author: VILLANTI, Judge.

text:
    Wendy Leader IACONETTI, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4214.
    District Court of Appeal of Florida, Second District.
    April 2, 2004.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Wendy Leader Iaconetti challenges the trial court’s orders denying her motion to withdraw her plea and denying her motion to correct sentencing error which alleged that the restitution order was improperly entered. Because the trial court failed to hold an evidentiary hearing on the motion to withdraw and failed to appoint conflict-free counsel to represent Iaconetti at such a hearing, we reverse and remand for a new hearing. In addition, because the trial court failed to hold a hearing on the issue of restitution, we reverse the restitution order and remand for further proceedings on that issue as well.

On November 1, 2000, in case number 00-13804, the State charged Iaconetti with four counts of fraudulent use of a credit card and one count of grand theft. Iacon-etti entered a negotiated plea in exchange for a sentence of thirty-six months’ probation, $13,362.63 in restitution, and $261 in court costs. In August 2002, the Department of Corrections filed an affidavit of violation of probation, which alleged numerous violations of several conditions of probation. In addition, the State filed a new information against Iaconetti in case number 02-9172, charging her with six counts of third-degree grand theft, two counts of first-degree grand theft, and eight counts of uttering a forged instrument.

At a change of plea hearing on August 27, 2002, Iaconetti admitted the violations of probation in case number 00-13804 and entered a best interest guilty plea in case number 02-9172. During the plea colloquy, Iaconetti stated that she understood she was admitting the violations of probation and pleading as charged to the new charges. Iaconetti said she understood she had a right to a trial and acknowledged giving up any defenses and the right to call witnesses. She told the trial court that she was not under the influence of drugs or alcohol that affected her ability to understand the proceedings in court. She acknowledged that she had signed the waiver of rights form and told the court that she was entering the admissions and plea freely and voluntarily. The trial court accepted the plea and admission and adjudicated Iaconetti guilty.

When the trial court moved on to sentencing, the court remarked, “She’s being sentenced to the bottom of the guidelines?” Defense counsel then responded that it was an open plea. Looking at the plea form, the trial court expressed concern that defense counsel had indicated a negotiated sentence of thirteen months on the plea form when, in fact, there was none. The plea form signed by Iaconetti has an “X” indicating a negotiated sentence of thirteen months in prison, but'this “X” is crossed out and another “X” indicates that Iaconetti is entering an open plea. Nothing on the plea form indicates when this alteration was made or that it was made with Iaconetti’s knowledge. Defense counsel told the court that Iaconetti intended to enter an open plea, and he apologized for misleading the court. The trial court then asked Iaconetti whether she understood that there were no plea negotiations in this case. Iaconetti replied that she did. The trial court made no further efforts to determine whether Iaconetti understood the plea form or the trial court’s sentencing options.

In mitigation as to the sentence, defense counsel argued that Iaconetti had a history of depression and a bad drug habit. According to defense counsel, Iaconetti’s addiction caused her to take checks belonging to her employer and cash them to purchase drugs. The trial court interrupted and pointed out that the information alleged that Iaconetti bought tickets for a dog show with the stolen funds, not drugs. Defense counsel then said most of the money was for drugs. Iaconetti then interrupted defense counsel and specifically denied that she had used her employer’s credit card to buy tickets to a dog show in New York. Following this discussion, the trial court sentenced Iaconetti to thirty-six months in prison on the new charges and a concurrent thirty-six months on the violations of probation.

After the sentencing was concluded but before Iaconetti left the courtroom, the case was recalled. Defense counsel told the court that he had been speaking with Iaconetti and she was insisting that she never purchased plane tickets other than those for her employer. Defense counsel said that Iaconetti also denied buying admission tickets to a dog show. The court stated that the information asserted otherwise. Iaconetti then asked the court to call her employer and one of the secretaries could testify that the airline tickets to Miami were bought for the firm. The trial court refused to call Iaconetti’s employer and stated that the sentence would stand.

