author: POLEN, J.

text:
    Vivian Ann SWANSON, Appellant, v. Donald E. SWANSON, Appellee.
    No. 4D03-1178.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Christopher C. Cloney of Cloney & Clo-ney, P.A., Fort Lauderdale, for appellant.
    Michele Cummings and Robyn Vines of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellee.
   POLEN, J.

The former Wife, Vivian Ann Swanson, appeals the equitable distribution provisions of the trial court’s post-judgment order. In equitably dividing the marital property, the trial court ordered that each spouse receive 45% of the value of the other spouse’s pension fund at its value as of January 17, 1990, the date of the final judgment of dissolution of marriage. Though we find no error with the trial court’s initial distribution, we disagree with how the 45% of the respective pension funds were calculated.- For the following reasons, we reverse the order of the trial court and remand with instructions to enter an amended order in accordance with this opinion.

On July 1, 1998, the former Husband became a participant in a Deferred Retirement Option Program (DROP), in which his pension benefits accrued interest and cost of living adjustments during participation. However, the Husband continued to work and receive salary until January 2003, when he received a lump sum payment equivalent to fifty-five months of retirement benefits. The former Wife sought a valuation of the former Husband’s pension by moving for a Qualified Domestic Relations Order (QDRO). The former Wife’s motion was amended to request a lump sum award of her share of the accrued DROP benefits. The former Husband, in response, sought a valuation of the Wife’s pension as well.

As of September 2002, both spouses were vested. A hearing was held to calculate each spouse’s 45% share of the other’s pension. It was determined that the former Husband’s pension fund in 1990 was worth $16,594 annually ($1,392 per month) if he attains full retirement or $10,440 annually ($870 per month) if he retires early. The trial court applied the early retirement calculation when valuing the former Husband’s pension and determined the value to be $840.59 per month; however, when valuing the former Wife’s pension at its 1990 value, the trial court assigned an annual value of $3,728.88 ($310.74 per month). This value was based upon the full retirement scale, because in 1990 the former Wife’s pension had not yet vested. Therefore, had she retired early or otherwise been terminated, she would have lost her entitlement to those benefits.

Having determined the respective value of each pension, the trial court ordered that the former Husband’s share (45% of $310.74, or $139.83) be deducted from the former Wife’s share (45% of $840.59, or $378.27), resulting in a net benefit of $238.44 each month for the former Wife. The trial court ordered the offset to be applied immediately and retroactively to the former Husband’s fifty-five months of accumulated benefits despite the fact that the former Wife was, and presently is still, not retired and thus not entitled to her pension benefits yet. This resulted in the former Wife being entitled to a lump sum payment of $13,090. However, the trial court also found that the Husband was taxed on the lump sum payment, and therefore imputed a tax rate of 15%, with the former Husband’s consent, to the former Wife’s portion, which amounted to $1,964. Ultimately, the former Wife received a lump sum payment of $11,126. Thereafter, the trial court ordered that the Wife receive $238.44 monthly commencing February 2003.

First, the trial court erred in calculating the Husband’s pension value based upon an early retirement penalty. Florida law prohibits acknowledgment of an early retirement penalty when calculating the value of pension benefits. See Paris v. Paris, 707 So.2d 889, 890 (Fla. 5th DCA 1998)(“the Florida Supreme Court made it clear that the valuation of pension benefits must be made excluding any penalty for early retirement.”), disagreed with on other grounds by Acker v. Acker, 821 So.2d 1088, 1091 (Fla. 3d DCA 2002). In adopting the reasoning of Trant v. Trant, 545 So.2d 428 (Fla. 2d DCA 1989), the Supreme Court said

[b]y valuing [a] retirement plan without [an early retirement] penalty, the valuation recognizes that both parties are entitled to share in the benefits that have accrued during the marriage but which cannot be presently received without penalty. Both parties also get the benefit of the growth of that value simply because the payments are not received beginning at the time of dissolution.

Boyett v. Boyett, 703 So.2d 451, 453 (Fla.1997).

At bar, the trial court was presented with documented evidence indicating that the former Husband’s pension fund in 1990 was calculated to pay a normal annual benefit of $16,594, or to pay an early annual benefit of $10,440. The early annual benefit was calculated by multiplying by an early retirement factor of 0.62917. The former Husband argues, to no avail, that there was no reference to an early retirement penalty. Nevertheless, the $10,440 yearly figure is derived by applying an early retirement penalty. As such, the trial court erred by not valuing the pension benefits at their normal retirement value, excluding any penalty for early retirement.

Next, we take issue with the trial court’s immediate offset of the former Wife’s benefits with that of the former Husband’s. The trial court acknowledged the two approved of methods for distributing pension benefits, namely “immediate offset” and “deferred distribution,” and ordered that “[e]ach party shall receive 45% of the value of the other’s pension at its value as of January 17, 1990.” Hence, the method of distribution chosen by the trial court was deferred distribution. However, at the hearing to determine the value of each spouse’s pension, the trial court determined the respective values and then ordered an immediate offset of all benefits both retroactively and prospectively. This was ordered notwithstanding the fact that the former Wife was not retired and thus not yet receiving any pension benefits.

When a spouse is awarded a percentage of the other spouse’s pension under the deferred distribution method, the entitlement occurs “after retirement.” Trant, 545 So.2d at 429. Accordingly, the former Husband was not entitled to an offset for his share of the former Wife’s pension benefits, which the former Wife was not currently receiving. Likewise, no such credit was, nor should have been, given to the former Wife while her 45% share of the former Husband’s pension benefits were accumulating in the DROP program. We do not find the former Husband’s risk of forfeiture argument to be meritorious or in alignment with the expressed goal of Trant. Therefore, we find it was error to award the former Husband an immediate and retroactive offset.

Finally, we turn to the trial court’s failure to award the former Wife interest and cost of living adjustments for accrued benefits in the former Husband’s DROP account. Contrary to the former Husband’s argument, we find that the former Wife adequately pled, and did not withdraw, her claim to entitlement to said relief. Furthermore, as is obvious, 45% of the value of the former Husband’s pension benefits as of January 17, 1990 belongs to the former Wife. Therefore, the interest and cost of living adjustments which were applied to the former Wife’s share, despite being in the former Husband’s DROP account, should also belong to the former Wife. Moreover, the former Wife sufficiently established that the DROP account received a 3% cost-of-living adjustment on the first day of each July, and it accrued tax deferred interest “at an effective annual rate of 6.5 percent compounded monthly, on the prior month’s accumulated ending balance, up to the month of termination or death.” § 121.091(13)(e), Fla. Stat. Therefore, we hold the trial court erred by not awarding the former Wife interest and cost of living adjustments which accrued in the former Husband’s DROP account.

Consequently, we reverse the order of the trial court and remand with instructions to enter an order with the following adjustments: (1) the former Husband’s pension value should reflect its full value, excluding the early retirement penalty, (2) the fifty-five-month lump sum benefit and all benefits thereafter should be recalculated to account for the erroneous premature offset, while permitting for a proper offset to be applied at the point in time when the former Wife began (or will begin) receiving her own pension benefits, and (3) the former Wife’s benefits should be recalculated to include the cost-of-living adjustments and the accrued tax deferred interest. We find no error in the imputation of taxes upon the former Wife’s lump sum benefit. The trial court’s findings and previous order shall remain the same in all other respects. If the trial court determines the need to take additional testimony or entertain further argument of counsel to assist in making these adjustments, it may exercise its discretion to do so.

REVERSED and REMANDED.

KLEIN and HAZOURI, JJ., concur.

      . There is a minor discrepancy with this figure which has been acknowledged but not explained in the record. Our calculations reveal an early retirement benefit of $10,087.08.

      . Under the immediate offset method, the Wife would receive the present value of her interest in the Husband’s pension either in cash or as an offset in the husband's share of marital property, thus requiring complicated calculations and most likely expert testimony. See Trant, 545 So.2d at 429.

      . Under the deferred distribution method, "the court determines what the employee's benefit would be if he retired on the date of the final hearing without any early retirement penalty. The court then multiplies this dollar amount by the percentage to which the other spouse is entitled. This method yields a fixed dollar amount which the awarded spouse receives from each of the employee’s pension payments after retirement.” Trant, 545 So.2d at 429.

      ."Although [the deferred distribution method] prolongs contact between the parties and raises the possibility of enforcement problems, this approach equally distributes the risk of forfeiture between the parties.” Trant, 545 So.2d at 429.


source: Caselaw Access Project

author: MAY, J.

license: Public Domain

text:
    Barbara JOSEPH and Peggy Ann Aronowitz, Appellants, v. Lena CHANIN, Appellee.
    No. 4D03-2009.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.

      Jay L. Kauffman, of Herb & Mednick, P.A., Boca Raton, for appellants.
    H. Michael Muniz, of Sachs, Sax & Klein, Boca Raton, for appellee.
   MAY, J.

Personal jurisdiction, or lack thereof, is the focus of this appeal. The defendants, Barbara Joseph and Peggy Ann Aronow-itz, appeal the trial court’s order denying their motion to dismiss count three (conversion) for lack of personal jurisdiction. The plaintiff, Lena Chanin, cross-appeals that part of the trial court’s order granting the motion to dismiss for lack of personal jurisdiction as to counts one and two (unjust enrichment and fraudulent conveyances). We affirm in all respects.

The plaintiff lived with the defendants’ father for nine years. He passed away in November 2001. She filed a verified complaint alleging counts for unjust enrichment and fraudulent conveyances. The complaint alleged that during their relationship, she had given the defendants’ father money to deposit in a joint account for living expenses, and that he wrongfully deposited the money into a savings account, safe deposit box, and two certificates of deposit for the benefit of the defendants. Neither defendant is a resident of the State of Florida; however, they both traveled to Florida to close the savings account and safe deposit box, and cash the CDs after their father’s death.

