text:
    Jeb BUSH, Governor of the State of Florida, Petitioner, v. Michael SCHIAVO, as Guardian of the person of Theresa Marie Schiavo, Respondent.
    No. 2D03-5244.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.

      Kenneth L. Connor of Wilkes & McHugh, P.A., Tampa, for Petitioner.
    George J. Felos of Felos & Felos, P.A., Dunedin, for Respondent.
   PER CURIAM.

The petition for writ of prohibition filed by Jeb Bush, Governor of the State of Florida, challenges the circuit judge’s denial of the Petitioner’s motion to disqualify the judge from presiding over further proceedings. In this motion Petitioner argued that disqualification was merited because the judge characterized chapter 2003-418, Laws of Florida, as “presumptively unconstitutional”; because he stated that this legislation is currently depriving Theresa Schiavo of her right to privacy; and because the circuit judge read from prepared notes in making a ruling, demonstrating that he had prejudged the matter before hearing argument. We deny the requested relief.

On the day that chapter 2003-418 became law, Petitioner exercised the authority it conveyed to him and ordered the reintroduction of hydration and sustenance to Mrs. Schiavo, effectively overruling the order of the probate division of the circuit court undertaken as a result of this court’s mandate in Schindler v. Schiavo (In re Guardianship of Schiavo), 851 So.2d 182 (Fla. 2d DCA), review denied, 855 So.2d 621 (Fla.2003) (table decision). This original prohibition proceeding grows out of an action instituted in the civil division of the circuit court by Michael Schiavo, Mrs. Schiavo’s husband and guardian, to test the constitutionality of chapter 2003-418. From that circuit court case this court currently has pending an interlocutory appeal that challenges rulings by the circuit court on venue and personal jurisdiction. Bush v. Schiavo, No. 2D03-5123. The comments of the circuit judge that prompted Petitioner’s motion to disqualify him arose in connection with a ruling on the propriety of a stay of the circuit court proceedings during the pendency of the interlocutory appeal.

I.Presumptive Unconstitutionality

As the legislature has recognized, chapter 2003-418 implicates the right of privacy. Fla. S. Comm, on Rules & Calendar, SB 12-E (2003) Staff Analysis 3 (rev.Oet.21, 2003) (on file -with comm.). A legislative act impinging on the right of privacy is presumptively unconstitutional unless proved valid by the State. N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 28 Fla. L. Weekly S549, S552, — So.2d -, -, 2003 WL 21546546 (Fla. July 10, 2003). The circuit judge’s statement that this legislation is presumptively unconstitutional simply announced the standard by which he believes the constitutionality of the statute is to be measured and is therefore legally insufficient to create a well-founded fear of prejudice or bias.

II.Deprivation of Theresa Schiavo’s Right to Privacy

In its order lifting the automatic stay provided for by Florida Rule of Appellate Procedure 9.310(b)(2), the circuit judge concluded that the subject legislation and the Governor’s Executive Order interfered with Mrs. Schiavo’s right of privacy. Review of orders from the probate case and this court’s opinions on the matter would lead a reasonable person to that conclusion. This court, when affirming the probate judge’s final judgment authorizing discontinuance of artificial life support for Mrs. Schiavo, alluded to the role of the right of privacy in matters of this kind. Schindler v. Schiavo (In re Guardianship of Schiavo), 780 So.2d 176, 179 (Fla. 2d DCA), review denied, 789 So.2d 348 (Fla.2001) (table decision). In a subsequent decision from this court, Schindler v. Schiavo (In re Guardianship of Schiavo), 792 So.2d 551, 564 (Fla. 2d DCA 2001), this court emphasized that the courts: are attempting to honor Mrs. Schiavo’s constitutional right of privacy as it affects her medical decisions. . Implicit in the most recent decision from this court reviewing action of the probate court, again affirming the probate court’s order to discontinue hydration and sustenance for Mrs. Schia-vo, is a determination that her right to privacy is infringed by utilization of life-prolonging procedures. Schindler, 851 So.2d 182; see also In re Guardianship of Browning, 568 So.2d 4, 13 (Fla.1990) (holding that a surrogate or proxy may exercise the constitutional right of privacy for an incompetent person who, while competent, expressed his or her wishes to discontinue artificial life-prolonging procedures).

The circuit judge’s reference to the infringement upon Mrs. Schiavo’s rights was offered in support of his decision to lift the automatic stay and was thus part of his legal analysis. More important, a determination that legislation impinges on a person’s right to privacy is not equivalent to a conclusion that the legislation suffers from constitutional infirmity. See Winfield v. Div. of Pari-Mutuel Wagering, Dep’t of Bus. Regulation, 477 So.2d 544, 547 (Fla.1985) (holding that constitutionally protected privacy rights, when invaded by legislation, must yield to a compelling governmental interest when demonstrated). The Petitioner’s assertion that the circuit judge had prejudged the case by concluding that Mrs. Schiavo’s right of privacy was invaded by the subject legislation, in view of legal precedent so holding, is legally insufficient to instill a well-founded fear of prejudice or bias. The circuit judge’s, comments constitute legal views that reflect the reported appellate decisions of the probate contest between Mr. Schiavo and the Schindlers..

III.The Circuit Court’s Reliance on Prepared Notes

Petitioner reports that when the circuit judge orally lifted the automatic stay pending the interlocutory appeal in this court, he consulted notes that had been prepared in advance, thus signaling his predisposition to rule against the Petitioner prior to the hearing. The record of the hearing in the circuit court establishes that Petitioner was able to fully argue his position at the hearing. Furthermore, the judge took a recess after the arguments were concluded to consider his decision before making his ruling. The performance of preliminary research and the preparation of notes by a judge in anticipation of a hearing, without more, are not sufficient to cause the disqualification of a judge. In this case, the circumstances of the judge’s oral pronouncement of his ruling are not sufficient to create a reasonable fear of bias or prejudice.

TV. Observations of Citizens Reported by Media

In support of the reasonableness of his claim of fear of bias, Petitioner has submitted reports from various media outlets that have quoted participants in the proceedings and other observers who have expressed views on the judge’s possible bias against Petitioner. We do not find these media reports to be helpful in our determination of the issues raised by the petition.

The petition for writ of prohibition is denied with prejudice.

FULMER, DAVIS, and WALLACE, JJ., Concur.