The case was again passed and again recalled. Defense counsel then stated Ia-conetti wanted to withdraw her pleas. According to defense counsel, Iaconetti was asserting that defense counsel had not fully explained to her the correlation between the new offenses and the violation of probation and that she felt that he had led her to believe she would get a bottom-of-the-guidelines sentence. Defense counsel then stated, “And I may have given her that impression.” The trial court denied the oral motion to withdraw the plea but stated that counsel could file an appropriate written motion to withdraw.

On September 5, 2002, Iaconetti filed a motion through counsel entitled “Defendant’s Pro Se Motion to Withdraw Plea.” Iaconetti sought to withdraw her plea on the grounds that it was not knowingly and voluntarily entered. In addition, the motion alleged that the trial court had not complied with Florida Rule of Criminal Procedure 3.172 by making sure that Ia-conetti understood all of the rights she was giving up by entering the plea.

On September 9, 2002, the trial court held a hearing on the motion to withdraw. The trial court announced that the motion to withdraw was filed pro se and asked if Iaconetti wanted to add anything to the motion. Iaconetti replied she had not even seen the motion and had not signed it. The trial court passed the case so Iaconetti could read the motion. When the case was recalled, the trial court stated, “This is a pro se motion, correct? She’s not represented by the Public Defender’s Office.” Iaconetti’s trial counsel, who happened to be in the courtroom, confirmed that she was not represented for this motion. The trial court then asked Iaconetti if she wanted to add anything to the motion. Iaconetti replied:

Yes, Your Honor, I would like to. On the day that I was here before you, which was August 27th and not 28th that it states in the motion, I was led to believe that I was signing a plea agreement for one year and a day. There was no words ever said to me other than a year and a day.

Defense counsel, who stated on the record that he was there only as a “friend of the Court,” then explained that Iaconetti told him that she would never have pleaded guilty to the new charges because she was not guilty and that the plea was not knowingly entered because he had not explained certain things to her about her sentence. Neither Iaconetti nor defense counsel was sworn during this discussion. The State then argued that the court went through a full colloquy with Iaconetti at the plea hearing and that she was now contradicting herself as to the facts. The trial court denied the motion to withdraw the plea.

Subsequently, on September 23, 2002, the trial court entered an order requiring Iaconetti to pay restitution in the amount of $2087.67 in case number 02-9172. Ia-conetti then filed a motion to correct sentencing error, asserting that the trial court imposed restitution in violation of the plea agreement and without a hearing. The trial court denied the motion, stating that because Iaconetti had entered an open plea to the charges, the restitution order did not violate the plea agreement. This appeal followed.

MOTION TO WITHDRAW PLEA

Iaconetti filed her motion to withdraw her plea pursuant to Florida Rule of Criminal Procedure 3.170(i), which allows a defendant who has pleaded guilty or no contest to withdraw the plea on certain specified grounds. When such a motion is filed after sentencing, the defendant bears the burden of proving that “a manifest injustice has occurred.” Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003) (quoting LeDuc v. State, 415 So.2d 721, 722 (Fla.1982)). Misrepresentations or mistaken advice by counsel concerning the length of the defendant’s sentence can constitute such a “manifest injustice” and may be a basis for allowing a defendant to withdraw his or her plea. State v. Leroux, 689 So.2d 235, 236 (Fla.1996); Daniel v. State, 865 So.2d 661 (Fla. 2d DCA 2004); Snodgrass, 837 So.2d at 508.

Because the defendant bears the burden of proof, when a defendant files a facially sufficient motion to withdraw a plea, the trial court must either afford the defendant an evidentiary hearing or accept the defendant’s allegations in the motion as true except to the extent that they are conclusively refuted by the record. Daniel, 865 So.2d at 661; Snodgrass, 837 So.2d at 508. If the trial court decides to hold an evidentiary hearing, it must appoint conflict-free counsel to represent the defendant because such a hearing constitutes a “critical stage” of the proceedings. Daniel, 865 So.2d at 661; Hampton v. State, 848 So.2d 405, 405 (Fla. 2d DCA 2003).