The trial court held a hearing on the defendants’ motion to dismiss for lack of personal jurisdiction and entered an order dismissing the verified complaint without prejudice. The plaintiff filed an amended verified complaint. This complaint alleged three counts: (1) unjust enrichment, (2) fraudulent conveyances, and (3) conversion. The defendants once again moved to dismiss for lack of personal jurisdiction. This time, the trial court granted the motion as to counts one and two (unjust enrichment and fraudulent conveyances), but denied the motion as to count three (conversion).

Florida has established a two-prong test for determining jurisdiction over the person. Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). The court must first determine whether the plaintiff alleged sufficient facts to comply with Florida’s long-arm statute, section 48.193, Florida Statutes (2001). Next, the court must determine if the defendant had sufficient minimum contacts with the State of Florida to satisfy due process.

The plaintiff alleged personal jurisdiction over the defendants as to counts one and two on the basis that they were “[ojperating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.” § 48.193(1)(a), Fla. Stat. (2001). The plaintiff argues that closing the savings account and safe deposit box and cashing the CDs constitute “carrying on a business or business venture.” Relying on Silver v. Levinson, 648 So.2d 240 (Fla. 4th DCA 1994), the plaintiff suggests that if an isolated transaction by a nonresident can be sufficient to comply with due process, surely four transactions must satisfy due process. We disagree.

It is not necessarily the number of transactions, but rather the nature and extent of the transaction(s) that determines whether a person is “carrying on a business or business venture” within the state. Id. Here, while the defendants executed four transactions, they were not of a nature or extensive enough to constitute the “carrying on a business or business venture.” The trial court correctly found the plaintiffs allegations inadequate to establish personal jurisdiction over the defendants as to counts one and two.

The trial court denied the motion to dismiss as it related to count three for conversion. In that count, the plaintiff alleged the defendants committed a tor-tious act in Florida by converting funds to which the plaintiff had a right of possession. These allegations satisfy the elements necessary to state a cause of action for conversion, defined as an act of dominion wrongfully asserted over another’s property inconsistent with ownership. Warshall v. Price, 629 So.2d 903 (Fla. 4th DCA 1993).

In Silver, this court held that if the allegations are sufficient to establish that a tort was committed in Florida, they are also sufficient to establish personal jurisdiction over the person. Because the issue of personal jurisdiction was decided on a motion to dismiss, the trial court was restricted to the four corners of the pleadings. Bell v. Indian River Mem’l Hosp., 778 So.2d 1030 (Fla. 4th DCA 2001). The trial court correctly found that the plaintiffs amended verified complaint established personal jurisdiction for conversion.

AFFIRMED.

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

      . We recognize that the trial court subsequently found the same amended verified complaint failed to state a cause of action for conversion and dismissed the complaint without prejudice. Not only is that order a non-final, non-appealable order, but it now conflicts with this court's holding. See D’Asaro v. Fla. Dep’t. of Envtl. Prot., 846 So.2d 636 (Fla.2003).


author: SHAHOOD, J.

text:
    Susanne RESCIGNO, Appellant, v. Stephen ANNINO, Appellee.
    No. 4D03-652.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Susanne Rescigno, South Palm Beach, pro se.
    Craig A. Boudreau, West Palm Beach, for appellee.
   SHAHOOD, J.

Former wife (mother), Susanne Rescig-no, appeals from an Order on former husband’s (father), Stephen Annino, pro se motion for contempt requiring the parties’ severely allergic and asthmatic children to undergo a six-month regimen of allergy shots for allergies to cats in order to resume visitation at their father’s residence where eight cats and one dog reside. We hold that the trial court abused its discretion and disregarded the best interests and welfare of the children.

The parties had three children born from the marriage, ages six, four, and twenty-three months at the time of the dissolution in December 2001. The parties’ settlement agreement, incorporated into the final judgment, provided that former wife was the primary residential custodian and that the parties had shared parental responsibility. The agreement provided that overnight visitation would start for the two oldest children, both boys, in six months and in two years for the youngest child, a girl. At the time the mother entered into the agreement, she was unaware that the father, newly remarried, was living at a residence with eight cats to which her sons are severely allergic. The two older boys were diagnosed with severe allergies to cats before the parties separated and both boys suffer from asthma, which has, in the past, required hospitalizations for both boys. The older boy had been diagnosed at age one and had been hospitalized seven times; the younger boy had been hospitalized twice with asthma attacks.

With knowledge of his sons’ medical conditions and without informing the mother about the cats, the father took the boys to his residence causing them to suffer allergic reactions. Because the father would not refrain from exposing the boys to the cats, the mother refused overnight visitation. As a result, the father filed a motion for contempt.

It is undisputed that the mother has not withheld visitation from the father, but merely insisted that he not take the children to his home.

At the time of the hearing on the motion, the two children were not taking allergy shots. The mother testified that shots would require the children to go once a week for the first two years and then for several years thereafter with no guarantee that their asthma would be controlled.

The children’s pediatrician testified through deposition that both boys have allergic rhinitis and asthma and were evaluated by a pediatric allergist who determined that they had severe allergies to cats. The pediatrician recommended that the children not be exposed to the cats. He further opined that prophylactic measures taken by the father, i.e., washing the floors, putting air Alters in the house, would not be sufficient to overcome the problem, and that a stringent cleaning would be necessary for all rugs and walls. He thought, however, that such a stringent cleaning regimen would be impractical where the children would be visiting every other weekend. The pediatrician stated that it was preferable to avoid the situation entirely, rather than give allergy injections, especially when shots did not always work and sometimes made the situation worse.

A pediatric allergist testified through deposition that both boys have an acute sensitivity to cats, asthma, hyperactive airways which causes difficulty breathing and allergic rhinitis. Because their severe allergies have required hospitalizations for both boys, he recommended that they avoid exposure to cats. He stated that removing the cats from the house during visitation would not be sufficient because it is the cat dander which is the real allergen. Immunotherapy is a recommended alternative where the pets cannot be kept out of the house. The allergist stated that shots required at least two to three years of treatment, and perhaps even three to five years, in order for the children to build up a tolerance to the dander. During that time, the children should avoid the cats and have symptomatic medication on hand in the event they are exposed. The allergist stated that with children with asthma, a three to five year regimen of shots was recommended because the asthma is a progressive inflammatory disease.

Notwithstanding this testimony, the trial court entered an order on the motion for contempt holding that the father was responsible for taking the children for allergy shots and for payment of the same. During the six months that the children were undergoing allergy shots, there would be no visitation at the father’s residence; however, the father would continue to have visitation away from his residence. At the end of six months of shots, overnight visitations would commence.

The mother moved for rehearing claiming that the allergist testified that a minimum regimen of allergy treatments was two years, not six months, and that during that time, the children were to avoid exposure to the cats. Further, she claimed that both the pediatrician and the pediatric allergist testified that the preferred treatment was for the children not to be exposed to the cats at all. The court' denied the motion.

The trial court abused its discretion in ordering the children to commence a weekly regimen of allergy shots for severe allergies to cats for six months and to thereafter resume overnight visitation in a house in which eight cats reside. Although the trial court was trying to fashion an outcome which satisfied all parties, this result, although favorable to the father, was not in the best interests of the children. The undisputed evidence demonstrated that the boys were severely allergic to cats and had asthma which had required several hospitalizations in the past. To continue to expose the children to cat dander with no guarantee that the problem would be resolved is contrary to the best interests and welfare of the children. A result more appropriate to protect the welfare of the children would be the permanent removal of the cats from the home. This option would enable overnight visitations to commence immediately provided the stringent cleaning recommended by the experts takes place first.

The option is, therefore, up to the father. If he wants overnight visitation with his children at his residence, he must permanently remove the cats from the home and stringently clean the house of any remaining dander.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WARNER and POLEN, JJ., concur.


author: FULMER, Judge.

text:
    Michael J. FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1500.
    District Court of Appeal of Florida, Second District.
    April 7, 2004.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Michael J. Foster appeals from a conviction for leaving the scene of a crash with injury. We reverse and remand for a new trial because the trial court erred in allowing impeachment testimony regarding a collateral issue, whether Foster’s brakes were functioning at the time of the accident.

Foster was involved in an automobile accident at 4 a.m. on October 5, 2002, when the car that he was driving went through a stop sign and hit another car driven by Sandra Sotomayor. Foster left the scene of the accident on foot, leaving behind two passengers in his car. Officer Patrick Bock arrived at the scene and spoke to the two passengers and Sotomayor. Officer Bock also searched for Foster in the area around the accident scene. Officer Bock then left a card at Foster’s house, which was five or six blocks away from the accident scene.

Later that morning, Foster attempted to contact the officer and left a message for him. Officer Bock met with and interviewed Foster. Foster claimed that he had been hit on the head during the accident, he was dazed when he ran from his car, and he tripped and passed out in a ditch a short distance from the accident scene. Later, he walked home, saw the card left on his door by the officer, and fell asleep on the floor. When he awoke again at 9 a.m., he called and left a message for the officer.

During the interview, Foster also told Officer Bock that the reason he was unable to stop at the intersection was that the brakes on his vehicle had failed. To follow up on this information, Officer Bock asked Officer Cale Stevens, an experienced automobile mechanic, to go to the wrecking yard where Foster’s vehicle was located and try to ascertain whether the brakes were functional.

At the start of the trial, Foster moved in limine to prohibit the State from eliciting testimony from Officer Stevens concerning his testing and examination of Foster’s brakes and Officer Stevens’ opinion that the brakes were functional. The State argued that the evidence was relevant to impeach Foster’s credibility. The trial court allowed Officer Stevens’ testimony based on the rationale that the evidence went to Foster’s credibility. As a result of this ruling, Officer Stevens testified at length about his determination that the brakes were operable.