      . The probate contest between Michael Schia-vo as guardian of Theresa Schiavo and her parents, the Schindlers, has been the subject of three other written opinions of this court. See Schindler v. Schiavo (In re Guardianship of Schiavo), 800 So.2d 640 (Fla. 2d DCA 2001), review denied, 816 So.2d 127 (Fla. 2002) (table decision); Schindler v. Schiavo (In re Guardianship of Schiavo), 792 So.2d 551 (Fla. 2d DCA 2001); Schindler v. Schiavo (In re Guardianship of Schiavo), 780 So.2d 176 (Fla. 2d DCA), review denied, 789 So.2d 348 (Fla.2001) (table decision).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William WATSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-2736.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Rehearing Denied Jan. 20, 2004.
    William Watson, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We deny this Petition for Writ of Habe-as Corpus alleging ineffective assistance of appellate counsel. It was not ineffective for counsel to forego arguing the propriety of the trial court’s denial of Watson’s Motion to Suppress, as that issue had not been preserved where trial counsel failed to make a contemporaneous objection. Moreover, even if the issue had been preserved, it would have been without merit. The record amply supports the denial of the suppression motion on the merits.

FARMER, C.J., POLEN and HAZOURI, JJ., concur.


text:
    Arick Justin RINALDO, Petitioner, v. STATE of Florida, Respondent.
    Nos. 4D03-1292, 4D03-3525.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Rehearing Denied Jan. 14, 2004.
    Arick Justin Rinaldo, Fort Lauderdale, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for Respondent.
   PER CURIAM.

The court sua sponte redesignates the appeal of the denial of appellant’s pretrial motion to receive “unfettered assistance” of counsel while acting pro se as a petition for writ of certiorari and denies the same. See Logan v. State, 846 So.2d 472, 474-75 (Fla.2003) (recognizing a defendant has no constitutional right “to partially represent himself and, at the same time, be partially represented by counsel”); Brooks v. State, 703 So.2d 504, 505 (Fla. 1st DCA 1997) (noting defendant has no constitutional right to combine right of self-representation with right to assistance of counsel).

The consolidated petition for habe-as corpus relief is also denied. Petitioner does not have a constitutional right to a twelve-member jury. See Williams v. Florida, 399 U.S. 78, 86, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (holding twelve person jury panel “is not a necessary ingredient of ‘trial by jury,’ ” and a six-member panel does not violate defendant’s Sixth Amendment rights); Gibson v. State, 16 Fla. 291, 300 (1877) (finding “a jury composed of six persons is a constitutional jury”). As to the claim that the 1934 amendment to Section 10 of the Declaration of Rights of the Florida Constitution is null and void, that was an amendment to the 1885 constitution. The citizens of Florida enacted a new constitution in 1968, thus superceding any prior constitutional provisions. Petitioner was informed against for the crimes for which he is being held pursuant to Article I, Section 15(a) of the Florida Constitution.

WARNER, STEVENSON and GROSS, JJ., concur.


author: SHARP, W., J.

text:
    Wilson J. VIGLIONE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-81.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2003.
    George S. Pappas of Pappas, Russell & Pepe, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Viglione appeals from his judgment and sentences for kidnaping, false imprisonment, sexual battery and aggravated battery with a deadly weapon. He asserts two points on appeal. First, that the trial court abused its discretion in refusing to allow defense counsel to exercise a peremptory challenge against a prospective female juror because it found the grounds asserted to exclude her were not “gender neutral” and genuine. And second, that the trial court should have excluded as inadmissible hearsay, the testimony of four witnesses for the state as to what the victim told them during telephone calls made to them, while he was being held against his will and threatened during the course of the approximately six and one-half hour kidnaping incident. We affirm.’

The state argued that defense counsel waived the right to raise the peremptory challenge issue on appeal because defense counsel failed to renew its objection to the jury panel before the jury was sworn. The record shows that defense counsel made repeated objections to seating the female juror in question, and asked the court to reconsider its ruling denying the peremptory challenge. This occurred early in the jury selection or challenge process. After six jurors had been seated, the court inquired: “Do I hear any challenges on those six?” Defense counsel said: “No, your Honor.”

Immediately thereafter, the alternate jurors were selected, and all the jurors and prospective jurors were returned to the courtroom. Ones not selected were excused. The court said it intended to give the jurors a “brief instruction.” But it proceeded immediately to swear in the jurors, without asking counsel if they accepted the panel.

The state relies on Milstein v. Mutual Security Life Ins. Co., 705 So.2d 639 (Fla. 3d DCA 1998), which holds that the rule requiring counsel to renew the objection to a juror not excused through the unsuccessful exercise of a peremptory challenge before the jury panel is sworn in order to preserve that issue for appeal purposes applies even if the parties never affirmatively accepted the jury and the court failed to ask counsel if they accepted the jury prior to swearing in the jury panel.

If the point of Joiner is to require counsel to alert the trial judge that he or she still believes reversible error has occurred and why, so that the judge can remedy the matter, then in this case, defense counsel’s repeated objection to seating the female juror and his attempt to back strike her, would appear to have sufficed. However, we do not need to reach that issue because, after reviewing the record we do not find that the trial judge abused his discretion in refusing to allow defense counsel to use a peremptory strike against this juror. Cunningham v. State, 838 So.2d 627 (Fla. 5th DCA 2003); Sharp v. State, 789 So.2d 1211 (Fla. 5th DCA 2001), rev. denied, 817 So.2d 850 (Fla.2002). The appellate court should not “on a cold record, second guess” the trial judge. Cunningham, 838 So.2d at 630.

The state also argues the defense failed to preserve its hearsay objections regarding testimony from two state’s witnesses, although defense counsel timely objected to the hearsay testimony given by two other state witnesses. During the testimony of the first witness, defense counsel said: “If I might, because there’s going to be a lot of this testimony, can I just make this as my continuing objection that you’ve ruled on rather than ultimately objecting?” The court replied: ‘Tes, sir.”

When the second witness began testifying as to what the victim told him on the telephone, defense counsel said: “Once again, objection to hearsay testimony of this witness also.” The court replied: “Overruled. Same basis.” Defense counsel attempted to say something further but was cut off with the court’s “overruled.” The last two witnesses testified without defense counsel raising an objection, to the same kind of hearsay, on the same grounds. It appears that whether the defense objection was intended to be, and was understood by the court to be, a continuing objection to all of the same kind of hearsay is somewhat ambiguous.

However, giving the defense the benefit of the doubt on this issue, we agree with the trial court’s ruling that the victim’s hearsay statements made to the recipients of his telephone calls while he was kidnaped and being threatened, beaten, and forced to try to get money to pay his captors, was admissible either as a spontaneous statement or an excited utterance, pursuant to section 90.803(1) and (2). The victim’s calls for help and pleas for money to obtain his release are similar to a victim’s 911 calls, which we have held are admissible pursuant to the excited utterance or spontaneous statement exception to the hearsay rule. State v. Skolar, 692 So.2d 309 (Fla. 5th DCA 1997).

AFFIRMED.

PETERSON and TORPY, JJ., concur.

