us comes down to whether the castle doctrine privilege should be further extended to a temporary visitor or guest, since the respondent was not a resident of the apartment at the time of the alleged incident. We think that a further extension of the “castle doctrine” privilege to include a temporary social guest or visitor must be weighed against the underlying policy consideration of the “duty to retreat” rule as enunciated by Justice Overton’s dissenting opinion in State v. Bobbitt, 415 So.2d 724, 728 (Fla.1982) (Overton, J., dissenting), and later adopted by the Supreme Court in Weiand, 732 So.2d at 1051: “[hjuman life is precious, and deadly combat should be avoided if at all possible when imminent danger to oneself can be avoided.” Bobbitt, 415 So.2d at 728. Weiand, 732 So.2d at 1051. We believe that an overly broad extension of the castle doctrine would vitiate the retreat rule. The more places there are where one has castle doctrine protection, the fewer places there would be from which one has a duty to retreat. As the state insightfully observes, granting castle doctrine protection to a social guest or visitor would necessarily grant the guest or visitor innumerable castles wherever he or she is authorized to visit. That, in turn, would expand the privilege of non-retreat and encourage the use of deadly force. We agree and, therefore, decline to extend the “castle doctrine” privilege to a temporary social guest or visitor in the home of another.

The Florida Supreme Court has said that “the privilege of non-retreat from the home stems not from the sanctity of property rights, but from the time-honored principle that the home is the ultimate sanctuary.” Weiand, 732 So.2d at 1052. In the instant case, although the respondent was temporarily present in the apartment with its owner’s permission and had a right to be there as found by the trial court, this apartment could not, under the facts of this case, be deemed the respondent’s ultimate sanctuary. Thus, given the respondent’s status as a temporary social guest or visitor at the time of the alleged incident, he is not entitled to the use of a “castle doctrine” defense or jury instruction at his trial for second degree murder. We therefore grant the petition and quash the order under review.

Petition for certiorari granted and case is remanded for further proceedings consistent with this opinion.

      . At the time of the incident, Ms. Beal's legal name was Semantha Sweeting; she later married someone other than the respondent.

      . Beal had no telephone in her apartment.

      . The trial court reasoned that because the respondent had a consensual sexual liaison with the apartment's owner, he should be afforded the castle doctrine privilege. ("I expect home to be where you hang your hat and in this case, as I understand it, the defendant was doing more than hanging his hat; he was hanging his pants. So, I think he has the right to the same kind of protection in that home.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    COASTLINE OF INDIAN CREEK INC., etc., Appellant, v. Steven Zvi LEVINSON, etc., et al., Appellees.
    No. 3D02-2774.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Rehearing and Rehearing En Banc Denied March 10, 2004.
    Zorilla & Robin and Juan C. Zorrilla, Miami, for appellant/cross-appellee.
    Stabinski & Funt and Todd Stabinski, Miami; Lawrence & Daniels and Adam H. Lawrence, Miami, for appellees/cross-ap-pellants.
    Before SCHWARTZ, C.J., and LEVY and SHEVIN, JJ.
   PER CURIAM.

Without reaching any of the other issues presented, we conclude, on the appeal, that attorney’s fees were properly denied but, on the cross-appeal, that costs were improperly granted because the application under Florida Rule of Civil Procedure 1.442 was untimely served more than the thirty days after the judgment provided by Florida Rule of Civil Procedure 1.525. See Gulf Landings Ass’n, Inc. v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003); Wentworth v. Johnson, 845 So.2d 296 (Fla. 5th DCA 2003).

Affirmed in part, reversed in part.


author: COPE, J.

text:
    Stella ALEXANDER, Appellant, v. PENSKE LOGISTICS, INC. and Penske Leasing Corp., L.P., Appellees.
    No. 3D02-2793.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Rehearing, Rehearing En Banc and/or Certification Denied March 30, 2004.

      Mandina & Ginsberg and Marc Ginsberg, Miami Lakes, for appellant.
    Nicklaus & Hyatt, Coral Gables; Deutsch & Blumberg and James C. Blecke, Miami, for appellees.
    Before COPE, GODERICH and FLETCHER, JJ.
   COPE, J.

Stella Alexander, as personal representative of Michael Alexander, appeals a defense verdict in a wrongful death action. We affirm.

The decedent was a Monroe County deputy sheriff who was killed in a collision when he pulled out from a side street onto U.S. 1 in the Florida Keys. His car was struck broadside by a truck traveling on the highway.

The estate sued the appellees, one of whom is the owner and the other, the operator, of the truck. From a defense verdict, the estate has appealed.

The main contention on appeal is that the testimony of the Florida Highway Patrol traffic homicide investigator should have been excluded. The Highway Patrol trooper was found to be qualified as an expert in accident reconstruction. Based on his work at the scene of the accident, he offered his opinion that the deputy pulled out into the highway when the truck was so close that the truck driver did not have time to avoid the collision. Privately retained accident reconstruction experts testified for both sides as well.

The plaintiff estate first argues that, as a matter of law, a law enforcement officer cannot be allowed to testify as an expert because the jury will give the law enforcement officer’s testimony undue weight. We reject this argument, as there is no such rule of exclusion. When a law enforcement officer has been properly qualified as an expert, the officer may testify to matters that are within the officer’s expertise. See Segarra v. Mellerson, 675 So.2d 980, 982 (Fla. 3d DCA 1996); Gulley v. Pierce, 625 So.2d 45, 50 (Fla. 1st DCA 1993). If a litigant is concerned that jurors will give undue weight to the testimony of a law enforcement officer, that is a matter to be explored on voir dire, but is not a basis for exclusion of the witness or his testimony.

The estate argues, however, that the Highway Patrol trooper’s testimony in this case effectively told the jurors that the truck driver did not receive a ticket, and therefore the expert testimony should have been excluded. We likewise reject this argument.

The estate relies on cases holding that “questions suggesting that a driver has been charged with a traffic violation in connection with an accident constitute prejudicial error.” Penske Truck Leasing Co., LP v. Moore, 702 So.2d 1295, 1298 (Fla. 4th DCA 1997) (citations omitted); see also Hernandez v. State Farm Fire and Cas. Co., 700 So.2d 451, 452 (Fla. 4th DCA 1997); Spanagel v. Love, 585 So.2d 317, 318 (Fla. 5th DCA 1991). The logic is that the officer’s decision to give a ticket is simply a decision to charge someone with a violation of the traffic laws, but a charge of a law violation does not amount to an adjudication of guilt. The fact of the charge therefore is unduly prejudicial to place before the jury.

In the present case the trooper was never asked whether the truck driver received a ticket or not. At trial the trooper testified about his analysis of the accident scene. The rule against disclosing “who got the ticket” cannot be extended to prohibit the offering of otherwise proper expert testimony by a law enforcement officer in a traffic accident case.

The estate next argues that the expert testimony should have been excluded under the accident report privilege of subsection 316.066(4), Florida Statutes (2002). While most of the trooper’s work was based on physical measurements at the accident scene, he also conducted a post-Miranda interview of the truck driver. The estate reasons that the interview with the truck driver was privileged under the accident report privilege, and that any expert opinion based thereon would be subject to exclusion under the accident report privilege. The estate’s analysis is mistaken.

After the accident in this case, two Highway Patrol troopers came to the scene. Trooper Glenn conducted the accident investigation. Trooper Tierney was assigned to perform the traffic homicide investigation. The two officers performed their work independently of each other. Two separate reports were filed, an accident report and a traffic homicide report.

Trooper Tierney is the one who performed the traffic homicide investigation. At the trial, the court found him to be qualified as an expert in accident reconstruction. Trooper Tierney did not perform the accident investigation or use its results. Tierney administered Miranda warnings to the truck driver, and the truck driver waived his Miranda rights. No accident report privilege attached to the statements made by the truck driver to Trooper Tierney. See State v. Marshall, 695 So.2d 686 (Fla.1997).