We conclude that reversal is required on this issue because Officer Stevens’ testimony was offered to impeach Foster’s credibility on a collateral issue: whether or not the brakes were a cause of the accident. Generally, impeachment on a collateral issue is impermissible. See Daeda v. State, 841 So.2d 632, 635 (Fla. 2d DCA 2003). The test for determining whether a matter is collateral or irrelevant “‘is whether the proposed testimony can be admitted for any purpose independent of the contradictions.’ ” Lawson v. State, 651 So.2d 713, 715 (Fla. 2d DCA 1995) (quoting Dupont v. State, 556 So.2d 457, 458 (Fla. 4th DCA 1990)). “Two types of evidence pass this test: (1) facts relevant to a particular issue; and (2) facts which discredit a witness by pointing out the witness’ [sic] bias, corruption, or lack of competency.” Lawson, 651 So.2d at 715 (citing Gelabert v. State, 407 So.2d 1007, 1009-1010 (Fla. 5th DCA 1981)).

The effect of the collateral impeachment testimony was to give the impression that Foster’s poor driving rather than defective brakes caused the accident. However, the cause of the accident was not relevant to the crime charged, and the testimony impeaching Foster as to the cause of the accident could have swayed the jury to find Foster guilty for an improper reason.

Due to our reversal, we need not reach Foster’s other issue concerning improper closing arguments made by the prosecutor.

Reversed and remanded for a new trial.

WHATLEY and NORTHCUTT, JJ., concur.

      . § 316.027(l)(a), Fla. Stat. (2002).

      . Although it is not argued by Foster, we also note that the trial judge participated in the questioning of Officer Stevens to such an extent that it would have served to highlight this testimony as being of particular importance.


author: DAVIS, Judge.

text:
    B.J., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4605.
    District Court of Appeal of Florida, Second District.
    April 7, 2004.

      James Marion Moorman, Public Defender, Bartow, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

B.J. challenges the circuit court order withholding adjudication but finding that she committed the delinquent act of battery on a person over sixty-five. The charge stems from an incident in which B.J. struck Blanche Jennings in the face.

On appeal, B.J.’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising the following as possible arguable issues: (1) the sufficiency of the evidence, (2) the lawfulness of the disposition, and (3) the propriety of the trial court extensively questioning one of the State’s witnesses. After independently reviewing the record and applicable law, we ordered both the State and B.J.’s counsel to file supplemental briefs on the issue of the trial court questioning the witness. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Having received these supplemental briefs, we conclude that the trial court erred, and we reverse.

At trial, after defense counsel finished cross-examining B.J.’s cousin, who witnessed the incident and was one of only two witnesses presented by the State, the following exchange took place:

THE COURT: Ma’am, you say that [B.J.] hit her aunt, but the question is, did she intentionally strike her aunt or did she hit her when she was flailing, flailing her arms? Do you know the difference between an intentional touch or a strike—
WITNESS: I know the difference between the two. [B.J.] is very aggressive. She’s very manipulative. She’s very dogmatic. And I think personally, she did it purposefully to prove that I am in control and I’m not going to give the control that you want.
THE COURT: What facts do you have to support your opinion that she intentionally struck her aunt as opposed to came in contact with her aunt’s face with her hands.
WITNESS: Because she was in my kitchen washing dishes, and I asked [B.J.] to wash the dishes and her aunt was in my Florida room getting the item out of the bookbag. She left the kitchen, went into the Florida room to get the bag from her aunt.... She was very adamant that she did not want me to see that progress report. And I think she would have went to any extreme to prove that if I don’t want her to see it, she’s not going to.
THE COURT: What direction was [B.J.] looking when her hand came in contact with—
WITNESS: She was looking at her, at her grandmother.
THE COURT: At her grandmother?
WITNESS: Yes, she was.
THE COURT: And in what motion did her hand take?
WITNESS: Directly at her grandmother. They were facing each other.
THE COURT: Face-to-face?
WITNESS: They were facing each other.

At this point, defense counsel objected that the State was required to ask such questions. After overruling the defense objection, the trial court asked the witness to demonstrate what happened using one of the attorneys. Prior to this exchange, the State, upon its own questioning of Walker and Jennings, had only elicited testimony that B.J. struck Jennings during a struggle, or “tussle,” over B.J.’s bookbag. The State, however, had not established B.J.’s intent, a necessary element of battery. See § 784.03, Fla. Stat. (2001).

In pronouncing B.J. guilty of the delinquent act, the trial court stated, “[Bjasically, I decided the case based on the questions I asked that you’ve preserved that [sic] for appeal.” Furthermore, at sentencing four weeks later, the trial court stated:

I remember this case because it was the one that, I guess, I found you guilty in large part based on the questions I asked, and your lawyer is convinced but for my intervention, you probably would have been found not guilty because the assistant state attorney was under the belief that a battery requirement was a (inaudible) act as opposed to an intentional act. I apologize to you, counsel for doing the State Attorney’s job. I really hate to do that, but I did it.

Although a trial court may ask a witness questions to clear up uncertainties, it must not depart from a position of neutrality. J.F. v. State, 718 So.2d 251 (Fla. 4th DCA 1998). Additionally,

[a] trial judge “should never assume the role of prosecuting attorney and lend the weight of his great influence to the side of the government.” Hunter v. United States, 5 Cir., 1932, 62 F.2d 217, 220. In our system of administering justice the functions of the trial judge and the prosecuting attorney are separate and distinct; they must not be confused.

Id. at 252 (quoting Herman v. United States, 289 F.2d 362, 365 (5th Cir.1961)); see also Asbnry v. State, 765 So.2d 965, 966 (Fla. 4th DCA 2000) (“[T]rial court departed from the appearance of neutrality and became an active participant by prompting the State to present evidence and by sua sponte recalling witnesses and asking them questions.”).

Here, the trial court admittedly questioned a State witness on an element of the offense that the State did not prove. But for the answers elicited by the trial court, there would not have been sufficient evidence to establish intent. Accordingly, we reverse.

Reversed.

NORTHCUTT and COVINGTON, JJ., concur.

      . It appears from the record that Jennings is B.J.’s great-grandmother, although at times she is referred to as her aunt and her grandmother.


author: STONE, J.

text:
    James SHEFFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-111.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Carey Haughwout, Public Defender, and Susan D. Cline, 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.
   STONE, J.

We affirm Sheffield’s conviction on charges of delivering and possessing cocaine.

It was not an abuse of discretion to deny Sheffield’s motion for mistrial where the state’s witness, on cross-examination, characterized the location where Sheffield was arrested as a high drug area. The delivery consisted of a sale to an undercover detective, in a Wendy’s parking lot, using marked money.

On cross-examination of the arresting detective, defense counsel inquired about the specifics of the transaction where a co-perpetrator pretended to be talking on a pay telephone while she and the detective waited for Sheffield to arrive with the drugs. Defense counsel inquired:

Q: Is she faking like she’s talking on the phone?
A: She might have done that, because if the police officer saw her, she could give her reason to be standing right there. It wouldn’t look suspicious in any way.
Q: Just you two standing alone by the phone just hanging out, as oppose [sic] to her making a phone call and calling somebody?
A: Correct. The area is known for a lot of drug activities.

Defense counsel immediately objected and moved for mistrial, arguing that the detective’s last response was unreasonable and not responsive. The state conceded that the answer was unresponsive and asked for a curative instruction. The trial court denied the motion for mistrial and gave a curative instruction.

Whether identifying the location as a high crime area is unduly prejudicial must be evaluated on a case-by-case basis. See Gillian v. State, 573 So.2d 810, 812 (Fla.1991).

In Davis v. State, 562 So.2d 443, 444 (Fla. 2d DCA 1990), an officer/witness commented on the reputation of the neighborhood, referring to it as a “drug supermarket.” The court, nevertheless, affirmed the conviction, noting that the statement was isolated and that the prosecutor did not mention the character of the neighborhood or the officer’s testimony at any other time during the course of the trial. Therefore, since the officer’s comment was not a focus of the proceeding, it did not deprive the defendant of a fair trial. Id.

We have considered Wheeler v. State, 690 So.2d 1369 (Fla. 4th DCA 1997), Sherrod v. State, 582 So.2d 814 (Fla. 4th DCA 1991), and Beneby v. State, 354 So.2d 98 (Fla. 4th DCA 1978), but deem each distinguishable. In Wheeler, the trial court overruled the defendant’s objection to testimony including a lengthy description of the reputation of the location of the arrest and a statement that the detective “had personally bought crack cocaine from the area ... 44 times” so he “knew about where it would be.” Wheeler, 690 So.2d at 1370. Further, the prosecutor in that case referred to the detective’s statements regarding the “known drug area” several times during closing arguments. Id. at 1371. In Sherrod, a witness made a number of improper comments. Sherrod, 582 So.2d at 814. There, the witness stated that the defendant was arrested in a high crime area, that officers “hit this area quite often,” and that the location was a “bad area for drugs.” Id. at 815. Further, during closing arguments, the prosecutor referred to the testimony of the officer and the criminal reputation of the neighborhood. Id. In Beneby, a testifying officer stated that he had chosen to work in the area where the defendant was arrested because “there had been several narcotic arrests made in the area” and that the location had a “reputation for narcotics.... ” Beneby, 354 So.2d at 99. There, during closing arguments, the prosecutor stated that the area was “known to be inhabited by drug users.” Id. In Beneby, despite the testimony and the closing remarks, the court declined to give a curative instruction to the jury. Id.

In each of these cases, not only were the comments more egregious than the isolated one made here, but there were other distinguishing factors, such as reinforcement of prejudice during closing arguments, or the failure of the trial court to sustain the objection or give a curative instruction.