      . §§ 787.01(l)(a), 787.02(2), 794.011(3) and 784.045(l)(a)2„ Fla. Stat.

        . See Joiner v. State, 618 So.2d 174 (Fla.1993).

      . See Nelson v. State, 688 So.2d 971 (Fla. 4th DCA), rev. denied, 697 So.2d 1217 (Fla.1997).

      . See Howard v. State, 616 So.2d 484 (Fla. 1st DCA 1993); Thomas v. State, 599 So.2d 158 (Fla. 1st DCA), rev. denied, 604 So.2d 488 (Fla.1992).

      . Section. 90.803 provides for two related exceptions:
      (1) Spontaneous statement. — A spontaneous statement describing or explaining an event or condition made' while the declar-ant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.
      (2) Excited utterance. — A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

        See State v. Jano, 524 So.2d 660 (Fla.1988); Harmon v. State, 854 So.2d 697 (Fla. 5th DCA 2003); State v. Skolar, 692 So.2d 309 (Fla. 5th DCA 1997); G.M. v. State, 530 So.2d 461 (Fla. 5th DCA 1988).


text:
    Modesto ALVAREZ, Appellant, v. SEM-CHI RICE PRODUCTS CORP. and RSKCO., Appellees.
    No. 1D02-3507.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2003.

      Marcos R. Gonzalez and Randall T. Porcher, West Palm Beach; Marjorie Ga-darian Graham, Palm Beach Gardens, for Appellant.
    Kevin R. Clark and Michael A. Edwards, Edwards and Clark, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

Claimant Modesto Alvarez seeks the reversal of the judge of compensation claims’ (“JCC”) denial of his workers compensation benefits arising from an automobile accident. The JCC denied the claim, ruling that “claimant’s accident was not in the course and scope of his employment” because the claimant was merely returning home from work and was not performing a work-related task. The claimant argues that at the time of the accident the claimant was on a special errand that had a business purpose. We agree with the claimant, and therefore reverse.

I. Background

At the time of the accident, the claimant had been employed by Sem-Chi Rice Products Corporation for 17 years. His normal working hours were from 6:00 a.m. until 5:00 p.m. during weekdays and until noon on Saturdays. During the harvest season, he would frequently work on Sundays. He is seventy years old and has a sixth grade education.

On the day of the accident, the claimant arrived at work around 6:00 a.m. and was scheduled to finish working at around 5:00 p.m. The claimant testified that at approximately 2:30 p.m., he received a telephone call from Klaus Sengelmann, the vice president and general manager of Sem-Chi Rice. Mr. Sengelmann instructed the claimant to go to the Senglemann residence in Wellington in order to assemble a computer table for Mrs. Senglemann. The claimant testified that Mr. Senglemann told the claimant to inform his immediate supervisor that Mr. Sengelmann had instructed the claimant to go to the Sengel-mann house. The claimant had to obtain permission to leave the plant from his immediate supervisor. The claimant testified that he informed his supervisor as instructed, and his supervisor testified that the claimant told him he was going to the Sengelmann house at Mr. Sengelmann’s request. The claimant testified that he had been asked to do personal jobs for Mr. Sengelmann while on the clock on multiple occasions.

The claimant testified that on the day of the accident he left the Sem-Chi Rice plant in Belle Glade at 3:15 or 3:20 p.m. When he arrived at the Senglemann home, he and Mrs. Sengelmann opened up a box that contained a computer table. The claimant looked at the manual and instructions for assembly of the table. After reviewing the manual, the claimant concluded that there was not enough time remaining for him to assemble the table. Consequently, the claimant informed Mrs. Sengelmann that it would be better for him to take the table home with him, assemble it and then return it to her the next day. It was his intention to keep the table in his trunk overnight, take it to work the next morning, assemble it at work, and then return it to Mrs. Senglem-ann by 10:00 a.m.

The claimant estimated that he left the Sengelmann home around 4:35 p.m. and was in an automobile accident approximately five minutes later while on his way home. The claimant lost consciousness and was injured in the accident. After the claimant arrived home from the hospital at approximately 11:00 p.m. that night, he asked his son-in-law to take the computer table that was in his car to the plant the next day and deliver it to Carlos Castillo, a plant employee, for assembly and delivery to Mrs. Senglemann by 10:00 a.m. Carlos Castillo confirmed that on the day following the accident someone brought a computer table in a box to his office. Mr. Castillo informed Mr. Senglemann that the box had been sent to him. Mr. Castillo testified that Mr. Sengelmann said that he did not know what box Mr. Castillo was talking about and said it was possibly a table that his wife had given as a gift to the claimant.

When the claimant returned to work sixteen days following the accident, the box containing the computer table was in his office. The claimant asked Mr. Sengel-mann what had happened to Mrs. Sengel-mann’s table because it had not yet been assembled. The claimant testified that Mr. Sengelmann stated that he had no idea what the claimant was talking about. There is disputed testimony over whether claimant was “on the clock” when the accident occurred. Mr. Sengelmann testified that he did not instruct the claimant to go to his house to put a table together for his wife, and contended that the computer table was a gift. The claimant does not own a computer.

The JCC ruled that the factual dispute regarding the reason for Appellant’s visit to the Sengelmann home on the day of the accident was irrelevant:

5. It is immaterial as to which version of events is credible. The caselaw is clear that, whether or not the computer table in his trunk was a gift, if the accident occurred on his way home, the auto accident is not compensable as a work related accident.
6. If the computer table was a gift, then the claimant was not in the course and scope of his employment. However, even if the computer [table] was not a gift and was simply being stored in the claimant’s car, then the accident still occurred outside the course and scope of employment, since the claimant has testified that he was not planning on putting together the table until the following day at work. I have relied on the 1st DCA’s 1981 decision, Viejo Arco Iris, Inc. v. Louaces[Luaces], 395 So.2d 225 (Fla. 1st DCA 1981)....
8.... [T]he computer table is not actually a work-related paraphernalia, but was of a personal nature for the manager of the company himself, having nothing to do with anything related to Sem-Chi itself. Therefore, I find that the computer table does not even arise to the level of “work-related paraphernalia.” In addition, there is no sufficient business purpose for carrying the computer table to be assembled for the manager’s personal residence.

We agree with the JCC that if the computer table was a gift, then the claimant was not in the course and scope of his employment. However, under the facts and circumstances of this case, we hold that if the computer table was not a gift, and Mr. Sengelmann requested the claimant to assemble the table at his personal residence, then the accident was compensable. Accordingly, we reverse.