The estate points out that in Hammond v. Jim Hinton Oil Co., Inc., 530 So.2d 995 (Fla. 1st DCA 1988), the First District held the accident report privilege applied to a traffic homicide report. Id. at 997. We distinguish that ease because the Florida Supreme Court’s later pronouncements in Marshall and State v. Norstrom, 613 So.2d 437, 440-41 (Fla.1993), are controlling and supersede Hammond to the extent of any inconsistency. In Marshall the court said:

To clarify our decision, we emphasize that the privilege granted under section 316.066 is applicable if no Miranda warnings are given. Further, if a law enforcement officer gives any indication to a defendant that he or she must respond to questions concerning the investigation of an accident, there must be an express statement by the law enforcement official to the defendant that “this is now a criminal investigation,” followed immediately by Miranda warnings, before any statement by the defendant may be admitted.

State v. Marshall, 695 So.2d at 686 (quoting Norstrom). We follow Marshall and Norstrom here.

We have carefully considered the estate’s remaining points on appeal and find no error to have been shown. The jury instruction was correct, and the trial court acted within its discretion in its remaining rulings.

Affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: FLETCHER, Judge.

text:
    Robert SEITZ, Appellant, v. The STATE of Florida, Appellee.
    No. 03-1628.
    District Court of Appeal of Florida, Third District.
    Jan. 14, 2004.
    Rehearing, Rehearing En Banc and Certification Denied March 10, 2004.

      Bierman, Shohat, Loewy & Klein and Michael A. Pizzi, Jr., Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi (Ft. Lauderdale), Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   FLETCHER, Judge.

Robert Seitz appeals an order revoking his probation. We affirm.

In December 2001, Robert Seitz pled no contest to five misdemeanor counts: battery, stalking, and several violations of a previously entered injunction protecting against repeat violence. Seitz was placed on probation, which included a special condition that Seitz comply with the injunction. In November 2002, the state filed an affidavit of violation of probation which alleged that Seitz engaged in stalking his victim by harassment, which included publicly publishing and disseminating pharmaceutical records of the victim to various persons in Dade County. The affidavit claimed such action served no legitimate purpose and caused Seitz’ victim to suffer emotional distress. After hearing arguments and evidence from both parties, the trial court revoked Seitz’ probation and sentenced him to four years in jail.

Seitz contends first that because he did not have any direct or indirect contact with the victim, the trial court abused its discretion by finding him guilty of stalking. He argues that the stalking statute is intended to govern conduct that falls just short of assault and battery, but which involves dangerous contact between stalker and victim. Here, he argues, the record is clear that there was no such contact.

Second, Seitz argues that the trial court’s application of the stalking statute to him is a due process violation as nothing in the statute gives notice that his behavior would be considered a violation of the statute. He argues that it is unconstitutional to apply a statute to a person in a manner so vague and broad that a person of common intelligence must guess at its meaning, or speculate whether his/her behavior will subject him/her to prosecution under that statute.

Third, Seitz argues that the court had no jurisdiction to revoke the three consecutive probation terms that had not yet commenced. Seitz contends that he could not have violated terms of probation that had not yet begun to run.

Contrary to Seitz’ first argument, section 784.048, Florida Statutes (2001) does not require contact, direct or indirect, with the victim. It provides in subpara-graph (2):

“Any person who willfully, maliciously and repeatedly follows or harasses another person commits the offense of stalking....”

“Harass” is defined in subparagraph (l)(a):

“ ‘Harass’ means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.”

Subparagraph (l)(b) defines “course of conduct” as:

“[A] pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of ‘course of conduct’.... ”

The statute does not require contact, direct or indirect, as a part of the offense of stalking, thus we reject Seitz’ first argument.

As to Seitz’ second (constitutional) contentions, these have previously been rejected. See Bouters v. State, 659 So.2d 235 (Fla.1995) and Pallas v. State, 636 So.2d 1358 (Fla. 3d DCA 1994), rev. granted & decision approved, 654 So.2d 127 (Fla.1995). Further analysis would serve no purpose.

Seitz bases his third argument (lack of jurisdiction) principally on State v. Hall, 641 So.2d 403 (Fla.1994), wherein the supreme court was answering the certified question:

“Whether the trial court could consider new charges in an amended affidavit of probation violation where the original affidavit was timely filed, but the amended affidavit was not filed until after the probationary period had expired because the defendant committed the alleged violation at, or near, the end of his probation period?”

The supreme court answered the question in the negative, reaffirming the longstanding rule that a court is divested of jurisdiction upon expiration of the probationary period. None of Seitz’ four consecutive probationary periods had expired prior to the process of revocation having been set in motion.

Seitz further argues that section 948.06, Florida Statutes requires that probation violations must have occurred “within the period of probation” for revocation to be available. Seitz interprets “within the period of probation” to mean within that time period between commencement of an individual consecutive probation period until that individual period’s termination. However, it is settled that the trial court is free to revoke probation at any time for misconduct that demonstrates the probationer’s unfitness for probation as a sentencing alternative. Stafford v. State, 455 So.2d 385, 386 (Fla.1984); see also Cason v. State, 604 So.2d 928, 929 (Fla. 3d DCA 1992); Martin v. State, 243 So.2d 189, 190-91 (Fla. 4th DCA 1971); Williamson v. State, 388 So.2d 1345, 1347-48 (Fla. 3d DCA 1980). Thus it was permissible to revoke the consecutive terms which had not yet commenced.

The order revoking Seitz’ probation is affirmed.

      . Four consecutive terms of probation of 364 days each.

      . A violation of section 784.048, Florida Statutes (2001).

      .The warrant for his arrest was issued on November 25, 2002, shortly before he would have completed the first year of probation.


author: GODERICH, Judge.

text:
    SPLASH ENTERTAINMENT, INC., Appellant, v. SONS OF IRELAND, INC., et al., Appellee.
    No. 3D03-1368.
    District Court of Appeal of Florida, Third District.
    Jan. 14, 2004.

      Ross B. Toyne and Jorge Mayo, Miami, for appellant.
    Fine & Martinez, Jose M. Ferrer and Juan C. Martinez, Miami, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   GODERICH, Judge.

The plaintiff, Splash Entertainment, Inc. [Splash], appeals from an order denying its motion for summary judgment and from an order granting final summary judgment in favor of the defendant, Sons of Ireland, Inc. [Ireland]. We reverse and remand with directions to enter final summary judgment in favor of Splash.

On October 25, 1999, Splash and Ireland entered into an Asset Purchase Agreement for Splash’s interest in a bar. The sale included a liquor license issued by the State of Florida, Department of Business & Professional Regulation, Division of Alcoholic Beverages & Tobacco [DABT]. Ireland delivered to Splash two promissory notes and also entered into a security agreement with Splash granting Splash an interest in the liquor license.

On January 21, 2000, eighty-eight days after the execution of the security agreement, the DABT received Splash’s notice of lien. The DABT, however, did not “file” or “accept” the notice of lien until September 5, 2000, when Splash finally resolved á pending administrative matter with the DABT.

Splash commenced this action to foreclose its interest in the liquor license and other property. The parties settled all disputes except for the liquor license. Both parties filed motions for summary judgment seeking to determine the validity and enforceability of Splash’s lien on the liquor license. The trial court granted Ireland’s motion for summary judgment finding that, pursuant to section 561.65(4), Florida Statutes (2002), the lien was unenforceable because it had not been recorded within 90 days of the date of creation of the lien or security interest. Section 561.65(4) provides, in part:

“In order to perfect a lien or security interest in a spirituous alcoholic beverage license which may be enforceable against the license, the party which holds the lien or security interest, within 90 days of the date of creation of the lien or security interest, shall record the same with the division on or with forms authorized by the division.... All liens and security interests filed on or after July 1, 1995, shall expire 5 years after recordation unless renewed by the lien-holder within 6 months prior to its expiration date.... ”

The trial court denied Splash’s motion for summary judgment and thereafter, entered final judgment in favor of Ireland. Splash’s appeal follows.