This case is more analogous to Davis. Here, the officer made only a single and isolated comment regarding the character of the neighborhood where Sheffield was arrested. Thereafter, the trial court sustained an objection and a curative instructive ensued. Additionally, the prosecutor never repeated or referred to the officer’s statement during the trial. Further, while other illegal activities may have taken place in the Wendy’s parking lot, Wendy’s is a restaurant frequented by innocent patrons. We also note that Sheffield admitted possessing other drugs he attempted to conceal and the evidence of Sheffield’s guilt was overwhelming. See Huffman v. State, 500 So.2d 349, 350 (Fla. 4th DCA 1987).

We conclude that the witness statement was not unduly prejudicial and any error is harmless. See Goodwin v. State, 751 So.2d 537 (Fla.1999).

Therefore, the conviction and sentence are affirmed.

GROSS and HAZOURI, JJ., concur.


author: SAWAYA, C.J.

text:
    Zarek L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2845.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    Joerg F. Jaeger of Jaeger & Blankner, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, C.J.

Zarek L. Williams appeals the judgment and sentences entered in accordance with a jury verdict finding him guilty of trafficking in 400 grams or more of cocaine, possession of a firearm in the commission of a felony, carrying a concealed firearm, and possession of drug paraphernalia. Williams argues that because the charges stem from an unreasonably prolonged traffic stop, the trial court erred in denying his motions to suppress. Specifically, Williams raises two issues that have merit: 1) the initial stop exceeded the time necessary to write the citation; and 2) Williams was illegally detained after he was issued the citation. We agree and reverse.

While on routine patrol, the arresting officer stopped Williams at 7:38 p.m. for a window tint violation and an obscured tag. A minute-and-a-half later, the officer requested back-up. Four minutes after the stop, the officer requested a drug dog, which arrived at 8:13 p.m. Ten minutes after the stop, the officer ran Williams’ date of birth through the teletype and immediately received a response that no warrants were outstanding for Williams. Thirty-five minutes after the stop, the officer issued Williams a citation for the window tint violation. The record reveals that the citation the officer issued to Williams had been partially filled out before the stop even took place. After Williams was handed the citation and his driver’s license, he was asked to step to the median so the drug dog could sweep the car. The dog alerted and Williams was arrested.

Williams claims that he was detained far longer than necessary for the officer to issue the citation and, therefore, the search of his vehicle via the drug dog was improper. Williams notes that there is no evidence that the officer had any basis for suspecting criminal activity when he stopped Williams or when issuing the citation to him. Therefore, Williams claims the trial court erred in denying his motion to suppress. We agree. An individual who is stopped for the commission of a traffic infraction may be subjected to a canine search of the exterior of the vehicle so long as it is done within the time required to issue a citation. Eldridge v. State, 817 So.2d 884 (Fla. 5th DCA 2002); Maxwell v. State, 785 So.2d 1277 (Fla. 5th DCA 2001) (citing Cresswell v. State, 564 So.2d 480 (Fla.1990)); Welch v. State, 741 So.2d 1268 (Fla. 5th DCA 1999), In Eldridge, we further explained that the time to issue a citation “should last no longer than is necessary to write the citation and, when necessary, to make the license, tag, insurance and registration checks as long as that information can be obtained within a reasonable period of time.” 817 So.2d at 887 (citations omitted).

In the instant case, it took thirty-five minutes for the officer to obtain the necessary information and write the citation. We conclude, based on the facts and circumstances of this case, that this time far exceeded that which was necessary to issue the citation to Williams. Because Williams was illegally detained at the time the canine search began, the search was improper, and the drugs, paraphernalia and firearm were illegally seized and therefore inadmissible in evidence. El-dridge; Maxwell. Hence, the trial court erred in denying the motion to suppress.

Moreover, we cannot ignore the fact that the officer actually had completed the citation and handed it to Williams before the drug dog performed the search of the vehicle. Even if it was reasonable to take thirty-five minutes to obtain the necessary information and issue the citation, the stop had ended before Williams was directed to step to the median, citation in hand, so the dog could proceed with the search. Because the stop had ended before the drug search by the dog began and because the officer had no basis for suspecting criminal activity, the continued detention of Williams was illegal. Accordingly, we reverse the order denying the motion to suppress and remand with directions to discharge Williams.

REVERSED AND REMANDED.

ORFINGER and MONACO, JJ., concur.

      . The officer admitted that when he approached the car, he could clearly see the temporary tag. Williams, therefore, argues that reversal is warranted based on State v. Diaz, 850 So.2d 435 (Fla.), cert. denied, - U.S. -, 124 S.Ct. 936, 157 L.Ed.2d 745 (2003), which clarified the law relative to what a law enforcement officer may do after stopping a vehicle for an apparent temporary tag violation. In Diaz, the officer stopped the vehicle because he could not read the temporary tag. As he approached the vehicle after it was stopped, he could clearly read the tag and found nothing improper. Because the officer did not have any other reason to stop or detain the driver, the court held that the deputy could do no more than explain the reason for the stop to the driver and that any further detention or interrogation of the driver was improper. Williams’ reliance on Diaz is misplaced because the record clearly establishes that the officer also stopped Williams for the window tint violation.

      . The officer testified at the suppression hearing that he is a "slow writer” and in order to expedite the process of issuing citations, he fills in portions of a number of citations ahead of time. Specifically, he fills in the year, the county, the city and signs the citations. The "county traffic court” information was pre-stamped on the citation. The only information that the officer had to fill out at the time of the stop was the information obtained from Williams' driver’s license and the VIN from the car. The officer testified that filling out this information on the citation took thirty-five minutes.


author: PER CURIAM.

text:
    Kenya Laron PROCTOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-907.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    Kenya Laron Proctor, Raiford, pro se.
    No appearance for Appellee.
   PER CURIAM.

In early March 1995, defendant Kenya Laron Proctor (while with two of his friends, Mark Russell and Jedediah McGlocking) robbed and shot in the face an acquaintance of his friends. Proctor was convicted of Attempted First-Degree Premeditated Murder, Robbery with a Firearm, and Kidnaping. Proctor filed a direct appeal and argued that the trial court erred in “refusing to allow the mental health experts to testify for the defense.” This court per curiam affirmed. Proctor v. State, 689 So.2d 1086 (Fla. 5th DCA 1997).

Depending upon how one counts, Proctor is now appearing here for the 9th or 10th time in his nine-year-old case. In this current appeal No. 5D03-907, as he did in our No. 5D03-917, he contends his sentence was improperly calculated and illegal. Since this court per curiam affirmed in No. 03-917, this court hereby affirms in this case, No. 5D-907, as well. The court below was right. Defendant’s motion is successive and without merit.

As our Clerk can attest, Proctor has been “filing documents faster than this court can dispose of them,” Rooney v. State, 699 So.2d 1027, 1028 (Fla. 5th DCA 1997). Because of that and because we found his arguments and numerous filings to be without merit, we issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999) (court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond). In response, Proctor again wrongly asserts that his sentence is illegal.

We do not take the action of barring a defendant from further pro se pleadings lightly. However, “Enough is enough.” Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995). Finding no merit in Proctor’s numerous filings, we must hold that his successive challenges to his judgments and sentence constitute an abuse of the judicial system. See, e.g., Baker v. State, — So.2d -, 2004 WL 439879 (Fla. Mar.11, 2004) (limit on successive claims is necessary to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system-of justice).

This abuse of the judicial system is affecting the federal system too. For example, in United States v. Robinson, 251 F.3d 594 (7th Cir.2001), the federal court remarked:

[Defendant] is an incessant repetitive filer of frivolous motions attacking his conviction and sentence. In the original appeal, though he' was represented by counsel, he filed five motions for leave to file a supplemental pro se brief, and we remarked, in the course of upholding his conviction, the tardy and repetitive character of these motions.
* :|: * *
[Hjaving to file, read, and return a frivolous motion is almost as great a burden on the court’s staff as the preparation of a ruling. There is no legal objection to the imposition of sanctions for frivolous filings in a criminal case, United States v. Cooper, 170 F.3d 691, 692 (7th Cir.1999); see also In re Becraft, 885 F.2d 547, 550 (9th Cir.1989) (per curiam), though such imposition is rare. Not having warned Robinson that he was risking sanctions by filing his repetitive motions, we shall not impose them now; but let this opinion be a warning to him (and others similarly situated) that he will be courting sanctions, monetary and otherwise (see Alexander [v. United States, 121 F.3d 312 (7th Cir.1997) ]), if he continues in his current course of frivolous motion practice.

(emphasis added). See also United States v. Moussaoui, No. 01-455-A (E.D.Va. Nov. 5, 2003) (court has broad discretion regarding its “inherent power to impose order, respect, decorum, silence and compliance with lawful mandates.”). The burden on our staff from such “frequent filers” is also great. This court’s post-conviction caseload has increased by 90% in the last 10 years without any accompanying increase in the central staff.

Therefore, in accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve our strained judicial resources, we prohibit Proctor from filing any additional pro se appeals, pleadings, motions and petitions relating to his convictions and sentence in the underlying case. Any further pleadings filed in this court relating to his convictions and sentence must be reviewed and signed by an attorney, licensed to practice law in this state. The clerk of the court of the Fifth District Court of Appeal is directed not to accept any further pro se filings or pleadings from Kenya Laron Proctor regarding St. Johns County, 7th Judicial Circuit Court No. CF95-343.

AFFIRMED.

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


author: MONACO, J.

text:
    STATE of Florida, Appellant, v. Earl MARSHALL, Appellee.
    No. 5D03-1258.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
   MONACO, J.