II. Dual Purpose and Special Errand

“As a general rule, injuries sustained by an employee when going to or coming from his regular place of work are not considered to have arisen out of and in the course of his employment.” George v. Woodville Lumber Co., 382 So.2d 802, 803 (Fla. 1st DCA 1980). This rule “is grounded in the recognition that injuries suffered while going to or coming from work are essentially similar to other injuries suffered off duty away from the employer’s premises and, like those injuries, are usually not work related.” Eady v. Med. Pers. Pool, 377 So.2d 693, 695 (Fla.1979). The principle is commonly known as the “going and coming rule” and is codified in section 440.092(2), Florida Statutes (1999), which provides that an injury suffered while going to or coming from work is not a compensable work related injury “unless the employee was engaged in a special errand or mission for the employer.”

The instant case falls within the dual purpose and special errand exceptions to the going and coming rule. In Tampa Airport Hilton Hotel v. Hawkins, 557 So.2d 953 (Fla. 1st DCA 1990), the claimant was employed as a banquet waitress at the Tampa Airport Hilton Hotel. At the employer’s request, she returned to the employer’s premises to attend a staff meeting called by the employer. Id. at 954. After the meeting ended, while on her direct route home from the meeting, the claimant was involved in an automobile accident. Id. On appeal, this court affirmed the JCC’s findings that the accident was compensable because the purpose of the trip during which the claimant was injured served a business purpose for the employer as well as the personal convenience of the claimant. Id. at 955.

In Spartan Food Systems & Subsidiaries v. Hopkins, 525 So.2d 987 (Fla. 1st DCA 1988), the claimant was employed at a Hardee’s restaurant in Pensacola. On the day of the accident, the claimant received a telephone call from her supervisor asking her to stop at a Hardee’s in Milton to obtain extra beverage cups and bring them with her to work. Id. at 988. The claimant left home thirty-five minutes early in order to complete the errand, and the trip to Milton required her to depart from her usual route to work. The claimant went to Milton as requested by the employer and obtained the cups. After resuming her normal route to work, her vehicle was rear-ended while she was stopped in traffic. Id. Even though the claimant had returned to her usual route to work at the time of the accident, this circumstance did not negate the errand for her employer. This court stated that “[w]hen a trip is made for both a business and personal motive, it is deemed to be an employment activity for workers’ compensation purposes.” Id. at 989; see also Brack v. Glen Johnson, Inc., 418 So.2d 1209, 1211 (Fla. 1st DCA 1982)(holding that the special errand exception applied to a worker who was injured on his way to work after making a ten mile detour at the request of his employer and the accident was therefore compensable).

The instant case is similar to Tampa Airport Hilton Hotel and Hopkins if the table is found not to be a gift. Although at the time of the accident the claimant was going home on the same route that he usually takes, the purpose of the trip during which the claimant was injured served a business purpose for the employer as well as the personal convenience of the claimant. Likewise, although the special errand of picking up the table had been completed and the claimant had returned to his normal route home, the claimant made special arrangements and went out of his way to perform a special errand for his employer.

In reaching her decision, the JCC relied on this Court’s decision in Viejo Arco Iris, Inc. v. Luaces, 395 So.2d 225 (Fla. 1st DCA 1981). In Luaces, a plumber who usually returned home at 4:00 p.m. left work at 3:55 p.m. The employer had requested that the claimant pick up plumbing materials at the supply store which was on his route home. After picking up the materials, the ■ claimant resumed his trip home and was involved in an automobile accident at 4:05 p.m. The special errand exception to the going and coming rule did not apply because the plumbing supply store was directly on the claimant’s route home, the employee was not subject to a sudden call by the employer, and the burden of picking up the materials was minor when viewed in the context of the claimant’s usual duties and his usual route home. Id. at 226.

This court in Hopkins ■ distinguished Luaces on the facts.. Unlike in Hopkins, the employee in Luaces was injured on a regular and frequent journey, was not on a sudden call by the employer, and the burden of picking up the materials was minor when viewed in the context of the employee’s usual route home. Hopkins, 525 So.2d at 989. The claimant in Hopkins, on the other hand, responded to a sudden call that required travel on an unusual route in order to bring the supplies to work, thus increasing the burden. Id.

In the instant case, as in Hopkins, the claimant received a sudden call that required him to leave the plant and travel an unusual route in order to assemble the computer table. This additional burden was not minor. Further, although the claimant testified that he was not planning on assembling the table that night, he intended to assemble the table at work the following morning and deliver it to Mrs. Sengelmann by 10:00 a.m. The burden of the errand included assembling the table and delivering it to Mrs. Sengelmann, which may not be considered complete until the fully-assembled table was delivered to the Sengelmann home the following morning. See Elec. Serv. Clinic v. Barnard, 634 So.2d 707, 710 (Fla. 1st DCA 1994) (holding that employee’s automobile accident on the way home was compensa-ble; the employee was on a special errand requiring the completion of an additional round trip to employer).

The JCC, in the instant case, found that the table was not work-related paraphernalia, but was of a personal nature for the manager of the company, and therefore, the claimant’s act of carrying the computer table did not serve a sufficient business purpose. However, section 440.092(3) Florida Statutes (1999), provides:

An employee who is injured while deviating from the course of employment, including leaving the employer’s premises, is not eligible for benefits unless such deviation is expressly approved by the employer, or unless such deviation or act is in response to an emergency and designed to save life or property.

In the instant case the Appellant testified that he was told by the vice president and general manager of the company to perform the errand, and obtained permission from his immediate supervisor to leave the plant after telling the supervisor what he was going to do. These facts, if proven, would demonstrate that the employer approved the errand, even if it was a deviation from employment.

Accordingly, the JCC was incorrect in denying the compensability of Appellant’s claim as a matter of law and not resolving the factual conflict of whether the claimant received the computer table as a gift or was attempting to assemble the table for Mr. Sengelmann at his direction.

REVERSED and REMANDED for further proceedings consistent with this opinion.

BROWNING, POLSTON and HAWKES, JJ., concur.

      . According to the claimant, Mr.Sengelmann told him to get someone to clock out for him, and another employee agreed to do so. The employee denied that he agreed to do so. The claimant testified that after Mr. Senglemann denied that he had instructed him to assemble the table, the claimant requested a copy of his time card from the cards custodian. The card was not produced immediately. When he received the card, it reflected that he was clocked out at 3:30 p.m.-


text:
    Derrick SHARPE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4408.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, 854 So.2d 659 (Fla.2003).

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


text:
    Linda AUSTIN, Appellant, v. James AUSTIN, Appellee.
    No. 02-5219.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2003.

      William Kemper Jennings, Defuniak Springs, for Appellant.
    Roy Lake, Bonifay, for Appellee.
   PER CURIAM.