Here, Iaconetti alleged that she had been misled by her attorney concerning the length of her sentence. She contended that her attorney had told her that she would be sentenced to thirteen months in prison, which was the minimum guidelines sentence. The plea form provides at least some record support for this assertion. Because Iaconetti’s motion was facially sufficient, the trial court was required to either hold an evidentiary hearing after appointing conflict-free counsel or accept Iaconetti’s allegations as true unless conclusively refuted by the record. However, the trial court did neither.

First, while the trial court did hold a hearing on Iaconetti’s motion, it did not hold an evidentiary hearing. The trial court asked both Iaconetti and her trial counsel questions during the hearing; however, neither were sworn as witnesses. Thus, no “evidence” was taken at the hearing.

Second, the trial court failed to appoint conflict-free counsel to represent Ia-conetti at this hearing. It was clear at the sentencing hearing that Iaconetti had a conflict with her trial counsel. She asserted that he had misled her concerning the length of the sentence that would be imposed. Trial counsel specifically told the court that he might “have given her that impression” concerning her sentence, but he denied that he had actually misled her and indicated that he had told her that she was pleading open to the court after no negotiations with the State. Thus, there was a factual dispute between Iaconetti and her counsel concerning what had occurred during a private, off-the-record consultation. In this situation, Iaconetti was entitled to the appointment of conflict-free counsel, see Padgett v. State, 743 So.2d 70, 74 (Fla. 4th DCA 1999), and it was per se reversible error for the trial court to hold a hearing on Iaconetti’s motion without such counsel, Hampton, 848 So.2d at 405.

Third, contrary to the State’s assertions, the record does not conclusively refute Iaconetti’s allegations that she was misled concerning the length of the sentence that would be imposed. Before accepting Ia-conetti’s plea, the trial court did not question her concerning whether she understood the maximum sentences that could be imposed on the violation of probation. The trial court did not ask whether Iacon-etti had been promised anything concerning the sentence she was to receive. It is clear from the transcript of the hearing that the trial court itself was confused by the plea form. However, the trial court’s only effort to ensure that Iaconetti was not likewise confused was to ask her whether she understood that there were “no plea negotiations.” This question was insufficient to determine whether Iaconetti understood that the sentence was entirely in the hands of the court given the representations by her attorney. Cf. Peloquin v. State, 858 So.2d 1213, 1214 (Fla. 4th DCA 2003) (holding that in the absence of any evidence that the court specifically inquired of the defendant whether his attorney had made any representations or promises concerning the length of the sentence, the plea colloquy was insufficient to conclusively refute the defendant’s claim that his attorney had misled him as to the length of the sentence). Thus, the plea form and the plea colloquy were insufficient to conclusively refute Iaconetti’s allegations. Accordingly, we remand for an evidentiary hearing on Iaconetti’s motion to withdraw her plea and the appointment of conflict-free counsel for that hearing.

RESTITUTION ORDER

Iaconetti also contends that the trial court erred in denying her motion to correct a sentencing error because the restitution order was entered without a hearing and without any evidence being presented concerning the proper amount of restitution. We agree.

Section 775.089(7), Florida Statutes (2002), requires the trial court to hold a hearing before restitution is imposed to determine the amount of restitution. See also Exilorme v. State, 857 So.2d 339, 340 (Fla. 2d DCA 2003); Allen v. State, 718 So.2d 1264, 1265 (Fla. 2d DCA 1998). The defendant is entitled to notice of this hearing and an opportunity to be heard. Trice v. State, 655 So.2d 1270, 1271 (Fla. 2d DCA 1995). It is reversible error to impose restitution without notice or hearing. Exilorme, 857 So.2d at 340. It is also reversible error to impose restitution in the absence of any evidence as to the amount of restitution properly owed. S.A.S. v. State, 820 So.2d 449, 450 (Fla. 2d DCA 2002); Massie v. State, 635 So.2d 110, 111 (Fla. 2d DCA 1994).