Splash contends that the trial court erred by finding that its lien was not enforceable. We agree.

In support of the trial court’s orders, Ireland argues that pursuant to the clear language of section 561.65(4), Florida Statutes (2002), a lien on a liquor license is not enforceable unless it is recorded with the DABT within 90 days of the date of creation of the lien. Ireland contends that although Splash submitted the notice of lien within 90 days, it was not recorded within the 90-day period, and therefore, the lien was not enforceable.

The legislature chose the term “record” instead of the term “file” with respect to when a lien on a liquor license is perfected. However, Chapter 561 does not contain a definition of the word “record.” The two terms have distinct meanings. “Generally, a paper is deemed to be ‘filed’ when it is delivered to the proper official and received by that official to be kept on file.” Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998); see also, Bay County Sheriffs Office v. Tyndall Fed. Credit Union (TFCU), 738 So.2d 456, 458 (Fla. 1st DCA 1999)(holding that sworn notice of lien on truck was not “filed,” and therefore, not perfected, when the Department of Highway Safety and Motor Vehicle returned notice of lien because appropriate fee was not attached). The word “record,” however, connotes more than just a receiving or submitting of documents to the appropriate authority, but also suggests that the document must be assigned some sort of recording number. See Anderson v. North Fla. Prod. Credit Ass’n, 642 So.2d 88 (Fla. 1st DCA 1994)(“an instrument is deemed to be ‘officially recorded’ when the instrument is accepted by the court clerk and is given ‘official register number.’ ”); Dam v. David, 227 So.2d 338, 339 (Fla. 1st DCA 1969)(“A paper is deemed recorded when filed with the clerk and assigned a book and page number.”).

In the instant case, the DABT stamped the notice of lien “RECEIVED” on January 21, 2000, and marked the notice of lien “Accepted” on September 5, 2000. The notice of lien, however, does not contain any type of recording information such as an official register number or a book and page number. As such, it seems that a notice of lien filed pursuant to section 561.65(4) is not recorded, but merely submitted and later accepted or rejected by the DABT. Therefore, we find that pursuant to section 561.65(4), a lien on a liquor license is enforceable if it is received by the DABT within ninety days of the date of creation of the lien, and later accepted by the DABT. The fact that the DABT’s acceptance takes place more than ninety days after the date of creation of the lien is immaterial.

This interpretation is consistent with the manner in which the DABT itself has interpreted section 561.65(4). Pursuant to section 561.65(4), the lien must be recorded utilizing forms approved by the DABT. The form approved by the DABT is titled “Mortgagee’s Interest in Spirituous Alcoholic Beverage License.”- The instructions provided by the DABT for utilizing this form state, in part, as follows:

APPLICATION REQUIREMENTS
Pursuant to Section 561.65, Florida Statutes, a lien may only be recorded against a spirituous (liquor) license. The lien must be submitted to the Division of Alcoholic Beverages and Tobacco within 90 days of the creation of the lien or security interest. When a lien is accepted or rejected, written notification will be sent advising you accordingly. The processing time for lien recordings varies by each application.

http://www.state. fl.us/dbpr/abt/ forms/mortgagees_ interest_in_spirit_ al-cohol_bev_lic_ application_package.pdf (emphasis added).

The instructions provided by the DABT clearly indicate that pursuant to section 561.65(4), the lien must be submitted within 90 days, not that the lien must be accepted within 90 days. Further, the instruction also explains that the processing time varies for each application and that when the lien is accepted or rejected, written notice will be provided. Consistent with these instructions, on September 5, 2000, the DABT gave written notice to Splash that the lien had been “filed effective September 5, 2000.... ” Further, the actual Notice of Lien indicates that it was “Accepted” on September 5, 2000. Neither, the letter sent by the DABT nor the notice of lien itself provides that the notice of lien was “recorded” by the DABT.

Moreover, it is evident from the DABT’s letter dated September 5, 2000, that it considered that the lien had been perfected in a timely manner. Section 561.65(4) also provides that “[a]ll liens and security interests filed on or after July 1, 1995, shall expire 5 years after recordation unless renewed by the lienholder within 6 months prior to its expiration date.... ” The September 5th letter informs Splash that its lien will expire on September 5, 2005 “unless renewed within six (6) months prior to its expiration date or is satisfied,” which is five years from September 5, 2000, the date that the lien was perfected.

Lastly, Ireland’s reliance on In re Seville Entertainment Complex of Pensacola, Inc., 79 B.R. 491 (Bankr.N.D.Fla.1987), is misplaced. In re Seville is factually distinguishable because it deals with a situation in which the lienholder failed to file the approved DABT form with the DABT as required by section 561.65(4).

Accordingly, we find that the lien was enforceable, and reverse and remand with directions to enter final summary judgment in favor of Splash.

Reversed and remanded with directions.

      . A letter from the DABT states, in part: "This will acknowledge receipt of your Notice of Lien in favor of Splash Entertainment, Inc., ... which has been filed effective September 5, 2000.... This lien will expire on September 5, 2005 unless renewed within six (6) months prior to its expiration date or is satisfied....”

      . Pursuant to section 561.65(4), a notice of lien must be recorded with the DABT on forms approved by the DABT. Splash submitted the appropriate fee and approved form titled "Mortgagee’s Interest in Spirituous Alcoholic Beverage License" to the DABT. The form indicates that the DABT "Accepted” the lien on September 5, 2000.

      . Splash also raised several other arguments supporting the enforceability of the lien on the liquor license. However, based on our discussion above, we do not need to address the remaining arguments.


author: SHARP, W., J.

text:
    Stephen J. SCIPIO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2240.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.
    Rehearing Denied March 18, 2004.

      James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, and Larry B. Henderson, Assistant Public Defender, Holly Hill, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Scipio appeals from a final judgment and sentence after a jury convicted him of first degree murder. He was found guilty of shooting twenty-eight year-old Ogard Smith, in the early morning hours of January 21, 2001. The court sentenced Scipio to life imprisonment, without possibility of parole. Scipio raises several points on appeal. However, only one — that the state committed a discovery violation — has any merit. Because there is no reasonable possibility that the discovery violation prejudiced defense, we affirm.

At Scipio’s trial, four witnesses identified him as Smith’s assailant, but there was no physical evidence connecting Scipio to the crime. Smith was shot four times, and two projectiles were recovered from his body. They were possibly fired from the same pistol, most likely a revolver, but the gun was never recovered.

The testimony adduced at trial was that immediately prior to his death, Smith was shooting pool with Miles Garey in the pool room of the Southside Inn, a Daytona Beach nightclub, which is located in a high crime area. ■ Garey testified that he and Smith had been at the Southside Inn only a short while, and that he was bending over shooting pool, when he heard Smith say “Oh, s — t, he’s got a gun.” Garey felt a bullet whiz by his ear and he ran outside the bar.. Garey could not identify the shooter.

When police arrived, Smith was lying in the parking lot and bystanders were trying to help him. Smith was pronounced dead at the scene. Although police questioned potential witnesses at that time, no one claimed to have seen what happened. Scipio was not questioned by police because he was not in the area. However, three people (Harper, White and Gaines) subsequently gave police information about the crime, and testified at Scipio’s trial that they saw him shoot Smith. A fourth witness testified that Scipio admitted shooting Smith to him.

The state’s theory of the case was that Smith’s murder was in retaliation for his testimony against an individual named Robert Allen. Smith had been the victim of a robbery perpetrated by Allen about a year earlier. Allen had been convicted of the robbery and sentenced to fifteen years imprisonment, based in part on Smith’s testimony.

Four days after the shooting, police stopped and questioned Harper. He told police that Scipio shot Smith after he and Gaines had a conversation at the Southside Inn to the effect that Smith should not be there because he had testified against Allen. Harper said that Smith had been previously “jumped on” because of his testimony in the Allen case, and that they didn’t want him at the Southside Inn. Scipio left the bar, saying he would be “right back.” Scipio returned with a gun.