The appellant and former wife, Linda Austin, appeals from a final judgment of dissolution of marriage to the extent that it awards the entire interest in their marital home to the appellee and former husband, James Austin. The property was deeded in both of their names. The former husband did not plead special equity and testified at the final hearing that he was not seeking any special equity. Accordingly, we reverse and remand to the trial court with instructions to treat the marital home as a marital asset. See Collins v. Collins, 737 So.2d 1204, 1205 (Fla. 5th DCA 1999)(reversing the trial court’s award of special equity in the marital home because it was not pled); Hu v. Hu, 432 So.2d 1389, 1390-91 (Fla. 2d DCA 1983)(same); Parker v. Parker, 610 So.2d 719, 720 (Fla. 1st DCA 1992)(holding that the husband waived special equity and presented no evidence to overcome the statutory presumption that entireties real estate is marital property regardless of who paid for it).

REVERSED AND REMANDED with instructions.

BROWNING, POLSTON and HAWKES, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF REVENUE, o/b/o Denise L. COOPER, Karen Parikh, Jodi Snyder, Carmen Floyd, Donna F. Judd, Angie Taylor, Gretchen Tobol, Brenda Rosado and Lisa Burgos, Appellant, v. Joseph D. COOPER, Creg C. Clark, James A. Woodby, Eddie J. Floyd, Ronald Seidl, James E. Taylor, Robert L. Tobol, Ervin M. Ruiz and Benjamin Vazquez, Appellees.
    Nos. 4D02-452 to 4D02-4533.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.
    Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for appellant.
    No appearance for appellees.
   PER CURIAM.

The Department of Revenue (“Department”) appeals orders of the trial court dismissing the registration of nine out-of-state child support orders on the ground that the respondents were not served within the time allowed under Florida Rule of Civil Procedure 1.070 and Family Law Rule of Procedure 12.070. In Department of Revenue v. Cuevas, No. 4D02-3710, 862 So.2d 810, 2003 WL 22850526 (Fla. 4th DCA Dec.3, 2003), this court considered the same issue and determined that the notice provision of the Uniform Interstate Family Support Act requires the registering tribunal to provide notice to the respondent and it was error to dismiss for the Department’s failure to serve timely notice.

REVERSED for reinstatement of the registrations.

STONE, KLEIN and HAZOURI, JJ., concur.


text:
    Joseph MATHOS, et al., Appellants, v. The SCHOOL BOARD OF MIAMI-DADE COUNTY, Florida, Appellee.
    No. 3D03-1188.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Slesniek & Casey and James C. Casey, Coral Gables, for appellants.
    Ana I. Segura, for appellee.
    Before SCHWARTZ, C.J., and LEVY and SHEVIN, JJ.
   PER CURIAM.

Because the appellants had no cognizable, substantial rights in the particular positions in which they were employed by the School Board, the Board properly denied their section 120.57, Florida Statutes (2001), request for hearing challenging their reassignments to other executive positions. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); City of Lauderhill v. Rhames, 864 So.2d 432 (Fla. 4th DCA Case no. 4D02-101, opinion filed, October 22, 2003); Muncy v. City of Dallas, 335 F.3d 394 (5th Cir.2003).

Affirmed.


text:
    Lonnie J. STEPHENS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2876.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2003.
    Lonnie J. Stephens, pro se, petitioner.
    Charlie Crist, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Lonnie Stephens seeks a writ of mandamus to compel the trial court to terminate his probation because he has fulfilled his restitution obligation. We deny the petition without prejudice to Stephens filing a motion to terminate his probation in the trial court upon the completion of the in-carcerative portion of his sentence and the commencement of his probation.

BARFIELD, ALLEN and DAVIS, JJ., concur.


author: MONACO, J.

text:
    Jay R. AHRENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3953.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Jay Ahrens appeals from a judgment and sentence concerning his conviction after a jury trial of simple battery. Mr. Ahrens asserts, first, that the trial judge improperly interfered with jury selection. As there was no objection to the actions of the trial judge, and as Mr. Ahrens unconditionally accepted and tendered the jury, he has failed to preserve the error that he alleges. See, e.g., Joiner v. State, 618 So.2d 174 (Fla.1993); Barnette v. State, 768 So.2d 1246 (Fla. 5th DCA 2000); Karp v. State, 698 So.2d 577 (Fla. 3d DCA 1997).

Mr. Ahrens accurately points out, however, that the judgment contains a scrivener’s error in that it lists the battery for which he was convicted as a third degree felony, rather than a first degree misdemeanor. See § 784.03, Fla. Stat. (2002).

Accordingly, we affirm except to the extent that the judgment misidentifies the quality of the offense of which Mr. Ahrens was convicted, and we remand for correction of the scrivener’s error.

AFFIRMED and REMANDED to correct scrivener’s error.

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


text:
    Enrique GABINO and Amparo Gabino, etc., Appellant, v. ORANGE COUNTY, Florida, Appellee.
    No. 5D02-3767.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.

      Irby G. Pugh and Tye W. VanBuren of Pugh & VanBuren, P.A., Orlando, for Appellants.
    Robert J. Jack and Carl H. Peterson, IV of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appel-lee.
   SHARP, W., J.

Enrique and Amparo Gabino, individually and as parents and guardians of Erika Gabino, their daughter, appeal from a final summary judgment in favor of Orange County. They sued Orange County and the Orange County School Board for the severe injuries Erika, then 16 years old, received when she was hit by a car while walking in the street on her way to attend Dr. Phillips High School, in Orange County. We affirm.

The Gabinos argue that Orange County had a duty to provide safe access to its public schools and that it failed that duty by not providing or extending sidewalks to the high school, or providing other safe access. We think the doctrine of sovereign immunity bars recovery in this case against Orange County. Absent a hidden trap or known dangerous condition not readily apparent to a person who could be injured by the condition, a governmental entity does not owe a duty to a person injured by an obvious and open condition, such as in this case, a street where vehicular traffic is expected to travel. See Kaisner v. Kolb, 543 So.2d 732 (Fla.1989); City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); Department of Transportation v. Wallis, 659 So.2d 429 (Fla. 5th DCA 1995), disapproved on other grounds, Department of Educ. v. Roe, 679 So.2d 756 (Fla.1996).

AFFIRMED.

PETERSON and TORPY, JJ., concur.


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant, v. Nicholas William SERAFINE, Appellee.
    No. 5D03-3570.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.
    John Tanner, State Attorney, and Jaime Telfer, Assistant State Attorney, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   GRIFFIN, J.

This is the State’s appeal of the trial court’s order suppressing evidence consisting of urine test results on the authority of State v. Bodden, 27 Fla. L. Weekly D2382, — So.2d — (Fla. 2d DCA Oct.30, 2002), review granted, 853 So.2d 1071 (Fla.2003). We recently decided State v. Pierre, 854 So.2d 231 (Fla. 5th DCA 2003), in which we disagreed with Bodden, reversed the suppression order and certified conflict with Bodden. Following Pierre, we again reverse the appealed order and certify conflict with Bodden.