In this case, there is absolutely nothing in the record to show that Iaconetti was provided with either notice or an opportunity to be heard before the trial court imposed restitution in case number 02-9172. While Iaconetti had agreed to a specific award of restitution in her original plea in case number 00-13804, she made no such agreement in case number 02-9172. Therefore, Iaconetti was entitled to notice and a hearing on the propriety of an award of restitution in case number 02-9172 and the amount of such an award. The trial court’s failure to afford such a hearing is reversible error.

Because the trial court failed to hold any-hearing at all on the issue of restitution, the trial court erred in denying Iaconetti’s motion to correct sentencing error. Therefore, we reverse the order imposing restitution. On remand, if Iaconetti’s motion to withdraw her plea is denied, the trial court must hold a restitution hearing after proper notice at which Iaconetti must be given the opportunity to be heard. Further, the State must offer evidence of the proper amount of restitution; the allegations contained in the information are insufficient to support such an award.

Reversed and remanded for further proceedings.

WHATLEY and COVINGTON, JJ„ concur.


source: Caselaw Access Project

license: Public Domain

text:
    Phillip ENNIS, Appellant, v. Jerry REGIER, Secretary, Department of Children and Family Services; and Gregory Venz, Supervisor, Sexually Violent Predator Unit, Appellees.
    Nos. 2D03-877, 2D03-887.
    District Court of Appeal of Florida, Second District.
    April 2, 2004.

      Phillip Ennis, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Janet A. McDonald, Assistant Attorney General, Tampa, for Ap-pellees.
   VILLANTI, Judge.

Phillip Ennis appeals from the dismissal of his two petitions for habeas corpus, contending that the trial court erred in dismissing the petitions and should have considered them on the merits. We affirm in part and reverse in part.

In summer 2000, Ennis was serving terms of imprisonment for sexual battery, attempted sexual battery, burglary, kid-naping, false imprisonment, and lewd and lascivious assault on a minor. He was due to be released on October 3, 2000; however, on October 2, 2000, the State filed a petition seeking to have Ennis civilly committed as a sexually violent predator pursuant to section 394.914, Florida Statutes (2000). Thus, rather than being released from prison, Ennis was transferred to the custody of the Department of Children and Family Services to be detained in accordance with the provisions of the Jimmy Ryce Act, sections 394.910-.930, Florida Statutes (2000).

While being detained, Ennis filed an emergency petition for writ of habeas corpus in which he contended that his continued detention was illegal because the expert’s reports attached to the State’s petition were inaccurate and legally insufficient and because the State had failed to comply with various time standards set forth in section 394.9135, Florida Statutes (2000). The trial court dismissed this petition based on Ennis’s failure to exhaust administrative remedies and based on its conclusion that Ennis could not seek ha-beas relief under the Ryce Act on these grounds. Ennis appealed the dismissal of this petition in case number 2D03-877.

Ennis later filed a second emergency petition for writ of habeas corpus contending that his continued detention was unconstitutional as a violation of the Ex Post Facto clause and double jeopardy. The trial court dismissed this petition as well in an order identical to that entered on the previous petition. Ennis appealed the dismissal of this second petition in case number 2D03-887. This court consolidated the cases for purposes of this appeal.

In case number 2D03-887, we affirm the dismissal of the petition. We recognize that a writ of habeas corpus is the proper vehicle by which to challenge the constitutionality of a statute under which the person is charged. See Murray v. Regier, 872 So.2d 217, 222-23, 2002 WL 31728885 (Fla. Dec. 5, 2002); Sandstrom v. Leader, 370 So.2d 3, 5 (Fla.1979). However, it is clear that Ennis is not entitled to relief on these grounds because his arguments have already been rejected by the United States Supreme Court and the Florida Supreme Court. Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); Westerheide v. State, 831 So.2d 93 (Fla.2002). Because there is clearly no merit to Ennis’s petition, we affirm. See Murray, 872 So.2d at 223-24 (noting that although the Fourth District should have considered the defendant’s ha-beas petition on the merits, the court would not remand because it was clear that the defendant was not entitled to relief based on Hendricks).