He came into the bar room area, stopped and looked around. Then he walked into the pool room. Harper heard a sound like a firecracker, and a lot of people started running. Smith began crawling out of the bar and Harper saw Scipio following behind Smith, “telling him that he don’t care if he die, f — k him, he got my homeboy 15 years, he shouldn’t have came down here.” Scipio followed Smith all the way outside the bar, shooting at him until bystanders intervened.

The second eyewitness was White. She testified that on the night of the murder, she was at the Southside Inn drinking and dancing. At one point, she heard a loud commotion, and then saw Scipio walk in and heard him in the opposite room make statements like “I oughta burn this f — king n-r dog.” He walked into the room she was in and he continued to make similar statements. White said Scipio was “real hyped up.” She kept her eye on him after that so that if anything happened, she could get out of the way. At some point Scipio left, but she later saw him return. Scipio walked past her, bumping her into the bar and when she turned around, she saw him start to shoot. She panicked, but ran when her cousin grabbed her hand.

The third eye-witness was Gaines who saw Scipio arguing with Allen’s brother, Earl. Earl was trying to keep Scipio from getting a gun. But Scipio left and came back with a gun about twenty minutes later. Gaines saw him walk toward the area where the pool tables were located, and shoot into the pool room. Scipio then shot and kicked the man who was crawling on the ground. Gaines said Scipio shot the man as he crawled outside the bar.

The fourth witness, Hogan, was not at the Southside Inn at the time Smith was shot, but lived nearby. After Smith’s death, Hogan provided information about the shooting to police. At trial, he said that on the evening of the shooting, Scipio came to his home after midnight. Scipio seemed intoxicated and stated that he had just killed a man at the Southside Inn, because the man had testified against his “homeboy.” Hogan also saw the butt of a gun protruding from Scipio’s coat.

Scipio’s defense was that another person had committed the crime. The defense intended to rely, in part, on the testimony of Robert Burch, an investigator for the Medical Examiner’s Office. During Burch’s deposition, defense showed him a photograph of the crime scene outside the Inn, in the parking lot. Based upon this photograph, Burch said there had been a semi-automatic pistol under Smith’s body, and that he had turned it over to law enforcement. Defense believed that this evidence could have created doubt in the mind of the jury as to whether Scipio was the assailant.

Defense counsel met with Burch on the morning of the trial and asked him to review his deposition testimony. Burch did so and said he agreed with it. However, Burch was subsequently approached by the prosecutor and asked about the weapon. Burch told the prosecutor he thought there was a photograph of a weapon.

The prosecutor brought Burch to the State Attorney’s Office to review the photographs. Defense asked to accompany them but the prosecutor refused. The prosecutor produced the crime scene photos. When Burch reviewed them, he decided the FDLE photo showed the object he had believed to be a weapon, was in fact a pager. Burch realized that he had been mistaken in his deposition testimony, but this information was not given to defense prior to the commencement of the trial.

When Burch testified at trial that he had not seen a gun at the scene, but rather he had seen only a pager, the defense- was completely surprised. Defense counsel made a motion for a mistrial based on Burch’s changed testimony, but it was denied. The defense was permitted to impeach Burch, but Burch stuck to his story, explaining that he had made a mistake.

The failure to disclose a significant change in a witness’s testimony is as much a discovery violation as a complete failure to disclose a witness. State v. Evans, 770 So.2d 1174, 1182 (Fla.2000). The state had an obligation to inform the defense, prior to Burch taking the stand, of his changed testimony, pursuant to Florida Rule of Criminal Procedure 3.220(j), which imposes a continuing duty to disclose information counsel obtains after its initial discovery obligation has been met. Whites v. State, 730 So.2d 762 (Fla. 5th DCA 1999).

Instead, the state actively procured the defense witness’s recantation of his earlier deposition testimony, knowing that defense counsel intended to rely on that deposition. The recantation was obtained minutes before the trial and defense counsel was expressly excluded from the state’s interview with the witness. Nor was the defense informed of Burch’s recantation or permitted to question him, prior to the trial. Thus, defense was completely surprised by Burch’s trial testimony.

Based on these facts, we find that the state committed a discovery violation because it failed to advise the defense of the changed testimony prior to the commencement of the trial. See Rule 3.220Q); Whites. The purpose of the discovery rules is to facilitate a truthful fact-finding process, and to prevent surprise by either side. Evans. Non-disclosure of changed testimony is tantamount to the failure to name a witness at all. Evans. The type of “dirty pool” that occurred in this case is exactly the type of conduct the discovery rules were designed to prevent.

Having found that a discovery violation occurred, we must next determine whether the violation was harmful, requiring a reversal. A violation is harmful if the defense is procedurally prejudiced. Pender v. State, 700 So.2d 664, 666 (Fla.1997); State v. Schopp, 653 So.2d 1016 (Fla.1995). The defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Pender; Schopp. Trial preparation or strategy will be materially different if it reasonably could have benefitted the defendant. Id. If the reviewing court finds that there is a reasonable possibility that the discovery violation prejudiced the defense, the error must be considered harmful. Id. Put another way, if the appellate court can say, beyond a reasonable doubt, that defense was not procedurally prejudiced by the discovery violation, then the error is harmless. Id.

As noted in Pender and Schopp, this question turns on whether the discovery error (here failure to inform the defense of the recantation on the day of the trial of a defense witness’ testimony given earlier at deposition), materially hindered Scipio’s trial preparation or strategy. We think it had no such effect. The defense in this case was deprived of possibly being able to establish the existence of an alternative shooter in the parking lot, based on a mistake.

Had the defense known about the witness’ change in his testimony, its trial strategy could only have been one of two things. One, it would not have called the witness. Clearly the outcome of this case would not have been affected given the multiple eyewitness testimonies concerning Scipio’s shooting Smith inside the Inn. Or second, the defense would have called the witness and sought to impeach him, to present the jury with his prior testimony. That is, in effect, what happened in this case, which if anything, was more favorable to Scipio than not having called the witness.

Although we conclude there was no reasonable doubt that the defense was not proeedurally prejudiced by the discovery violating in this case, we warn prosecutors against failing to comply with the Florida Criminal Discovery Rules. They are intended to prevent surprise by either side. In a different case where the evidence is less overwhelming, or a recanting witness more material, we would be compelled to reverse for a new trial.

AFFIRMED.

PETERSON and PLEUS, JJ., concur.


text:
    Hanna MACOOL, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-148.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2004.
    Rehearing Denied March 5, 2004.
    John C. Notari of Sigman, Sigman, No-tari & Sigman, Orlando, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. State v. Nuckolls, 677 So.2d 12 (Fla. 5th DCA), rev. denied, 686 So.2d 582 (Fla.1996).

PETERSON, GRIFFIN and TORPY, JJ., concur.


text:
    James Robert ROBINSON, Appellant, v. CITY OF MIAMI, and Evelio Cobas, Appellees.
    No. 3D02-2560.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Rehearing Denied March 5, 2004.

      Clarke, Silverglate, Campbell, Williams & Montgomery, and Hans Murphy, and Spencer T. Kuvin, Miami, for Appellant.
    Robert S. Glazier, Miami; and Alejandro Vilarello, City Attorney, and Julie 0. Bru, Assistant City Attorney, for Appellees.
    Before COPE, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

James Robert Robinson appeals the entry of an adverse final judgment in his civil rights suit against appellees City of Miami and Evelio Cobas, a City of Miami police officer. We affirm.

This case arises from Officer Cobas’ arrest of Robinson after the officer issued Robinson a citation for jaywalking that Robinson initially refused to sign. The officer had nearly struck Robinson with his police vehicle as Robinson crossed an intersection that contained no pedestrian crossing signals.