REVERSED and REMANDED.

SHARP, W., and MONACO, JJ„ concur.

      . Tpii; public case was certified to be one of great ^importance. See Fla. R.App. P. 9.160(e)(2).

      . See also State v. Masker, 859 So.2d 553 (Fla. 5th DCA 2003).


author: PER CURIAM. SHARP, W., J.,

text:
    Miliades PEGUERO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-332.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER and TORPY, JJ., concur.

SHARP, W., J., dissenting, with opinion.

SHARP, W., J.,

dissenting.

This is an Anders case. In my view, appellant has stated a potentially meritorious defense to his conviction and sentence — that he was forced to accept a plea to two cases (02-118 and 02-3804) or proceed to trial at a time when his trial counsel was not prepared because he had just been assigned the second case (02-3804), which the state intended to use at the trial in case number 02-1118. Thus the trial court may have abused its discretion by denying a continuance or the appellant’s motion to withdraw his plea. I would order appellant’s counsel to file a merit brief addressing that issue, and have this case proceed as a non-Anders case.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Freddy CROMER, Appellant, v. Pierce H. MULLALLY, Esq., and Pierce H. Mullally, Esq., P.A., Appellees.
    No. 3D03-1107.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.

      Stabinski & Funt, Miami, and Daniel M. Grissom, for appellant.
    Louis F. Robinson, III (North Palm Beach), for appellees.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Freddy Cromer (“Cromer”) appeals the trial court’s order granting Pierce Mullally and Pierce Mullally, P.A.’s (hereafter collectively referred to as “Mullally”) motion to strike Cromer’s complaint as sham. We reverse.

In October of 1999, Cromer decided to refinance his apartment building. In order to close on the property, he was required to obtain general liability and windstorm insurance. Cromer’s mortgage broker obtained insurance from Essex Insurance Company (“insurance company”) through an agent. The agent delivered a binder that contained general liability coverage to the closing agent, Mullally. At closing, Mullally wrote on the binder that the insurance coverage also included windstorm coverage. Several days later, Cromer’s property was damaged by Hurricane Irene.

Cromer filed a claim with the insurance company. The insurance company denied the claim alleging that it had not issued a policy to Cromer. Cromer filed suit against the insurance company and the agent who procured the policy. The complaint was amended several times and the fourth amended complaint, which is at issue here, asserted claims of negligent misrepresentation against Mullally. Mullally filed a motion for summary judgment and a separate motion to strike the amended complaint as sham pursuant to Florida Rule of Civil Procedure, 1.150.

The trial court conducted a hearing on the motion to strike. Mullally testified at the hearing and admitted that he wrote windstorm coverage on the binder. Mul-lally denied giving the binder to Cromer. The trial court granted the motion to strike the complaint as sham and ruled that since no insurance coverage existed to begin with, Mullally’s representation of non-existent windstorm coverage to Cromer was not causally connected to Cromer’s damages.

The trial court erred in dismissing the pleading as sham. A pleading is only considered a sham when it is inherently false and clearly known to be false at the time the pleading was made. See Menke v. Southland Specialities Carp., 637 So.2d 285 (Fla. 2d DCA 1994). Furthermore, a hearing on a motion to strike a pleading as sham is not for the purpose of trying the issues, but rather serves the purpose of determining whether there are any genuine issues to be tried. See Meadows v. Edwards, 82 So.2d 733 (Fla.1955). The fact that a court may perceive little prospect in the success of an alleged sham proceeding is not a sufficient ground to grant a motion to strike the pleading. See St. John Medical Plans, Inc., v. Physician Corp. of America, 711 So.2d 1329 (Fla. 3d DCA 1998).

Here, the trial court did not determine whether or not there was any falsity to the pleadings. Instead, the court heard testimony as to the merits of the case. This was not proper procedure. See Menke, 637 So.2d at 286. Furthermore, nothing in the record demonstrates that the complaint was clearly and indisputably false. Accordingly, we determine that it was error for the trial court to strike Cromer’s complaint as sham.

Reversed and remanded, with instructions to reinstate Cromer’s complaint.


text:
    Francis A. HERNANDEZ, Appellant, v. FLORIDA ORTHOPEDICS INC., and Florida Unemployment Appeals Commission, Appellee.
    No. 3D03-475.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Silverio & Hall, Naples, and Francis X. Sexton, Jr., for appellant.
    John D. Maher (Tallahassee), for Unemployment Appeals Commission.

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

Francis Hernandez (“Hernandez”) appeals a Florida Unemployment Appeals Commission’s affirmance of an appeals referee’s decision ’denying Hernandez unemployment benefits. The basis for the denial of benefits was “misconduct” connected to work. See § 443.036(29), Fla. Stat. (2002). Accepting the findings of fact made by the appeals referee, we conclude although Hernandez’s tardiness in reporting to work on several occasions was “more than sufficient cause to justify his termination from his job, it clearly does not rise to the level of ‘misconduct’ necessary so as to deprive him of unemployment benefits.” See Santiago v. Home Depot USA, Inc., 716 So.2d 350 (Fla. 3d DCA 1998).

Accordingly, we reverse the order below.


author: PER CURIAM. COPE, J.

text:
    Martin MARTIN a/k/a Martin Alejandro Martin, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-979.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Philip L. Reizenstein, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Affirmed.

COPE, J.

(concurring in part, dissenting in part).

Defendant-appellant Martin is entitled to an evidentiary hearing on his claim that, but for the affirmative misadvice of trial counsel regarding expungement, he would not have entered into the plea agreement. See Rodriguez v. State, 824 So.2d 328 (Fla. 3d DCA 2002). At such a hearing it would, of course, be the burden of the defendant to persuade the trial court that he actually would have turned down this favorable plea bargain if he had been given the correct information regarding ex-pungement. The question whether the defendant has shown sufficient good cause to excuse the two-year time bar presents a factual question which should also be resolved by the trial court.

I agree in affirming on the claim of newly discovered evidence. The former wife’s affidavit does not qualify as being newly discovered. There is nothing in the affidavit which undercuts the personal observations of the police officer recorded in the arrest report, nor does the wife’s affidavit address the photographic evidence referred to in the arrest report.


text:
    Chauncey WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3017.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his rule 3.850 postconviction motion, which alleged two claims for relief. We affirm the summary denial of the first claim, but reverse as to the second. The appellant alleges counsel was ineffective for misadvising him that the voluntary intoxication defense was not available to him because it had been abolished by the Legislature. The appellant’s offense was committed September 21, 1999, and the voluntary intoxication defense was abolished as of October 1, 1999. See § 775.051, Fla. Stat. (1999). Because this claim is facially sufficient, and not refuted by the record, we reverse and remand for the trial court to attach record portions in support of the summary denial or conduct an evidentiary hearing. See Fla. R.App. P. 9.141(2)(A) (2003).