In case number 2D03-877, we affirm the dismissal of the petition in part and reverse in part. Ennis’s contention that the expert’s reports were not legally sufficient to support his detention is not a proper basis for habeas relief. Accordingly, we affirm the dismissal of the petition on that ground. However, Ennis’s contention that the State did not comply with the time requirements of the Ryce Act does raise an issue that is properly the subject of a habeas petition. See Murray, 872 So.2d at 223 (noting that if the petitioner is contending that he was denied due process because the State did not comply with the statutory requirements, he may be entitled to habeas relief); Graham v. State, 826 So.2d 361 (Fla. 2d DCA 2002) (granting habeas relief because the respondent was being detained without a judicial finding of probable cause); Melvin v. State, 804 So.2d 460 (Fla. 2d DCA 2001) (granting habeas relief when the State had failed to provide sworn support for the commitment petition); Johnson v. Dep’t of Children & Family Servs., 747 So.2d 402, 403 (Fla. 4th DCA 1999) (holding that habeas relief would be proper if the State failed to comply with the statutory requirement that all members of the multidisciplinary team sign the report supporting the commitment petition); Valdez v. Moore, 745 So.2d 1009 (Fla. 4th DCA 1999) (same). Therefore, the trial court should have considered this portion of Ennis’s petition on the merits.

That being said, however, it is clear from the petition that Ennis is not entitled to complete relief. The State filed its petition seeking Ennis’s civil commitment before his release from prison. The time requirements that Ennis alleges the State failed to meet apply only to those cases in which the petition is not filed before the respondent’s release from custody. See § 394.9135, Fla. Stat. (2002). Because these provisions clearly do not apply to Ennis, he is not entitled to relief on this basis, and we affirm the dismissal on these grounds.

However, Ennis also asserts that he was not brought to trial within thirty days as required by section 394.916(1). The supreme court has held that while the thirty-day period is not jurisdictional, it is mandatory. State v. Goode, 830 So.2d 817 (Fla.2002). Thus, when a respondent is not brought to trial within that time frame, he is entitled to have the petition against him dismissed and is entitled to be released from confinement. Id.; Kinder v. State, 779 So.2d 512 (Fla. 2d DCA 2000). Thus, if in fact Ennis was not brought to trial within thirty days and if the State did not properly seek a continuance, Ennis could be entitled to immediate release. Therefore, on this issue alone, the trial court erred in dismissing Ennis’s petition. Accordingly, we reverse and remand for the trial court to consider this sole issue on the merits.

Affirmed in part; reversed in part.

WHATLEY and COVINGTON, JJ., concur.


author: ERVIN, J.

text:
    Angie MORRIS, Appellant, v. DOLLAR TREE STORE and Specialty Risk Services, Appellees.
    No. 1D03-0336.
    District Court of Appeal of Florida, First District.
    April 6, 2004.
    T. Rhett Smith and Teresa E. Liles of Smith & Janes, P.A., Pensacola, for Appellant.

      Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellees.
   ERVIN, J.

This is a workers’ compensation appeal challenging as unreasonable an order awarding attorney’s fees to claimant, Angie Morris. We agree that the fee awarded is unreasonable and reverse and remand with directions.