Robinson argues that the officer did not have reasonable suspicion to stop him, and thus the officer improperly issued the citation and Robinson could lawfully resist his arrest without violence. Without reaching all of the issues Robinson presents, we conclude that Robinson’s refusal to accept and sign the citation gave the officer probable cause to arrest him.

Section 318.14(2), Florida Statutes (1997), required Robinson to “sign and accept a citation indicating a promise to appear.” Further, Robinson’s refusal to accept and sign the citation constituted a criminal offense under section 318.14(3), Florida Statutes (1997).

We therefore affirm.


text:
    Bobby CULVERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4740.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2004.
    Rehearing Denied March 9, 2004.
    Robert Augustus Harper and Michael Robert Ufferman of Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Barbara J. Yates, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Bradford v. State, 722 So.2d 858 (Fla. 1st DCA 1998).

WOLF, C.J., ERVIN and PADOVANO, JJ., Concur.


text:
    Shawn Q. WHIPPLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3997.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   ORDER

PER CURIAM.

On September 11, 2003, the appellant filed a notice of appeal seeking review of an Order on “Motion for Post Conviction Relief,” which had been entered and served on the appellant by mail on June 3, 2003. Because this notice was not filed within 30 days of the order on appeal, we issued an order to show cause why this appeal should not be dismissed as untimely. The appellant filed a response along with a copy of his motion for rehearing, filed on June 23, 2003, which was denied on August 25, 2003.

Having considered the appellant’s response, the show cause order is hereby discharged. See Fla. R.App. P. 9.020(h). A motion for rehearing directed at an order on a 3.850 motion for post-conviction relief must be filed within 15 days of the date of service of the order. See Fla. R.Crim. P. 3.850(g). However, when the order is served by mail, Rule 3.070 provides that three days shall be added to this time period. See King v. State, 504 So.2d 405 (Fla. 1st DCA 1987). In this case, the appellant had 18 days from the June 3, 2003 service date to file a motion for rehearing. The end of this period fell on Saturday, June 21, 2003. Therefore, the appellant had until Monday, June 23, 2003 to file his motion for rehearing. See Fla. R.Crim. P. 3.040. As the motion was filed on June 23, 2003, it was timely and delayed rendition of the order on appeal until the motion was disposed of on August 25, 2003. Thus, the notice of appeal filed on September 11, 2003, was also timely and effective to vest jurisdiction in this Court.

On December 15, 2003, the appellant filed a Petition for Writ of Habeas Corpus for a Belated Appeal. However, because this appeal was timely filed, the petition for belated appeal is denied as moot. Accordingly, this appeal shall proceed from the Order on “Motion for Post Conviction Relief,” filed on June 3, 2003. ■

ALLEN, DAVIS and HAWKES, JJ., concur.


author: SHAHOOD, J.

text:
    SMITH ARCHITECTURAL GROUP, INC., Appellant, v. Christel DEHAAN, Appellee.
    No. 4D03-1146.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.

      Jacqueline S. Miller of Chopin & Miller, West Palm Beach, for appellant.
    John R. Hamilton and Anthony D. Conti of Foley & Lardner, Orlando, for appellee.
   SHAHOOD, J.

This is an appeal by Smith Architectural Group, Inc. (the Smith Group), from the Final Order of Dismissal of its complaint against appellee, Christel Dehaan (De-haan) for lack of personal jurisdiction. We hold that the trial court erred in dismissing appellant’s complaint.

Dehaan is a resident of Indianapolis, Indiana, and lives and works in Indianapolis. In August 2001, she was in the process of building a personal residence in Indianapolis and directed her construction consultant to contact several architects. The consultant contacted the Smith Group, located in Palm Beach County, Florida, after reading a feature about the firm in a national magazine. Jeffrey Smith (Smith), a representative of the Smith Group, expressed an interest in the project and met with Dehaan and her consultant in Indiana to discuss it. On his return to Palm Beach County, Smith prepared an agreement for architectural services and mailed it to De-haan in Indiana, where she executed it and mailed it back to Palm Beach County. No meetings were ever held in Palm Beach County.

When Dehaan refused to pay for the architectural services, the Smith Group commenced an action in the Circuit Court of Palm Beach County, Florida, against her seeking to recover payment of monies due for the professional services. De-haan’s motion to dismiss for lack of personal jurisdiction was granted by the trial court.

Prior to the hearing on the motion to dismiss, Smith’s affidavit was submitted on behalf of the Smith Group. He stated that his business is located in Palm Beach, Florida, and the architects are licensed in Florida. Most of their work is done on “high end” residential properties in Palm Beach, although a handful of their contracts are for out-of-state projects. The firm does not advertise inside or outside of Florida, but has been honored by the publication of photographs of a number of its projects in national magazines. The firm has no website and only a yellow pages listing. Smith pointed out that his firm was solicited by Dehaan’s consultant with phone calls, faxes and letters to Palm Beach County. According to Smith, there were “innumerable telephone conversations” relating to the Dehaan project from his office in Palm Beach. The design work for the project was done at their offices in Palm Beach, but was presented to the client in person in Indianapolis.

In determining whether a Florida court has personal jurisdiction over a nonresident, two inquiries must be made. See Northwestern Aircraft Capital Corp. v. Stewart, 842 So.2d 190 (Fla. 5th DCA 2003). The court must first consider whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes (2002), i.e., whether defendant performed any of the acts delineated in the statute. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). If such facts are alleged, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements of the United States Constitution. Id. “Factors that go into determining whether sufficient minimum contacts exist include the foreseeability that the defendant’s conduct will result in suit in the forum state and the defendant’s purposeful availment of the forum’s privileges and protections.” Taskey v. Burtis, 785 So.2d 557, 559 (Fla. 4th DCA 2001).

“Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state” is one of the enumerated acts which will subject a person to jurisdiction in Florida. See § 48.193(l)(g). Appellants argue that the trial court has jurisdiction because the contract for architectural services was performed in this state and payment was to be received in this state. See generally Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 676 (Fla. 5th DCA 1987) (where a contract does not state the place where payment is due, the legal presumption is that a debt is to be paid at the creditor’s place of business). Further, appellants maintain that due process requirements have been met because it was Dehaan who, through an agent, solicited the firm in Florida; therefore, she could reasonably expect to defend an action on the contract in this state.

It is sufficient for purposes of the first prong of the test that the contract between the parties in this case was made with a Florida resident and payment was to be made in this state. See Stomar, Inc. v. Lucky Seven Riverboat Co., 821 So.2d 1183 (Fla. 4th DCA 2002) (allegation that owner of vessel breached agreement with Florida ship broker by failing to pay commission owed to broker in Florida sufficient to satisfy first prong of jurisdictional inquiry); see also Tallmadge v. Mortgage Fin. Group, Inc., 625 So.2d 1313 (Fla. 4th DCA 1993) (requirements of long-arm statute met where Florida mortgage broker obtained refinancing of a mortgage on a California property and closing was held in California, but commission agreement as well as all loan documents, correspondence, and checks were sent to broker’s Florida office); Poe v. Marine Group of Palm Beach, Inc., 760 So.2d 273, 274 (Fla. 4th DCA 2000) (Florida long-arm statute requirements met where Maryland residents gave Florida corporation exclusive right to sell yacht located in Maryland in exchange for commission and contract required some action by both parties in Florida). Although such activities do not necessarily satisfy the second prong of the inquiry, see, e.g., Venetian Salami, 554 So.2d at 501, 503 (explaining that a nonresident’s contract with a Florida resident alone, or the mere failure to pay money in Florida, cannot automatically establish sufficient minimum contacts to warrant the exercise of long-arm jurisdiction), the additional fact that a substantial portion of the contract is to be performed in Florida, or substantial services are to be rendered in Florida, does satisfy the minimum contacts requirement. See Stomar, 821 So.2d at 1185-86 (due process requirements met where, in addition to execution of contract with Florida resident and failure to make payment in Florida, the brokerage agreement required broker to perform substantial services in Florida on behalf of the vessel owner in marketing and negotiating the sale of the vessel); see also Hartcourt Cos. v. Hogue, 817 So.2d 1067, 1071 (Fla. 5th DCA 2002) (“where a nonresident defendant enters a contract through its agent in Florida, for services to be performed in Florida, the defendant purposely avails itself of the privilege of conducting activities in Florida, thus invoking the benefits and protections of its law”).