REVERSED IN PART, REMANDED IN PART, AND AFFIRMED IN PART.

KAHN, BENTON AND VAN NORTWICK, JJ., concur.


text:
    Henry DICKEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1663.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.
    Rehearing Denied Feb. 19, 2004.

      Kathleen D. Kirwin, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Hall v. State, 853 So.2d 546 (Fla. 1st DCA 2003).

WOLF, C.J., ALLEN and DAVIS, JJ., Concur.


text:
    Adrian ANDREW, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4232.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Adrian Andrew was improperly convicted of both resisting an officer without violence and resisting an officer with violence. The charges of resisting Officer Weiland with and without violence may only be seen as a continuous resistance to Officer Weiland’s ongoing attempt to remove appellant from his car and arrest him. Therefore, appellant may only be convicted of resisting with violence. See e.g. Wallace v. State, 724 So.2d 1176 (Fla.1998); Jones v. State, 764 So.2d 659 (Fla. 1st DCA 2000). We VACATE the conviction and sentence for resisting without violence.

KAHN, WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Christopher MANNING, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3551.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant in this direct criminal appeal challenges his conviction for burglary of a dwelling with an assault or battery therein, arguing that the trial court committed fundamental error by incorrectly instructing the jury as to the applicable statutory definition of burglary. Concluding that the trial court provided the jury an incorrect definition of burglary, and concluding further that the incorrect instruction related to disputed issues of fact, we reverse the appellant’s conviction.

Chapter 2001-58, Laws of Florida, amended section 810.02, Florida Statutes, to provide a new definition of burglary for offenses committed after July 1, 2001. Although the date of the appellant’s alleged offense was November 18, 2001, the trial court instructed the jury in accordance with the definition applicable to offenses committed on or before July 1, 2001. The appellant did not offer any objection to the incorrect instruction or otherwise preserve the argument he now makes on appeal. He nevertheless relies upon Reed v. State, 837 So.2d 366 (Fla.2002), in arguing that the error was fundamental and may therefore be presented for the first time on appeal. Like State v.Delva, 575 So.2d 643 (Fla.1991), Reed stands for the proposition that the giving of an inaccurate instruction as to a disputed element of a crime is fundamental error.

Because the jury in the present case could not have determined whether the appellant’s acts amounted to burglary without resolving disputed issues of fact, the elements contained within the definition of burglary were disputed elements of the charged offense. The incorrect instruction as to these elements therefore amounted to fundamental error.

The appellant’s conviction for burglary of a dwelling with an assault or battery therein is accordingly reversed and this case is remanded.

ALLEN, DAVIS and BENTON, JJ., concur.

       The appellant argues that section 810.02(l)(b)2 applies only in a situation where there is a licensed or invited entry. Our decision in this case should not be interpreted as necessarily approving this reading of the statute, as opposed to a reading which would make section 810.02(l)(b)2 applicable regardless of whether a licensed or invited entry has occurred.


text:
    Terry SYLVESTER, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-2846.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.
    Megan Wall of Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant.
    Roger L.D. Williams of Department of Children and Families, Jacksonville, for Appellee.
   PER CURIAM.

The Department of Children and Families hearing officer erred in ruling that she did not have jurisdiction to hear this case. The controlling regulation states: “No further administrative appeal procedure exists after an individual waives his/her right to an administrative disqualification hearing and a disqualification penalty has been imposed.” 7 C.F.R. § 273.16(f)(2)ii (2002). Because a disqualification penalty has not been imposed in this case, the Appellant did not lose her right to an administrative appeal and the hearing officer has jurisdiction to determine the limited issue of whether the waiver of disqualification hearing was properly obtained. See Bourne v. Dep’t of Social Welfare, 156 Vt. 219, 591 A.2d 79, 80-81 (1991).

Therefore, we REVERSE and REMAND for further proceedings.

KAHN, WEBSTER and VAN NORTWICK, JJ., Concur.


text:
    Steven OCCHIOGROSSO, Appellant, v. AMERICAN LUMBER & SUPPLY and Sentry Claims Service, Appellees.
    No. 1D03-4554.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.
    Brian P. Vassallo of Vassallo & Bilotta, Palm Springs, for Appellant.
    Jennifer C. Allen, Palm Beach Gardens, for Appellees.
   PER CURIAM.

Dismissed. Valerio v. Lee Memorial Health Systems, 858 So.2d 1227 (Fla. 1st DCA 2003).

BOOTH, BENTON and LEWIS, JJ., concur.


author: KLEIN, J.

text:
    STATE of Florida, Petitioner, v. Yasmin SEALY-DOE, Respondent.
    No. 4D03-4526.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Charles J. Crist, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for petitioner.
    No response required for respondent.
   KLEIN, J.

The state seeks a writ of certiorari to quash a pretrial order indicating that the trial court would admit a sworn written statement given to the police by a witness who could not be located in order to testify at trial. We have the authority to grant such a writ where the state establishes a violation of a clearly established principle of law, resulting in a miscarriage of justice, if the pretrial ruling substantially impairs the state’s ability to bring its case. State v. Pettis, 520 So.2d 250 (Fla.1988).

In this case the witness had said in her statement that the alleged victim, Sidney Fértil, had told her he was the one who had committed the crime, hoping to frame the defendant and eliminate the defendant as a witness against him in a criminal prosecution. Fértil was prepared to testify at the hearing on the motion in limine that he had not made the statement to the missing witness. The state was also prepared to attack the reliability of the statement with the testimony of the detective to whom the statement was given.

The trial court decided that it would admit the sworn statement of the missing witness, based on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (due process can, under some circumstances, require a relaxation of the rules of evidence in order to admit evidence vital to a criminal defendant’s defense). The trial court determined that the statement would be admissible over the state’s hearsay objection, finding that the statement was critical to the defense, and taken under circumstances that would support its reliability. The state would be permitted to attack the statement’s reliability at trial.

We need not address whether this ruling violates a clearly established principle of law resulting in a miscarriage of justice, because we conclude that the ruling does not, as Pettis requires, substantially impair the state’s ability to bring its case. Pettis, 520 So.2d at 253. We therefore dismiss for lack of certiorari jurisdiction.

GROSS and TAYLOR, JJ., concur.


text:
    Charles E. LONG, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3174.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.