Appellant first contends the judge of compensation claims (JCC) erred in denying her reimbursement for attorney’s time expended before the filing of a petition for benefits. In regard to the reasonableness of the fees that should be allowed, claimant’s expert, Douglas F. Miller, testified that counsel reasonably expended between 25 and 30 hours, which included the time involved before the filing of the petition for benefits. The JCC awarded a total fee of $4,380.00, based upon 25 attorney-hours exerted, multiplied by $168.00 per hour, yielding a sum of $4,200.00, to which he added $180.00 for paralegal services. The JCC refused, however, to include within the fee assessed the lawyer’s pre-petition time, concluding that the plain language of section 440.192(7), Florida Statutes (2001), precluded the consideration of same. Because the JCC’s interpretation is one of law, our review standard is de novo.

Section 440.192(7) states:

Notwithstanding the provisions of s. 440.34, a judge of compensation claims may not award attorney’s fees payable by the carrier for services expended or costs incurred prior to the filing of a petition that does not meet the requirements of this section.

We find it very difficult to conclude that the above language clearly and unambiguously bars compensation for any attorney time expended before a petition is filed, and particularly so in view of the qualification therein specifically linking the preclusion of fees to a petition that fails to satisfy the statute’s requirements. Under the circumstances, the provisions of subsection (7) obviously cannot be considered in isolation from other pertinent statutory specifications, namely, those in section 440.34, relating to the factors to be considered in awarding claimant’s attorney fees, and those in section 440.192(2), setting out the requisites of a petition for benefits.

Because of subsection (7)’s reference to other statutes, we deem it necessary to apply the in pari materia canon of statutory construction, which recognizes that statutes will be considered together when “two different statutory provisions deal with the same specific subject or with subjects so connected that the meaning of the one informs the other.” See Brown v. State, 848 So.2d 361, 364 (Fla. 4th DCA 2003). In our judgment, subsection (7) is so interconnected with the subsection (2) criteria that the meaning of the former cannot be ascertained without reference to the latter. Section 440.192(2) clearly states that a petition shall be dismissed if it fails to comply with its filing requirements. This court, moreover, in construing the provisions of the two subsections in pari mate-ria, has concluded that no attorney fee can be awarded to claimant’s counsel for time expended before the filing of a petition that is later dismissed on the ground that it did not satisfy the subsection (2) requisites. See Kennedy v. Orlando Shader Realty, 711 So.2d 156, 158 (Fla. 1st DCA 1998). The logical inference from Kennedy is that services performed before a proper petition is filed may be included in a fee awarded to a prevailing claimant.

In the case at bar, the petition was not dismissed, nor has any contention been made that it did not meet the statute’s prescriptions. We therefore reverse the JCC’s construction of section 440.192(7) as barring all attorney time expended before the filing of a petition that complies with the subsection (2) criteria. Although we are aware that the JCC explicitly based his finding that 25 hours of attorney-time were reasonably expended upon the testimony of claimant’s expert, who opined that a reasonable amount of time should be between 25 and 30 hours, we note that the JCC also found that once the entries in counsel’s verified petition for fees were removed relating to the time involved before the filing of the petition for benefits, “the remaining time is very close to the time Mr. Miller testified would be reasonable for a claim of this type.”

Because it appears from the order that the time excluded would have been factored into the fee awarded but for the JCC’s erroneous conclusion that the statute precluded consideration of same, we remand the case to the JCC with directions that he revisit his fee determination by including within the fee the attorney-time claimant’s counsel expended before filing the petition for benefits, if he decides that such time related to the benefits secured. If the JCC determines on remand that some of the entries in the petition for fees are unrelated to the benefits secured, the JCC shall identify with specificity the time entries for which compensation is denied, or otherwise award fees based on the number of hours set out in the fee petition. See Sanchez v. Woerner Mgmt., Inc., 867 So.2d 1173 (Fla. 1st DCA 2004); Bryant v. Publix Super Markets, 786 So.2d 676 (Fla. 1st DCA 2001).

Appellant next assails the fee ordered as not supported by competent, substantial evidence (CSE), pointing out that her expert, Mr. Smith, the only witness offering evidence as to the value of the fee, testified that the type of case warranted a fee in the amount of $200.00 per hour, yet the JCC awarded an hourly fee of $168.00, despite the absence of any record foundation for same. We agree with appellant that the JCC’s finding lacks evidentiary support.