In this case, the complaint alleged sufficient jurisdictional activity to bring this action within Florida’s long-arm statute. Dehaan contracted with a Florida company and agreed to make payment to the company in Florida. In addition, the second prong of the analysis is satisfied by the fact that the services to be performed by the Smith Group under the parties’ contract were to be, and were, performed in Florida. Finally, it is also important that it was Dehaan, through her agent, who initially contacted the Smith Group in Florida and solicited their participation in the building project. See Venetian Salami, 554 So.2d at 503.

We, accordingly, reverse the final order of dismissal and remand for further proceedings.

REVERSED AND REMANDED.

STEVENSON, J., and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    Daniel John GUERRIER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-5016.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.
    Rehearing Denied Feb. 26, 2004.
    Daniel John Guerrier, Bristol, pro se.
    No response required for respondent.
   PER CURIAM.

The petitioner, Daniel John Guerrier, filed the instant petition for writ of habeas corpus, claiming two grounds of ineffective assistance of counsel. We deny, without comment, the petitioner’s first ground, which claimed he received an illegal sentence exceeding the statutory maximum. We deny, without prejudice, the petitioner’s second ground, which claimed an incorrect sentencing scoresheet calculation, in order for the petitioner to raise this claim, if desired, in a proper rule 3.800 motion to correct illegal sentence. See Fla. R.Crim. P. 3.800.

STONE, STEVENSON and MAY, JJ., concur.


text:
    Beverly H. CONBOY a/k/a Keats, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1067.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm, but remand for the limited purpose of conforming the order of revocation of probation to the oral findings made at the end of the trial. See generally Boyles v. State, 608 So.2d 552 (Fla. 4th DCA 1992).

The trial court’s oral findings reflect that there was insufficient proof regarding the violation of probation based on the July 11, 2002, DUI charge. However, the order of revocation of probation includes the DUI charge as one of the established violations. This is in direct conflict with the oral findings on the record.

REMANDED.

SHAHOOD, HAZOURI and MAY, JJ., concur.


text:
    Radi MARTI, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-235.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.
    Rehearing Denied March 2, 2004.
    Radi Marti, Century, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Radi Marti appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. The motion advanced seven claims of error. We affirm, without discussion, the denial of claim two and claims four through seven. However, we reverse the trial court’s denial of claims one and three and remand for the attachment of record excerpts conclusively showing appellant is not entitled to relief on these claims. If no such record excerpts exist, appellant is entitled to an evidentiary hearing.

STONE, WARNER and HAZOURI, JJ., concur.


text:
    J.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4064.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the final order imposing judgment of delinquency and sentence. The issues raised by J.C. in this appeal were not preserved by objection or argument at the hearing before the trial court.

STONE, WARNER and STEVENSON, JJ., concur.


text:
    Kenneth Allen VINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3880.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.
    Kenneth Allen Vinson, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hemandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We again certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

FARMER, C.J., WARNER and TAYLOR, JJ., concur.


text:
    STATE of Florida, Appellant, v. M.M., a child, Appellee.
    No. 4D02-2706.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The state appeals from the dismissal of the petition for delinquency it filed against appellee, M.M., on charges of petit theft. The trial court dismissed the petition after a hearing on whether the speedy trial period had expired. We reverse.

Appellee was arrested on March 2, 2002, and the state filed the petition for delinquency on April 23, 2002. The ninety-day speedy trial period ran on May 31, 2002. Appellee was arraigned and appointed counsel on June 19, 2002. On June 20, 2002, appellee’s counsel filed a Motion to Dismiss/Discharge on which a hearing was held the same day. The trial court granted the motion without making findings of fact and conclusions of law.

The state argues that the trial court erred in dismissing the petition and not giving them the ten-day recapture period provided for in Florida Rule of Juvenile Procedure 8.090(m)(3). Until recently, decisions interpreting the juvenile speedy trial rule have made the determination of this issue unclear. See State v. V.M., 842 So.2d 1066 (Fla. 4th DCA 2003); State v. D.L., 841 So.2d 663 (Fla. 4th DCA 2003); D.D. v. State, 817 So.2d 930 (Fla. 4th DCA 2002).

This court has recently decided C.D. v. State, 865 So.2d 605 (Fla. 4th DCA 2004)(en banc), in which we recede from those cases and follow the rule as it provides. It holds:

When a juvenile is taken into custody, the State is given ninety-days to bring the case to trial. When that does not occur, the juvenile may file a motion for discharge. The court must then set a hearing within five days to review the factors in subsection (d). If none of them apply, the State is given a ten-day window period within which to try the case. If the State fails to bring the ease to trial within those ten days, the juvenile is discharged. If one of the factors in subsection (d) is found to exist, then the State is given ninety days within which to try the case.

Id.

The trial court in this case erred in dismissing the charge against appellee without giving the state the ten-day window period within which to try the case against appellee. We reverse the order of dismissal and remand for further proceedings.

REVERSED and REMANDED.

GUNTHER, TAYLOR and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    Elias ROSADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1450.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant sought to withdraw his plea after he was sentenced to concurrent five-year prison terms for grand theft and dealing in stolen property. Appellant challenges the trial court’s denial of the motion claiming that adjudication and sentencing for both grand theft and dealing in stolen property violates double jeopardy and constitutes fundamental error. We affirm, concluding that appellant’s plea amounted to a plea bargain, and any double jeopardy claim was therefore waived.

Appellant was charged with burglary of a dwelling, dealing in stolen property, and grand theft. The events resulting in the charges involved appellant breaking into a house, stealing a gold chain, and then pawning it. At the sentencing hearing for a prior crime, the state noticed appellant that it would seek habitualization for the instant crimes. The judge entered into the discussions and promised that he would not habitualize appellant if he were to plea open to the court, but the judge would not be inclined to go below five years as a sentence, even though appellant was requesting an eighteen month sentence. Appellant then agreed to an open plea to the court, and the judge sentenced him to concurrent five year sentences.

After sentencing, appellant timely moved to withdraw his plea, claiming that it was entered under duress. However, at the hearing, no such proof was offered. On appeal, appellant claims for the first time that his conviction and sentence for both grand theft and dealing in stolen property violates double jeopardy, and that this issue can be raised for the first time on appeal.

While appellant relies on Hall v. State, 826 So.2d 268, 271 (Fla.2002), for the proposition that conviction of both grand theft and dealing in stolen property violates double jeopardy, Hall is based upon a construction of section 812.025, Florida Statutes (1999), which precludes conviction for both grand theft and dealing in stolen property if they flow from one scheme. Nevertheless, if it were a fundamental error, even fundamental errors such as double jeopardy may be waived when the dual conviction arises from a negotiated plea agreement. See Novaton v. State, 634 So.2d 607, 609 (Fla.1994). In the present case, we conclude that the plea was the result of a negotiation with the judge in which the judge agreed not to habitualize appellant if he were to plead open to the court. Thus, just as in Novaton, appellant avoided a greater prison term through ha-bitualization by agreeing to plead open to the court. He obtained what he bargained for and cannot now be heard to complain of the deal he made.

Affirmed.

GROSS and HAZOURI, JJ., concur.


text:
    George MAY, Appellant, v. ALLAPATTAH PROPERTIES PARTNERSHIP, a Florida General Partnership, Martin County, and South Florida Water Management District, jointly and severally, Appellees.
    No. 4D03-3611.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.
    Rehearing Denied March 4, 2004.
    George May, Palm Beach Gardens, pro se.
    Richard V. Neill of Neill Griffin Fowler Tierney Neill & Marquis, Fort Pierce, for appellee Allapattah Properties Partnership.
   PER CURIAM.