The State of Florida appeals the sentence meted out to the appellee, Earl Marshall, after Mr. Marshall violated his probation. Because the trial court used an erroneous scoresheet and awarded a downward departure without valid written or transcribed reasons for doing so, we remand for resentencing.

In accordance with a plea agreement, Mr. Marshall pled nolo contendere to two of three drug offenses, in exchange for an agreed concurrent sentence of 51 weeks in county jail, with credit for time served, plus one year of probation, which included a special condition requiring completion of a residential drug treatment program. The sentence was a small downward departure, founded on the uncoerced negotiated plea agreement. See State v. Williams, 667 So.2d 191 (Fla.1996). After serving the inearcerative portion of the sentence, Mr. Marshall absconded from supervision. He was eventually taken into custody, and admitted the violation of probation. In making the admission, however, he was apparently unaware that the State would seek to correct the scoresheet upon which he was originally sentenced.

At sentencing for the violation of probation, the State pointed out to the trial court that a number of prior convictions had not been scored on Mr. Marshall’s Criminal Punishment Code scoresheet that had been submitted at the time of his original sentencing. The revised score-sheet, with the additional points from the violation of probation, reflected a lowest permissible sentence of 17.925 months in state prison. The defense argued for 13.05 months, based on the original incorrect scoresheet. The trial judge, who expressed concern because Mr. Marshall was induced to plead initially by use of an incorrect scoresheet, sentenced Mr. Marshall to serve 51 weeks and 48 days in state prison (he had been in custody for 48 days on the violation of probation), with credit for time served. The State appeals. We reverse.

The issue presented was answered by the Florida Supreme Court in Roberts v. State, 644 So.2d 81 (Fla.1994). There, the court held that in resentencing a defendant after a revocation of probation, a court has the authority to correct a sentencing guideline scoresheet to include prior convictions that were mistakenly omitted from the original scoresheet, even though the error was made through no fault of defendant. See also Scherwitz v. State, 618 So.2d 793 (Fla. 5th DCA 1993), approved, 644 So.2d 85 (Fla.1994).

The defendant in Roberts was the beneficiary of a mistake in his original guidelines scoresheet, just as Mr. Marshall is here. The Florida Supreme Court concluded that since the defendant had committed a new crime and, thus, violated his probation, they saw no reason to perpetuate the error. “Justice is not served by awarding a defendant something to which he is not entitled.” Citing with approval the Third District’s opinion in Roberts v. State, 611 So.2d 58 (Fla. 3d DCA 1992), the Florida Supreme Court said further:

The defendant cites to Graham v. State, 559 So.2d 343 (Fla. 4th DCA 1990) for the proposition that a trial court is without power to consider a new scoresheet, over objection, containing prior convictions completely omitted from the original. The contention then is that the defendant be sentenced under a score-sheet that is simply not based upon the truth. Consequently, we do not agree with Graham because to follow it literally, the defendant receives the benefit of being sentenced under a scoresheet which mistakenly omits prior convictions. Neither the rules nor the substantive law requires a defendant receiving the largesse of a judicial error. Since only one guideline scoresheet may be used for each defendant covering all offenses pending before the court at sentencing, Fla. R.Crim. Proc. 3.701(d)(1); accord Lambert v. State, 545 So.2d 838, 841 (Fla.1989), following the defendant’s argument permits him to escape the punishment meted out by the law. Furthermore, since the defendant’s violation of probation triggered the resen-tencing, the defendant is not being sentenced for “precisely the same conduct” .... [Cites omitted].

Roberts, 644 So.2d at 82. See also Aponte v. State, 810 So.2d 1008 (Fla. 4th DCA 2002); Atkins v. State, 787 So.2d 57 (Fla. 2d DCA 2001); Hernandez v. State, 776 So.2d 356 (Fla. 3d DCA 2001).

In the present case the trial court awarded Mr. Marshall a downward departure sentence after the violation of probation without giving valid reasons for doing so. See § 921.00265(2), Fla. Stat. (2000). The statutory reasons for a downward departure are specified in section 921.0026, Florida Statutes (2000). No written reasons for the departure were filed, and the transcript of the proceedings indicates that the trial court did not list any appropriate reasons in downwardly departing in Mr. Marshall’s case.

We conclude, therefore, that Mr. Marshall should be given an opportunity to withdraw his admission of violation of probation in light of this opinion. If he decides to admit the violations, or should the trial court find that he violated his probation, Mr. Marshall is to be resentenced using a corrected scoresheet. If the trial court wishes to depart downwardly from the indicated guidelines sentence, it must announce or write its valid reasons for doing so. We note collaterally that if Mr. Marshall disputes the validity of the additional offenses to be scored, the State is required to corroborate those convictions as is required by law. See Jackson v. State, 588 So.2d 1085 (Fla. 5th DCA 1991); Vandeneynden v. State, 478 So.2d 429 (Fla. 5th DCA 1985); see also Eutsey v. State, 383 So.2d 219 (Fla.1980).

REVERSED and REMANDED for re-sentencing.

PETERSON and THOMPSON, JJ, concur.


author: THOMPSON, J.

text:
    Denise SCHOLZ, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-1997.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.

      Adrienne E. Trent and Wayne L. Allen of Wayne L. Allen & Associates, P.A., Melbourne, for Appellant.
    Therese Pine, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellee.
   THOMPSON, J.

Denise Scholz appeals an order by the Unemployment Appeals Commission (“UAC”) affirming the denial of unemployment benefits by preventing Scholz from backdating her unemployment benefits claim. We affirm.

After an administrative hearing, the appeals referee found:

The claimant filed her initial claim for unemployment compensation benefits effective September 23, 2001. The claimant’s benefits expired on September 22, 2002. The claimant went into the “one stop” career center on September 24, 2002, and spoke with an employee. The employee did not tell the claimant she could not file her claim, and the claimant did not ask the employee if she could file her claim at that time. The claimant was told that she needed to earn three times the weekly benefit amount to qualify for receiving benefits. The claimant did not file her claim at that time because she believed she needed to earn three times the benefit amount to file her claim. The claimant filed her claim on October 19, 2002, when she earned three times her weekly benefit amount.

The referee concluded:

The record reflects that the claimant filed her claim for benefits on October 19, 2002. There is not evidence in the record to support a finding that the claimant filed a claim before October 13, 2002, or was stopped by the Agency from filing her claim. The claimant was not given misinformation from the Agency pertaining to filing her claim. Accordingly, the claimant is ineligible for backdating from September 22, 2002, through October 12, 2002.

Scholz contends that she did not file her claim in a timely manner because of conflicting information provided by agency employees, warranting a reversal of the referee’s decision. An administrative agency’s findings should not be disturbed on appeal if those findings are supported by competent, substantial evidence, Gfrorer v. Unemployment Appeals Commission, 864 So.2d 1290 (Fla. 5th DCA 2004), and we conclude that the referee’s findings are supported by competent, substantial evidence. Scholz cites Curtis v. Florida Unemployment Appeals Commission, 784 So.2d 1186 (Fla. 2d DCA 2001) and Dines v. Florida Unemployment Appeals Commission, 730 So.2d 378 (Fla. 3d DCA 1999), and argues that she should not be denied benefits due to the wrongful actions of the agency’s employees, but these cases are distinguishable. The claimants in the cited cases were excused from the agency requirements because they were told erroneously that they no longer qualified for benefits. However, in the instant case, Scholz was not given inaccurate information. She was told that she needed to make three times her benefit amount to qualify, but she neglected to ask if she was still eligible to re-file her claim.

AFFIRMED.

PETERSON and MONACO, JJ., concur.


author: PETERSON, J.

text:
    Terry ALBRECHT, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-2829.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    Terry Albrecht, Bushnell, pro se.
    John D. Maher, Tallahassee, for Appel-lee Unemployment Appeals Commission.
   PETERSON, J.

Terry Albrecht appeals an order of the Unemployment Appeals Commission, (“UAC”), affirming a referee’s dismissal of his claim as untimely.

Albrecht’s initial claim for unemployment compensation benefits was denied. He received written notice that if he wished to appeal the denial, he could do so within twenty days by filing on-line on the internet at www.fluidnow.com/appeals, by mail or by fax. He chose to use the internet to file his appeal, made a followup telephone call to determine that the UAC received his appeal, and he talked with a UAC representative who told him “Hold on, sometimes these take awhile; the appeals go to Tallahassee and are farmed out from there to different offices.” Apparently, problems existed with the internet method of filing and Albrecht’s appeal was not received until beyond the filing deadline.

The UAC does not dispute Albrecht’s assertion that he filed a timely appeal and that he persisted in attempting to use the internet method, but claims that he should have used the mail or fax and that no good cause exceptions are allowed by the statute prescribing the time limitations. § 443.151(3)(a), Fla. Stat. (2003).

The disposition of this appeal is governed by Frederick v. Florida Unemployment Appeals, 834 So.2d 957 (Fla. 3d DCA 2003), holding that in the absence of an evidentiary hearing, the dismissal of a claimant’s appeal to the UAC as being untimely was improper, even though the governing statute and rule did not provide for a good cause exception. In Frederick, the claimant had been given the incorrect fax number and used that number to file.

We vacate the order dismissing Al-brecht’s appeal to the UAC. We remand for an evidentiary hearing to determine whether he made a timely filing, notwithstanding the UAC’s failure to receive it timely because of problems that existed with the internet method of filing.

REVERSED and REMANDED.