      Appellant, pro se.
    Charles J. Crist, Jr., Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), which he timely moved to voluntarily dismiss. Because the appellant filed a motion for voluntary dismissal before the trial court ruled on the postconviction motion, the voluntary dismissal should have been granted so long as the state would suffer no prejudice. See Hansen v. State, 816 So.2d 808, 809 (Fla. 1st DCA 2002). The trial court erred in not ruling first on the appellant’s motion for voluntary dismissal before denying the postconviction motion. See generally Clark v. State, 491 So.2d 545, 546 (Fla.1986). We reverse and remand for the trial court to rule on the appellant’s motion to voluntarily dismiss his postcon-viction motion.

REVERSED AND REMANDED.

ERVIN, DAVIS and BROWNING, JJ., concur.


text:
    Melvin CARSWELL, Jr., Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D03-1738.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.
    Melvin Carswell, Jr., pro se, appellant.
    Kim M. Fluharty, General Counsel, and Mark J. Hiers, Assistant General Counsel, for appellee.
   PER CURIAM.

Appellant seeks review of the circuit court’s order dismissing his petition for writ of habeas corpus, in which he challenged the Florida Parole Commission’s revocation of his conditional release supervision. The Commission based the revocation on appellant’s violation of condition 2(c) and condition 7. Before the circuit court, appellant challenged the sufficiency of the evidence supporting the violations. Without issuing an order to show cause, the circuit court found that appellant had admitted violating condition 2(c) and therefore, regardless of the validity of the violation of condition 7, revocation of appellant’s conditional release supervision was proper. We find that the record before the circuit court did not reveal whether the Commission would have revoked appellant’s conditional release supervision solely based on a violation of condition 2(c). Therefore, the order dismissing the petition for writ of habeas corpus is hereby quashed, and this proceeding is remanded to the circuit court for the issuance of an order to show cause directing the filing of a response by the Commission. If the Commission fails to show that it would have revoked appellant’s conditional release supervision solely on a violation of condition 2(c), then, the circuit court shall remand to the Commission for further proceedings. See Lee v. Florida Parole Comm’n, 730 So.2d 827 (Fla. 1st DCA 1999).

ERVIN, BOOTH and KAHN, JJ., concur.


author: POLEN, J.

text:
    STATE of Florida, Appellant, v. Seth SOLOMON, Appellee.
    No. 4D02-4689.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellant.
    Kevin J. Kulik, Fort Lauderdale, for appellee. 1
   POLEN, J.

The State of Florida appeals a trial court order granting a motion to suppress evidence. For the reasons stated below, we remand to the trial court for further consideration.

Detective Gary Blocker submitted a sworn affidavit and application to authorize a search of the home of the Appellee, Seth Solomon, based on a “controlled buy.” The warrant was ultimately issued, and upon searching Solomon’s residence, Blocker discovered 8.6 grams of crystal methamphetamine, five M.D.M.A. pills, 5.1 grams of cannabis, four glass pipes, a scale, and two “items that are commonly used to conceal contraband.” Solomon was arrested and subsequently charged with possession of methamphetamine with intent to deliver/sell.

Upon the hearing on Solomon’s motion to suppress, Solomon testified that the day the warrant was executed there were other people in his home, and they had left about two hours before the warrant was executed. He described his home as having an eight-foot privacy wall around the perimeter with a barred gate. The bars were covered with fabric so that nobody could see through the gate. Solomon also noted that inside the gate there is a large area of landscaping stretching several hundred feet. Detective Blocker testified that he was never inside the gate, but was positioned outside the gate on foot, and was unable to look over the gate.

The trial court held the search warrant lacked probable cause because there were no underlying facts in the warrant application to explain why the officers originally went to Solomon’s house for the controlled buy, notwithstanding the fact that the confidential informant was reliable. The trial court noted there was no factual basis to establish a reason for targeting Solomon’s house, such as the confidential informant having been to the house to buy drugs previously, or the officer’s prior surveillance.

We hold that when a confidential informant obtains drugs and is told to come back anytime for more, a controlled buy alone provides probable cause to search, even without any other predicate facts. In State v. Gieseke, 328 So.2d 16,17 (Fla.1976), an officer, after searching the confidential informant, observed him entering a building and leaving 15 minutes later with a baggie of marijuana in his possession. The Supreme Court found that, “the fact that Affiant personally supervised the controlled buy resulting in the purchase of contraband from the described premises was sufficient probable cause to justify the warrant.” Id. The Supreme Court held that the controlled buy alone was a sufficient factual premise from which the court could conclude that additional contraband remained on the premises. Id. at 18. This court, in State v. Lewis, 336 So.2d 395, 396 (Fla. 4th DCA 1976), followed the reasoning in Gieseke and upheld a search warrant predicated upon the personal observations of the affi-ant and a confidential informant in a “controlled buy.”

While a controlled buy alone may be sufficient to establish probable cause for a warrant, the trial court must determine whether the nature of the “controlled buy” indicates that the informant was sufficiently supervised and monitored to indicate probable reliability of the information obtained by the informant. See McCall v. State, 684 So.2d 260, 262 (Fla. 4th DCA 1996). Blocker’s testimony at the hearing as to his ability to see the front of Solomon’s home, in conflict with his prior statements in the search warrant affidavit, suggests the Confidential Informant may not have been adequately supervised. Blocker admitted that he had not been inside the gate surrounding Solomon’s residence and that he was unable to see over it, and Solomon’s description of the landscaping suggests Blocker may have had an obstructed view. Consequently, we remand to the trial court for further consideration of whether the controlled buy was sufficiently reliable.

REVERSED and REMANDED.

GROSS, J., and OFTEDAL, RICHARD L., Associate Judge, concur.


text:
    Anthony Albert FERRARI, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4426.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Richard L. Rosenbaum of Law Offices of Richard L. Rosenbaum, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Anthony Albert Ferrari appeals the summary denial of his rule 3.850 motion for post-conviction relief. We affirm without discussion as to the appellant’s second ground for relief, but reverse the summary denial as to the first ground. See Jones v. State, 782 So.2d 552 (Fla. 5th DCA 2001). The lower court’s remark to the appellant’s aunt, stating the appellant would only serve seventy-five percent of his sentence, distinguishes the instant case from Evans v. State, 763 So.2d 1109 (Fla. 4th DCA 1999), rev. denied, 767 So.2d 456 (Fla.2000).

The order of summary denial is therefore reversed as to the first ground only and remanded for either an evidentiary hearing or the trial court’s attachment of record portions conclusively refuting the appellant’s first ground for relief.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    Peter CAMPUSANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1268.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The state concedes error as to Appellant’s conviction on count II of “conspiracy to attempt to traffic in cocaine.” Such is not a criminal offense in Florida. Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976).

Therefore, we vacate the judgment and sentence and remand for modification accordingly and re-sentencing.

STONE, KLEIN, and TAYLOR, JJ., concur.