We affirm the final summary judgment entered in favor of appellees. Appellant sued appellees for specific performance of a real estate contract, and fraud in the inducement of the same contract. The contract attached was not signed by appel-lees, nor was the seller identified. Appel-lee Allapattah Properties Partnership moved for summary judgment pursuant to section 725.01, Florida Statutes (2003), and attached an affidavit of its general partner swearing that he refused to deal with appellant and never signed a contract to sell him the subject real estate. While appellant filed a response seeming to allege that a real estate agent signed the contract on behalf of Allapattah Properties Partnership by way of an additional letter, the motion was not sworn, and no affidavits were filed. In any event, the letter to which appellant points as part of the contract cannot be considered a signed document agreeing to sell the property. The trial court granted summary judgment and considered the lawsuit frivolous, assessing attorney’s fees. We agree.

Affirmed.

WARNER, POLEN and TAYLOR, JJ., concur.


author: MAY, J.

text:
    Jane DOE, individually and as next friend of her disabled foster child, James Doe, Appellant, v. Jerry REGIER, Secretary of the Florida Department of Children and Family Services, and the Florida Department of Children and Family Services, a department of the State of Florida, Appellees.
    No. 4D03-2794.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.
    Rehearing Denied March 2, 2004.
    Alan I. Mishael, P.A., Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jason Vail, Assistant Attorney General, Tallahassee, for appellees.
   MAY, J.

A foster parent appeals a trial court order that dismissed two of seven counts against the Department of Children and Families (DCF) and Secretary Regier. While not raised by the DCF or the Secretary, we have reviewed the order on appeal to determine whether it is a final appealable order. We find that it is not and therefore dismiss the appeal without prejudice.

The trial court’s order stated that “[t]o the extent that any of the claims set forth by the plaintiffs are not precluded by sovereign immunity, this order is without prejudice.” Sovereign immunity applied to only two claims against the DCF and Secretary Regier that alleged violations of the Americans with Disabilities Act and the Rehabilitation Act. Thus, five counts are capable of being amended. The plaintiffs actually filed a motion for leave to amend, which is currently pending in the trial court. The plaintiffs suggest that the trial court’s denial of their motion for rehearing acted to “finalize” the order as to the remaining five counts. We disagree.

“An appeal from an order dismissing a count of a complaint, where other counts against the same parties remain, is authorized only when the dismissed count arises from a separate and distinct transaction independent of the other pending, pleaded claims.” Biasetti v. Palm Beach Blood Bank, 654 So.2d 237, 238 (Fla. 4th DCA 1995) (citing Mendez v. West Flagler Family Ass% Inc., 303 So.2d 1, 5 (Fla.1974)). In this case, the foster parent seeks to compel the DCF to provide certain bathing facilities for a foster child, and to prevent DCF from retaliating against the foster parents by removing the foster child from the home. There can be no doubt that the counts in this complaint arise out of the same incident even though they involve “separate and severable legal theories.” Id.

We therefore dismiss the appeal without prejudice to seek review of all issues upon entry of a final order as to all counts.

KLEIN, J., and HOROWITZ, ALFRED J., Associate Judge, concur.


text:
    Hector ROSA, Appellant, v. Jack FLEISCHMAN, Esquire, Appellee.
    No. 4D03-1844.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.
    Hector Rosa, Sanderson, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. Donahue v. Vaughn, 721 So.2d 356 (Fla. 5th DCA 1998) (a writ of mandamus not available against a private attorney who had no public duty to supply his former client with documents).

KLEIN, SHAHOOD and TAYLOR, JJ., concur.


author: KLEIN, J.

text:
    Mary Ann WALLY, Petitioner, v. NATIONAL CITY MORTGAGE CO., Lucille Zeoli and Antonio Morales, Respondents.
    No. 4D03-4762.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.
    Rehearing Denied March 15, 2004.
    Robert B. Roemer, Palm Beach Gardens, for petitioner.
    Donna S. Glick of the Law Offices of David J. Stern, P.A., Plantation, for respondent National City Mortgage Company.
   KLEIN, J.

Petitioner’s mortgage is in foreclosure. The bank records custodian and vice-president filed an affidavit reflecting that the mortgage was in default and the amount owed. Petitioner noticed the deposition of this witness in Florida, but the witness responded with a motion for protective order stating that she resides in Ohio and is employed by the lender in Ohio. The trial court granted the motion for protective order without explanation.

Petitioner has cited no authority which would support certiorari review of this order, which is not surprising since this court does not review by certiorari orders refusing to allow discovery. Barrett v. Callaway, 842 So.2d 1056 (Fla. 4th DCA 2003). Although this order is contrary to the well-established rule that the officer of a plaintiff corporation is required to attend a deposition in the forum where the action is pending, Ormond Beach First National Bank v. J.M. Montgomery Roofing Co., 189 So.2d 239 (Fla. 1st DCA 1966), such an error can be corrected on appeal from final judgment. Accordingly, the no adequate remedy on appeal requirement for certio-rari, Allstate Insurance Co. v. Langston, 655 So.2d 91 (Fla.1995), does not exist here.

The petition is dismissed for lack of jurisdiction.

GUNTHER and STEVENSON, JJ., concur.

      . Given the nature of this case, it may be that the deposition could be accomplished by telephone; however, that would either require the plaintiff to agree to it by stipulation, rule 1.300(c), or the court to order it under rule 1.310(b)(7).


text:
    Flemming LARSEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3964.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 2004.
    Flemming Larsen, Sanderson, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s right to refile a rule 3.800(a) motion raising his claim of entitlement to credit for time served, affirmatively stating where in the court file or jail records the information concerning his jail service can be found. Appellant may attach such supporting information to his motion. Phillips v. State, 798 So.2d 796 (Fla. 4th DCA 2001); Acquaotta v. State, 791 So.2d 1251 (Fla. 4th DCA 2001).

' GUNTHER, SHAHOOD and TAYLOR, JJ., concur.


author: RAMIREZ, J.

text:
    Nancy SCHOFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 3D03-2068.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Rehearing and/or Certification of Conflict Denied March 5, 2004.
    Hersch & Talisman, P.A., and Richard Hersch, Miami, for petitioner.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for respondent.
    Before COPE, GERSTEN, and RAMIREZ, JJ.
   RAMIREZ, J.

Nancy Schofield petitions this court for a writ of certiorari to review a circuit court order finding that Schofield’s breathalyzer test results were admissible at trial. We deny the petition because the circuit court did not depart from the essential requirements of law.

Appellee State of Florida charged Scho-field with driving under the influence of alcoholic beverages, in violation of section 316.193, Florida Statutes (2000). She later contested the reliability of the breath test results obtained during her arrest and moved to strike the breath test result affidavit. She argued that the breath tests did not comply with the applicable administrative rules because the arresting officer failed to ask her whether she had a dental plate and to request that she remove any such device. The county court suppressed the breath test results and found that the results did not have sufficient reliability to be accepted as evidence at trial. The circuit court, sitting in its appellate capacity, reversed the county court order.

Because Schofield does not allege any procedural due process rights violation, we limit our review to whether the circuit court departed from the essential requirements of law when it reversed the county court’s order that suppressed Schofield’s breathalyzer test results and conclude that the circuit court did not depart from the essential requirements of the law. See Haines City Community Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995)(standard of review is whether the court afforded procedural due process and whether the circuit court applied the correct law, which is synonymous with observing the essential requirements of the law).

Two lay witnesses and three expert witnesses testified before the county court. Deputy Donald R. McAUaster of the Monroe County Sheriffs Department, the arresting officer, testified that he first obtained a breath sample from Schofield after the expiration of the twenty minutes observation period that Florida Administrative Code Rule llD-8.007(3) requires, and the sample produced a breath test card that stated “Invalid Sample — Mouth Alcohol.” He then asked Schofield to rinse her mouth with water and conducted two additional breath tests which resulted .114 and .111, respectively.