PALMER and ORFINGER, JJ., concur.


text:
    Curlee BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3441.
    District Court of Appeal of Florida, First District.
    April 13, 2004.
    Curlee Brown, pro se, petitioner.
    Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the January 15, 2003, order in Alachua County Circuit Court case number 2001-4141-CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

ERVIN, WEBSTER, and DAVIS, JJ., concur.


text:
    Ronnie L. HELLUM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4362.
    District Court of Appeal of Florida, First District.
    April 13, 2004.
    Ronnie L. Helium, pro se, petitioner.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Ronnie Helium petitions this court for a writ of mandamus, complaining that the Circuit Court for Bay County has failed to act on his motion for postconviction relief in case number 00-2799-CF in a timely manner. The motion has been pending for over nine months and the state has yet to file a response as ordered by the circuit court. We are compelled to agree that the delay is unreasonable and, accordingly, grant relief. See Bernard v. State, 734 So.2d 606 (Fla. 1st DCA 1999).

The circuit court is directed to act on the motion for postconviction relief within 30 days of issuance of mandate in this cause by either disposing of the motion without a hearing or, if a hearing is found to be necessary, entering an order setting a hearing to be conducted within a reasonable time thereafter.

PETITION GRANTED.

ALLEN, PADOVANO and HAWKES, JJ., concur.


text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. Jo Lynn McKIM, Appellee.
    No. 1D03-2092.
    District Court of Appeal of Florida, First District.
    April 13, 2004.

      Lucy Goddard-Teel, District Legal Counsel, Department of Children and Family Services, Gainesville, for appellant.
    Bennett A. Hutson, of Davis & Hutson, L.C., Gainesville, for appellee.
   PER CURIAM.

The Florida Department of Children and Family Services (Department) appeals from a final judgment denying its request for adult protective services for the appel-lee, Jo Lynn McKim. The Department asserts that the trial court erred as a matter of law in determining that it had no statutory authority to order protective services under section 415.1051(1), Florida Statutes, of the Adult Protective Services Act, even though the court found by clear and convincing evidence that appellee lacks capacity to consent to protective services and is a vulnerable adult in need of services. We affirm.

Pursuant to section 415.1051(1), Florida Statutes, the Department filed a petition for an order authorizing adult protective services for the appellee, alleging that the 39-year old was a vulnerable adult in need of protective services because of self neglect, and to maintain and ensure her health, safety, and well-being. The Department’s petition alleged that the appel-lee had difficulty walking; she required assistance for dressing, bathing, grooming, and toileting; she had a history of hospitalization, alcohol abuse, falling and being unable to get up, weakness, failure to eat, dehydration, incontinence, skin breakdown, and confusion; and she suffered from a potassium deficiency and hypothyroidism, requiring several prescription medications which she was unwilling or unable to manage as prescribed. The petition also stated that the appellee was found in her home covered in feces, and that she had not eaten or taken liquids for multiple days, resulting in her hospitalization. The petition alleged that the appellee lacked capacity to consent to the provision of protective services based on the following facts: the respondent had been diagnosed with cognitive impairment, specifically related to memory, which prevents her from making informed decisions regarding her care; the respondent has impaired attention and concentration, an inability to give a history due to memory impairments, and impaired insight and judgment.

At the hearing on the petition, the Department presented evidence to support the allegations made in the petition through the testimony of witnesses, including the appellee’s father, her physician, and the social worker from the hospital. The medical testimony and that of the social worker established that the appellee required 24/7 care, and it would not be safe for her to return to her home.

The trial court found by clear and convincing evidence

[The appellee] lacks the capacity to consent to protective services and meets the statutory definition of a “vulnerable adult in need of services” as defined in § 415.102(27), Fla. Stat., because of self neglect.

Nevertheless, .the court found as a matter of law that it did not have authority to order protective services in the form of involuntary placement in a licensed facility because the statutory definition of “neglect” requires that “neglect” have occurred at the hand of a caregiver, and there was insufficient evidence of caregiver neglect.

The Department urges us to consider overall statutory intent and allow- it’ to provide adult protective services for ap-pellee, a party clearly in need of such services. While the Department’s view in this case may be supported by sound pub-lie policy consideration, we are constrained as the trial judge was by the unambiguous language of the statute: adult protective services may only be provided to a non-consenting adult if such adult is subject to abuse, exploitation, or neglect of another person.

The supreme court stated the duty of the courts when asked to construe unambiguous statutory language in State v. Jett, 626 So.2d 691 (Fla.1993):

It is a settled rule of statutory construction that unambiguous language is not subject to judicial construction, however wise it may seem to alter the plain language. While the dissent’s view below has much to commend it, we find that the decision whether or not to engraft that view into the Florida Statutes is for the legislature. We trust that if the legislature did not intend the result mandated by the statute’s plain language, the legislature itself will amend the statute at the next opportunity.

Id. at 692.

Thus, where a department’s construction of a statute is inconsistent with clear statutory language it must be rejected, notwithstanding how laudable the goals of that department. See Cleveland v. Fla. Dep’t of Children & Families, 868 So.2d 1227, 1229 (Fla. 1st DCA, 2004).

Section 415.1051, Florida Statutes, authorizes the court to order protective services for a vulnerable adult who is being “abused, neglected, or exploited.” As the trial judge held, section 415.1051 applies exclusively to a vulnerable adult who is being mistreated by another person. This limitation is clear from the statutory definitions of abuse, neglect, and exploitation. “Abuse” is defined as “any willful act or threatened act by a caregiver that causes or is likely to cause significant impairment to a vulnerable adult’s physical, mental, or emotional health.” § 415.102(1), Fla. Stat. (emphasis added). Likewise, “neglect” is defined as “the failure or omission on the part of the caregiver to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult.” § 415.102(15), Fla. Stat. (emphasis added). The theme is repeated in the definition of “exploitation,” which is limited to a situation in which one person is attempting to take advantage of another for personal reasons or financial gain. § 415.102(7)(a), Fla. Stat.

The Department argues that the first two sentences of section 415.102(15), define neglect as an omission or failure by a caregiver, but concludes that the statute is ambiguous, because the third sentence of the definition does not use the term “caregiver.” The problem with this analysis is that the third sentence necessarily refers to the first two. It cannot be read in isolation as if it created a new and different kind of neglect. When the Legislature said in the third sentence that neglect is “repeated conduct or a single incident of carelessness,” it was merely defining the kind of omission that can be regarded as neglect. This sentence does not change the subject entirely by introducing for the first time the concept of self-neglect.

The Department also relies on the fact that the definition of “vulnerable adult in need of services” in section 415.102(27), is broad enough to include self-neglect. The phrase “vulnerable adult in need of services,” however, is used in another part of the statute, which deals exclusively with services provided with the consent of the adult. This phrase is used only in section 415.105, which states:

(1) PROTECTIVE SERVICES WITH CONSENT. — If the department determines through its investigation that a vulnerable adult demonstrates a need for protective services or protective supervision, the department shall immediately provide, or arrange for the provision of, protective services or protective supervision, including in-home services, provided that the vulnerable adult consents. A vulnerable adult in need of services as defined in s. 415.102 shall be referred to the community care for disabled adult’s program, or to the community care for the elderly program administered by the Department of Elder Affairs.

§ 415.105(1), Fla. Stat. (emphasis added). This section is the only part of Chapter 415 that uses the phrase “vulnerable adult in need of services.” The significance of this fact is simply that the statute makes protective services available to adults who are in need of supervision, even if they have not been abused, neglected, or exploited by someone else. That does not lend support to the Department’s argument, however, because the Department was not proceeding under this section of chapter 415.

Section 415.1051, Florida Statutes, which is at issue in this case, does not employ the phrase “vulnerable adult in need of services.” Rather, it uses the phrase “vulnerable adult,” which is defined separately in the statute. Unlike the definition of “vulnerable adult in need of services,” the definition of “vulnerable adult” does not include the concept of self-neglect. Compare § 415.102(26), Fla. Stat. with § 415.102(27), Fla. Stat.

We therefore affirm.

WOLF, C.J., PADOVANO and POLSTON, JJ., concur.


author: WEBSTER, J.

text:
    David FRANK, individually and d/b/a Frank’s Landscaping, Appellant/Cross-Appellee, v. Wayne WYATT, Appellee/Cross-Appellant.
    No. 1D03-1520.
    District Court of Appeal of Florida, First District.
    April 13, 2004.

      Carl D. Dawson of Dawson, Galant & Sulik, P.A., Jacksonville, for Appellant/Cross-Appellee.
    Randall K. Erler of Wood, After & Associates, P.A., Jacksonville, for Appel-lee/Cross-Appellant.
   WEBSTER, J.

Appellant, who was a defendant in the trial court, seeks review of a directed verdict entered against him at the close of the evidence on an affirmative defense in a negligence action arising out of a collision involving two motor vehicles. He argues that the defense that his vehicle had been converted by the driver involved in the collision prior to the collision should have been submitted to the jury. Appellee, the plaintiff in the trial court, cross-appeals. He argues that (1) the trial court should have granted his motion for a directed verdict on the issue of permanency of his injuries; and (2) because the jury’s finding of “no permanency” was against the manifest weight of the evidence and the verdict was legally inadequate and inconsistent, the trial court should have granted his motion for a new trial on damages. For the reasons that follow, we reverse the directed verdict on appellant’s affirmative defense, which requires that we remand for a new trial, and we affirm the trial court’s denial of appellee’s motion for a directed verdict on the permanency issue. Our disposition of the issue raised by appellant moots the remaining issue raised by appellee on his cross-appeal.

The law is quite clear to the effect that:

[T]he vicarious liability of an owner under the dangerous instrumentality doctrine should [not] depend solely on the issue of. whether there was consent to use the vehicle initially. Rather, ... liability should be determined on the basis of whether there has, in fact, been a conversion or theft of the vehicle prior to the negligence at issue.... [O]nce a vehicle has been the subject of a theft or conversion, the owner’s initial consent has been vitiated and the vehicle is no longer on public highways “by authority of’ the owner.

Hertz Corp. v. Jackson, 617 So.2d 1051, 1053 (Fla.1993). Notwithstanding the trial court’s conclusion to the contrary, there was ample evidence presented, in the form of appellant’s trial testimony and the police report for unauthorized use of a motor vehicle made by appellant prior to the collision, from which the jury could have found that the vehicle had been converted before the collision. While there were inconsistencies between appellant’s trial testimony and his earlier deposition testimony, those inconsistencies went merely to the weight to be given to appellant’s testimony and were, therefore, exclusively for the jury to resolve. See, e.g., Slavin v. Kay, 108 So.2d 462, 467-68 (Fla.1959) (on rehearing granted) (“the credibility of the witnesses, their bias or prejudice and other matters concerning the weight to be given the spoken word or other evidence .... are matters wholly within the province of the jury”); Russ v. City of Jacksonville, 734 So.2d 508, 511 (Fla. 1st DCA 1999) (same, citing Slavin).

Because the trial court should have denied the motion for directed verdict and permitted the jury to determine whether appellant’s vehicle had been converted before the collision, we must reverse the judgment, and remand for a new trial. In doing so, we reiterate comments recently made in another appeal where we reversed a directed verdict entered against defendants by the same trial judge, among them that, “[bjefore granting a directed verdict, the trial court must view the evidence and testimony in the light most favorable to the nonmoving party”; that, “if there is any evidence upon which a jury could lawfully find for the nonmoving party, a verdict should not be directed”; and that “[mjotions for directed verdict are rarely appropriate in negligence cases.” Howell v. Winkle, 866 So.2d 192 (Fla. 1st DCA 2004). We note, further, that, had the trial court reserved ruling on the motion and submitted appellant’s conversion affirmative defense to the jury as requested by appellant and permitted by Florida Rule of Civil Procedure 1.480(b), a second trial might have been avoided.

As to the first issue raised by appellee on his cross-appeal, we conclude that the trial court correctly denied his motion for a directed verdict that the injuries he received as a result of the collision were permanent. There was conflicting expert testimony regarding this issue. Even were that not the case, a jury is free to weigh the credibility of an expert witness just as it does any other witness, and to reject such testimony, even if uncontradicted. See Republic Servs. of Fla. v. Poucher, 851 So.2d 866, 871 (Fla. 1st DCA 2003) (relying, among other cases, on Easkold v. Rhodes, 614 So.2d 495 (Fla.1993), and Shaw v. Puleo, 159 So.2d 641 (Fla.1964)). See also Fla. Std. Jury Instr. (Civ.) 2.2(b). Contra Rose v. Dwin, 762 So.2d 532, 533 n. 1 (Fla. 4th DCA 2000); Williamson v. Superior Ins. Co., 746 So.2d 483, 485 (Fla. 2d DCA 1999). Our disposition of the issue raised by appellant moots the remaining issue raised by appellee’s cross-appeal.

We reverse the directed verdict entered against appellant on his conversion affirmative defense; affirm the denial of a directed verdict on the permanency issue; and remand for a new trial.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

BENTON and PADOVANO, JJ., concur.


text:
    Warren N. GOURLEY; WNG Seacrest, Ltd., d/b/a Seacrest, Ltd., a Florida limited partnership; its general partner, 904 Associates, Inc., a Florida corporation; and WNG Associates, Inc., a Florida corporation, Petitioners, v. James SZABO and Wife, Linda Szabo, Respondents.
    No. 1D03-4586.
    District Court of Appeal of Florida, First District.
    April 13, 2004.

      Mark H. Welton of Welton & Williamson, P.A., Crestview, for Petitioners.
    John P. Townsend, Fort Walton Beach, for Respondents.
   PER CURIAM.

Petitioners have failed to carry their burden of demonstrating the existence of irreparable injury. Accordingly, their, petition for a writ of certiorari is dismissed. See Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996) (en banc).

DISMISSED.

WEBSTER, BENTON and PADOVANO, JJ., concur.


text:
    Corey DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4896.
    District Court of Appeal of Florida, First District.
    April 13, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his rule 3.800(a) motion seeking jail credit for the incarcer-ative portion of his probationary split sentence. Because the trial court failed to attach documentation conclusively refuting the appellant’s allegation or evidencing a waiver of such credit, we reverse.

The appellant alleges that his sentence for violation of probation is illegal because he was not granted credit for the time served on the incarcerative portion of his original sentence. He further contends that he would be entitled to immediate release on his violation of probation sentence if awarded the proper amount of prison credit. The record indicates the appellant received a “probationary split sentence” of three years of incarceration, none of which was suspended, followed by three years of probation. See, e.g., Poore v. State, 531 So.2d 161, 164 (Fla.1988.)

Upon violating the probationary portion of a split sentence, a defendant is entitled to credit for time served on the incarcerative portion, unless a waiver of such credit is clearly evidenced in the record. Wells v. State, 751 So.2d 703, 704 (Fla. 1st DCA 2000); Singletary v. Slay, 688 So.2d 319 (Fla.1997). Here, the trial court summarily denied the appellant’s motion for additional jail credit without attaching portions of the record to refute the appellant’s claim. See Moore v. State, 741 So.2d 577 (Fla. 5th DCA 1999). We, therefore, reverse the order, and remand with instructions to the trial court to attach documentation conclusively refuting the appellant’s allegation or for an award of such credit.

REVERSED and REMANDED.

ALLEN, PADOVANO and LEWIS, JJ., concur.


text:
    COCA-COLA BOTTLING COMPANY and Constitution State Service Company, Appellants, v. Michael PERDUE, Appellee.
    No. 1D04-0660.
    District Court of Appeal of Florida, First District.
    April 13, 2004.
    Lamar D. Oxford and Alan D. Kalinoski of Dean, Ringers, Morgan & Lawton, Orlando, for appellants.
    Joey D. Oquist, St. Petersburg, for ap-pellee.
   PER CURIAM.

DISMISSED. See Sun Sentinel and Tribune Co. v. Petrovich, 744 So.2d 1056 (Fla. 1st DCA 1999).

ERVIN, WEBSTER and DAVIS, JJ., concur.


author: FARMER, C.J.

text:
    James W. BRANT, Appellant, v. DOLLAR RENT A CAR SYSTEMS, INC., and Jocelyn Fleuridor, Appellees.
    No. 4D02-2211.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.

      Kimberly L. Boldt of Angelo, Barry & Boldt, P.A., Fort Lauderdale, and Douglas P. Johnson & Associates, P.A., Fort Laud-erdale, for appellant.
    Steven E. Goldman of Goldman & Hellman, Fort Lauderdale, for appellees.
   FARMER, C.J.

In this automobile accident case, the jury found plaintiff and defendant evenly negligent, awarding $42,000 for past medical expenses, $23,000 for future medical expenses, and $75,000 for lost earnings in the past. The verdict included no damages for future earnings and no damages for either past or future pain and suffering. The trial court denied plaintiffs motion to resubmit the case to the jury on the grounds that the verdict was internally inconsistent.

Plaintiff timely served a motion for an additur or new trial, again contending that the jury’s verdict was inconsistent in awarding future medical expenses but nothing for pain and suffering. At the hearing on the motion, the defense conceded that only an additur might be proper but not a new trial. The trial court denied a new trial but deferred ruling on the question of an additur. Later, and without explanation, the trial court entered an order fixing an additur of $25,000 for pain and suffering. We agree with plaintiff that the trial court should have granted a new trial rather than itself determining the amount of unliquidated damages for pain and suffering without his consent.

The outcome in this case is controlled by section 768.043(1) and the supreme court decision in ITT Hartford Insurance Co. of the Southeast v. Owens, 816 So.2d 572 (Fla.2002), which also involved an additur. As the court explained:

“the Third District’s determination that section 768.043 does not require a defendant to be given the option of a new trial when an additur is granted is contrary to the express language of the statute and analogous precedent concerning re-mittiturs.” [e.o.]

816 So.2d at 575-76. The court went on to explain:

“In other words, the complaining party need not accept the decision of the judge with respect to remittitur or additur. The party may have the matter of damages submitted to another jury. Defendants’ attack on the constitutionality of the statute is without merit.”

816 So.2d at 576-77. Obviously the complaining party — here the plaintiff — is not required under ITT Hartford to accept a judge’s determination of the amount of an additur but is, instead, entitled to have the matter of pain and suffering submitted to another jury.

We add the following. The trial judge and defense counsel appear to have read section 768.043(1) to authorize trial judges to set the amount of an additur for pain and suffering damages, even when the complaining party does not consent to the additur. When the subject is unliquidated damages for intangible losses such as pain and suffering, the Legislature’s authority to have trial judges fix the amount of something the jury has not seen fit to include, and to which the adverse party does not consent, is constitutionally dubious. See Art. I, § 22, Fla. Const. (“The right of trial by jury shall be secure to all and remain inviolate.”). As one Florida appellate court has explained:

‘Where the verdict is excessive, the practice of substituting a remission of the excess for a new trial is not without plausible support in the view that what remains is included in the verdict along with the unlawful excess- — in that sense that it has been found by the jury — and that the remittitur has the effect of merely lopping off an excrescence. But, where the verdict is too small, an increase by the court is a bald addition of something which in no sense can be said to be included in the verdict.... To so hold is obviously to compel the plaintiff to forego his constitutional right to the verdict of a jury and accept ‘an assessment partly made by a jury which has acted improperly, and partly by a tribunal which has no power to assess.’ ”

Sarvis v. Folsom, 114 So.2d 490, 492 (Fla. 1st DCA 1959) (quoting Dimick v. Schiedt, 293 U.S. 474, 482, 55 S.Ct. 296, 79 L.Ed. 603 (1935)).