Florida Department of Law Enforcement Inspector Officer Lawrence Sanger and chemist Laura Barfield testified. Sanger testified that alcohol can be trapped in dentures and false teeth, but he did not know how the invalid reading resulted in this case and what effect water in the mouth would have on the result. He believed the mouth alcohol reading was unreliable, but that the breath tests were reliable. Barfield testified that the tests performed were valid because there were two samples taken within fifteen minutes of each other and produced readings within .02 of each other.

Rick Swope, Schofield’s expert and a police officer with the Broward County Sheriffs Office, testified that the invalid mouth alcohol reading was due to the presence of alcohol in the mouth and that the dentures probably caused the alcohol presence. He stated that the studies he read and personally conducted indicated that alcohol can remain in the mouth in excess of the twenty minutes observation period that Florida regulations require. He opined that the failure to remove the dental appliances and then rinse the mouth with water rendered the subsequent test results unreliable.

We cannot agree with Schofield that the circuit court departed from the essential requirements of law in this case and that this results in a miscarriage of justice. We first turn to the affidavit received into evidence. Section 316.1934(5), Florida Statutes (2000), provides that an affidavit is “admissible without further authentication.” The affidavit further constitutes “presumptive proof of the results of an authorized test.” Id. If the affidavit indicates that the breath alcohol test level is 0.08 or higher, the “presumptive proof of the results” gives rise to the rebuttable presumption of impairment as set forth in section 316.1934(2). Statutes must be given their plain and ordinary meaning when their language is clear and unambiguous. See Metropolitan Dade County v. Milton, 707 So.2d 913, 915 (Fla. 3d DCA 1998). When employed in a statute, words of common usage should be interpreted in a plain and ordinary sense. Id.

First, the affidavit is proper both in form and content. Schofield does not contest that the affidavit contains all of the requisite information required in section 316.1934, Florida Statutes.

Second, the officer who performed the alcohol tests on Schofield was qualified to do so. The Florida Department of Law Enforcement had certified him to conduct the tests he performed and allowed him to use the precise equipment he used to administer the tests.

Third, the officer that performed the alcohol tests on Schofield complied with the governing statutory law and administrative rules in his administration of the alcohol tests. Florida law does not require the removal of dental devices nor does the law impose an obligation on the officer to inquire about the use of dentures prior to or during the administration of alcohol tests.

Although the officer did not know that Schofield had an orthodontic plate in her mouth, Schofield’s use of the device during the administration of the breath test does not necessarily render the test results invalid. The prevailing view from numerous jurisdictions that have addressed the effect of dental devices on the results of breath alcohol tests admit the test results as evidence despite the presence of dentures during the administration of the tests provided that the tests were conducted, as here, according to the governing statute and administrative rules. See People v. Witt, 258 Ill.App.3d 124, 196 IlLDec. 459, 630 N.E.2d 156, 158 (1994)(re-versing the trial court that suppressed the alcohol breath test where proper test procedures were followed); Farr v. Director of Revenue State of Mo., 914 S.W.2d 38 (Mo.App.l996)(reversing trial court order that excluded breathalyzer test results because of the presence of dentures when proper test procedures were followed). Nonetheless, evidence of the use of dentures during a breath alcohol test go to the weight accorded the test result, not the admissibility of the test result, the latter of which lies fully within the discretion of the court. See State v. Allen, 74 Or.App. 275, 702 P.2d 1118 (1985).

Petition denied.

      . Section 316.1934(5), Florida Statutes (2000), allows the admission of breath test results by affidavit. It states in pertinent part:
      (5) An affidavit containing the results of any test of a person’s blood or breath to determine its alcohol content, as authorized by s. 316.1932 or s. 316.1933, is admissible in evidence under the exception to the hearsay rule in s. 90.803(8) for public records and reports. Such affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath if the affidavit discloses:
      (a) The type of test administered and the procedures followed;
      (b) The time of the collection of the blood or breath sample analyzed;
      (c) The numerical results of the test indicating the alcohol content of the blood or breath;
      (d) The type and status of any permit issued by the Department of Law Enforcement which was held by the person who performed the test; and
      (e)If the test was administered by means of a breath testing instrument, the date of performance of the most recent required maintenance on such instrument.
      The Department of Law Enforcement shall provide a form for the affidavit. Admissibility of the affidavit does not abrogate the right of the person tested to subpoena the person who administered the test for examination as an adverse witness at a civil or criminal trial or other proceeding.


text:
    Tivan JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3012.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Rehearing Denied March 5, 2004.
    Tivan Johnson, in proper person.
    Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Affirmed. Fla. R.Crim. P. 3.850(b); Colon v. State, 730 So.2d 780, 781-82 (Fla. 3d DCA 1999).


text:
    Karen E. RICHMOND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2677.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Rehearing Denied March 5, 2004.
    Karen Richmond, in proper person.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Karen E. Richmond appeals an order denying her motion to correct illegal sentence in which she claims, among other things, errors in calculation of the sentencing guidelines scoresheet or scoresheets used at the time she entered her plea. As we interpret the plea colloquy, the agreement was that the defendant would enter a plea to multiple offenses in three circuit court cases with the court being allowed to impose any sentence up to the legal maximum. As the sentence actually imposed, sixty-three months followed by ten years probation, is well within the legal maximum, correction of the scoresheets (assuming for purposes of discussion that there is any error) would serve no useful purpose. The sentence imposed is a legal one. See Quarterman v. State, 527 So.2d 1380 (Fla.1988); Dunenas v. Moore, 762 So.2d 1007 (Fla. 3d DCA 2000).

The defendant also claims that two offenses to which she entered pleas are barred by double jeopardy. See Novaton v. State, 634 So.2d 607 (Fla.1994). It is not clear from the face of the record that there is such a double jeopardy problem, but in any event, the elimination of the two claimed duplicative offenses would not make a practical difference in the sentence and thus we decline to entertain the defendant’s argument on this point. See State v. McBride, 848 So.2d 287, 292 (Fla.2003); Robinson v. State, 373 So.2d 898, 903 (Fla.1979).

Affirmed.


text:
    FISHER ISLAND HOLDINGS, L.L.C., Appellant, v. Dr. Irwin POTASH, in his capacity as one of a majority of Equity Member Directors of Fisher Island Club, Inc., and on behalf of the Equity Members of Fisher Island Club, Inc., and Fisher Island Club, Inc., a Florida not-for-profit corporation, Appellees.
    No. 3D03-3334.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Greenberg Traurig, P.A., and Alan T. Dimond, Elliot H. Scherker, and Elliot B. Kula, Miami; Phillips, Eisinger & Brown, Hollywood, for appellant.
    Aragon, Burlington, Weil, Schwiep, Kap-lan & Blonsky, P.A., and Robert K. Burlington, Daniel F. Blonsky, and Alejandro F. Hoyos, Miami, for appellees.
    Before SCHWARTZ, C.J., and COPE, J., and BARKDULL, THOMAS H., JR., Senior Judge.
   PER CURIAM.

We reverse an order of the trial court staying and abating an arbitration instituted by Fisher Island Holdings, L.L.C. (“Holdings”), a non-party to the litigation pending between the appellees. No jurisdiction over Holdings was obtained by judicial process, and Holdings did not voluntarily appear in the pending litigation by seeking any affirmative relief. Therefore, it was inappropriate to enter the order under review. See ATM Ltd. v. Caporicci Footwear Ltd., Corp., 867 So.2d 413, 2003 WL 22900630 (Fla. 3d DCA December 10, 2003); Norville v. BellSouth Advertising & Pub. Corp., 664 So.2d 16 (Fla. 3d DCA 1995); Moretto v. Staub, 370 So.2d 1220 (Fla. 3d DCA 1979).

This matter is returned to the trial court, which may consider appropriate proceedings to formally bring Holdings within the pending litigation as an interested party.

Reversed and remanded with directions.