To be sure, even if section 768.043(1) did not expressly provide that the adverse party must consent to the additur in order to avoid a new trial, it would be error for a judge to read a power to fix unliquidated damages for intangible losses into the statute by legislative implication. To read such a grant by implication would be to introduce constitutional doubts into the statute. See Adams v. Wright, 403 So.2d 391 (Fla.1981) (statute granting power to order additur did not violate constitutional right to trial by jury because statute expressly required new trial if adverse party did not consent to additur). That method of statutory construction would be contrary to the long tradition of avoiding interpretations that might make a statute invalid. See Schultz v. State, 361 So.2d 416, 418 (Fla.1978) (well established that when reasonably possible statute should be construed to avoid conflict with constitution); Dep’t of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976) (same); State v. Dinsmore, 308 So.2d 32 (Fla.1975) (same). In any event, section 768.043(1) expressly provides that the adverse party need not accept the amount of the additur and may instead insist on a new trial on damages. § 768.043(1), Fla. Stat. (2003) (“If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.”). We therefore hold that, once the trial court held that the damages were inadequate, plaintiff was entitled to refuse to accept the amount set by the trial judge and have a new jury determine the amount of any damages for pain and suffering.

REVERSED.

GUNTHER and TAYLOR, JJ., concur.


text:
    Samuel ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1087.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Samuel Ross, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

Samuel Ross appeals an order entered January 9, 2004, summarily denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court was without jurisdiction to rule on this motion because Ross’s direct appeal is still pending before this court, filed through counsel on October 2, 2003. See Cazeau v. State, 858 So.2d 1213 (Fla. 4th DCA 2003).

Therefore, as we did in Cazeau, we vacate the January 9, 2004 order and direct the trial court to dismiss the motion without prejudice. Ross shall be allowed to refile, without the penalties affixed to successive motions as announced in rule 3.850(f), after this court issues its mandate in the pending case, 4D03-3838. See id.; Daniels v. State, 712 So.2d 765 (Fla.1998).

GUNTHER, STEVENSON and TAYLOR, JJ., concur.


text:
    Michelle GRUSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4189.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

Jury duty is a badge of citizenship. It is also the cornerstone of our system of justice. If citizen jurors can avoid this duty with impunity, the system would be compromised and justice denied. In presiding over the selection of jurors, trial judges are engaged in a highly sensitive exercise. They must balance the need for those citizen jurors summoned to do their duty, against an understandable distaste for imposing extraordinary sacrifice on any individual thus called.

We recognize the problem inherent in punishing jurors. We also recognize, however, the importance of enforcing this citizen duty. If jurors can successfully use the processes of jury selection to work an improper avoidance of duty, few will answer the call to serve. If that should happen, every citizen would be the loser.

Today we affirm the conviction of a recalcitrant juror for direct contempt of court. We have no hesitancy in upholding the trial judge’s handling in this case and commend her attention to detail and fairness in so doing. Because an opinion could rightly serve as a deterrence against the few who would abuse this privileged duty of jury service, we offer this opinion.

Gruss was summoned for jury service, called to appear, and was sworn to answer questions on her voir dire truthfully. After the first group of jurors, which included Gruss, was excused and ordered to return the next day, Gruss asked a court deputy if she could address the Court.

Gruss told the trial judge that it would be a hardship to return the next day because of business commitments. The judge responded that any hardship would not be “undue”. As what followed forms the basis for the criminal contempt finding, we set it out in full:

GRUSS: I am the only one who does this. I do the recruiting, I have appointments tomorrow that I have to be at.
JUDGE: What kind of appointments?
GRUSS: Interview. Hires. Orientation and then interview.
JUDGE: Ma’am, you got your notice. It said you’re here for trial.
GRUSS: Okay, fine, then my feelings have changed. I don’t think I can give an unbiased opinion.
JUDGE: You understand you took an oath today?
GRUSS: Yes, as long as you think about it, if your feelings change throughout, you can change your mind.
JUDGE: Do you understand what you just did when I would not excuse you for those reasons, ma’am? You just all of a sudden said okay, well that doesn’t work. I guess I can’t be fair. I would like for you to tell me why I shouldn’t hold you in contempt of this court.
GRUSS: I am sorry. I just don’t think I could be fair. I really need to be—

After scrupulously complying with the procedural requirements for direct criminal contempt of court, the judge found her in contempt and ordered her to write a letter of apology and return to court the next day to read it to the jurors after which time she would be excused. After-wards, the judge commented:

“that was just so blatant I just couldn’t let it go.... Her demeanor was so defiant, obnoxious, I just could not let — I’ve never done that, but I could not let that pass — her disrespect to this Court, to these proceedings and to everybody who’s involved.”

The trial judge properly found that Gruss was attempting to manipulate the process to achieve a release from this most important of duties — a release that had just been denied on the merits. Rather than accepting the trial judge’s decision, which was supported by competent evidence, the juror in waiting changed her answers relating to bias and prejudice, simply to avoid her duty. In finding this conduct contemptuous, the trial judge had an adequate record on which to base her finding. There is no error in this regard.

AFFIRMED.

GROSS and TAYLOR, JJ., concur.


text:
    Michael BOCKLE, Appellant, v. Juliana RUSSELL, Appellee.
    No. 4D03-1633.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Patricia A. Rathburn of Patricia A. Rathburn, P.A., Fort Lauderdale, for appellant.
    H.T. Maloney of Patterson & Maloney, Fort Lauderdale, for appellee.
   FARMER, C.J.

In this appeal from a final judgment of dissolution of marriage, we affirm on all issues save one.

The court’s temporary order had allowed visitation for the father mid-week. There was no evidence at trial on the subject of visitation, and certainly nothing suggesting the status quo with regard to visitation was not working out. We note that:

“It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of child rearing.”

§ 61.13(2)(b)(l), Fla. Stat. (2003). Because of this policy and the statutory preference to continue this kind of contact with the child in spite of the divorce, we deem it an abuse of discretion to make a change in such visitation without any evidence indicating the necessity therefor.

Accordingly, we reverse the visitation schedule set out in the final judgment and remand for the entry of an order restoring the former visitation schedule.

GUNTHER and TAYLOR, JJ., concur.


text:
    Michael KOT, Appellant, v. Bruni HOLMBERG, Appellee.
    No. 4D03-1142.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Jack J. Aiello and Michael D. Simon of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellant.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and William R. Merkle, Boyn-ton Beach, for appellee.
   PER CURIAM.

In determining the petition for incapacity of Rosalie J. Klein, the probate court heard testimony regarding the execution of an amendment to Ms. Klein’s revocable trust. Although the trust was not before the court, in its order determining incapacity the court adjudged “that the 1994 trust agreement continues in full force and effect and the assets of the ward shall be continued to be controlled by the then nominated guardian Bruni Holmberg.” The validity of the trust was never before the court for determination, as appellee concedes and the court acknowledged in other parts of the order. Therefore, we affirm the order, except as to the foregoing statement, which on remand we direct be stricken from the order.

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    Paul GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4248.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Jason T. Forman of the Law Offices of Jason T. Forman, P. A., Ft. Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Paul Griffin appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing on one point, as the plea colloquy and forms do not conclusively refute Griffin’s claim of misadvice associated with his entitlement to gain time and its effect on the length of his sentence. See State v. Leroux, 689 So.2d 235 (Fla.1996); Lewis v. State, 795 So.2d 1061 (Fla. 4th DCA 2001).

FARMER, C.J., KLEIN and MAY, JJ., concur.


text:
    Michael LANNING, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-848.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Carey Haughwout, Public Defender, and Sarah Sandler, Assistant Public Defender, Ft. Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

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

STONE, POLEN and MAY, JJ., concur.


text:
    LOCKHEED MARTIN, Appellant, v. Anthony J. GERACE, Frank Casey, et al., Appellee.
    No. 5D03-489.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2004.
    Sylvia H. Walbolt, Matthew J. Coniglia-ro and Rachel A.. Ramsey, of Carlton Fields, P.A., St. Petersburg, and Leslie Joughin, III, Wesley D. Tibbals and James W. Seegers, of Akerman Senterfitt, Tampa, for Appellant.
    Mark A. Ash and Zebulon D. Anderson, of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP, Raleigh, North Carolina, for Appellees.
    Darryl M. Bloodworth and Nichole M. Mooney, of Dean, Mead, Egerton, Blood-worth, Capouano & Bozarth, P.A., Orlando, for Appellees, Anthony J. Gerace and Tompkins Associates, Inc.
    Hal K. Litchford and Scott K. Lippman, of Litchford & Christopher, Orlando, for Appellees, Tompkins Associates, Inc.
   PER CURIAM.

This summary judgment case is somewhat unusual because of its size. There are ninety-four volumes of record and dozens of depositions and affidavits. In all this, however, we agree with the conclusion of the trial court that there is simply no evidence to support a legally sufficient claim of tortious interference with an advantageous business relationship, breach of fiduciary duty, civil conspiracy or unjust enrichment against any defendant. And the evidence of any breach of Mr. Gerace’s duty of loyalty to Lockheed Martin, such as his involvement in the September 30, 2000, meeting is, at best, de minimis. Entry of summary final judgment was proper.

AFFIRMED.

SAWAYA, C.J., GRIFFIN and MONACO, JJ., concur.


text:
    James L. WOODSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-563.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2004.
    James L. Woodson, Apalachicola, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the lower court’s order that denied in part his motion to correct an illegal sentence brought pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. Appellant argues that the trial judge erred in not reducing his sentence by the correct amount of credit for time served prior to sentencing. We reverse because the trial court failed to attach pertinent portions of the record to support the findings made in its order. See Bunch v. State, 622 So.2d 525 (Fla. 5th DCA 1993). We remand this cause with instructions that the trial court either grant the relief or attach the portions of the record that support denial.

REVERSED and REMANDED.

SAWAYA, C.J., PALMER and TORPY, JJ., concur.