The rule is well recognized that if the issue to be decided turns on the amount of a reasonable hourly rate for an attorney’s fee, the appellate court’s review standard is whether CSE supports the JCC’s conclusion. See Feinberg v. Miami-Dade County, 788 So.2d 417, 418 (Fla. 1st DCA 2001); Miller v. JFK Mem’l Hosp., 624 So.2d 322 (Fla. 1st DCA 1993); Smith v. U.S. Sugar Corp., 624 So.2d 315, 319 (Fla. 1st DCA 1993). Accordingly, once the JCC decides, as he did here, that the application of the statutory factors for assessing a presumptive fee, as provided in section 440.34(1), is “manifestly unfair,” the JCC may depart upward or downward, and, in deciding what is a reasonable hourly rate, he or she may consider the fee customarily charged in the area for similar legal work. See Alderman v. Fla. Plastering, 805 So.2d 1097, 1100 (Fla. 1st DCA 2002). In making such assessment, the award must be predicated upon expert testimony regarding the reasonableness of the hourly rate. See Smith, 624 So.2d at 319; G & A Bldg. Maint. v. Makuski, 510 So.2d 1074 (Fla. 1st DCA 1987).

The expert clearly testified that a reasonable fee was $200.00 per hour. The JCC’s order ignored that testimony in arriving at a lesser hourly rate. Because there is no support in the record for the amount determined as reasonable by the JCC, the case is remanded with directions that a fee be awarded consistent with the only evidence relating to such issue.

The appellant next asserts the JCC erred in denying her, as the prevailing party, reimbursement of costs associated with certified mail mandated by section 440.192(1) for the filing and service of petitions for benefits. We review the JCC’s decision under an abuse of discretion standard and conclude that the denial of same constitutes such an abuse; consequently, we reverse with directions that the costs connected with the two petitions for which benefits were secured (one served on February 8, 2002, and the other on April 16, 2002) be awarded.

In reaching his conclusion that such costs were not taxable, but rather the “cost of doing business,” the JCC relied on the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, and noted that civil filing fees are not assessable as costs against the non-prevailing party. Under the Guidelines, mailing costs are considered office expenses and are not recoverable as taxable costs to the prevailing party. See, e.g., Seminole County v. Chandrinos, 816 So.2d 1241, 1246 (Fla. 5th DCA 2002); In re Estate of Williams, 771 So.2d 7, 8 (Fla. 2d DCA 2000); Dep’t of Transp. v. Skidmore, 720 So.2d 1125, 1130 (Fla. 4th DCA 1998).

We consider that the JCC’s reference to the Guidelines was misplaced. Although no provision under chapter 440 explicitly approves the taxing as costs of pleadings required to be served by certified mail, section 440.34(3) permits a prevailing claimant to tax against the employer the reasonable costs of such proceedings.” We cannot conceive it to be the legislative intent that an injured worker who successfully prosecutes a claim against his or her employer should not be made whole for all costs necessary to maintain the claim. Any conclusion to the contrary would obfuscate the expressed purpose “to ensure the prompt delivery of benefits to the injured worker,” and to create “an efficient and self-executing system.” § 440.015, Fla. Stat. (2001). It would ignore as well the fundamental purpose of the workers’ compensation law, which is that the cost of employment injuries should be placed on the industry served, rather than on society.

We therefore conclude that the legislative refusal to tax certain expenses as costs to successful litigants in the civil arena has no materiality whatsoever to the question of their taxation in workers’ compensation proceedings. Florida’s Workers’ Compensation Law has long been imbued with its own unique policy considerations that are entirely unlike those in any other legal setting. For example, this court has observed that the Rowe (Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985)) lodestar approach, with its contingency factors, used for assessing a reasonable attorney fee, has no applicability to fee awards in which a statute, such as section 440.34, sets out its own criteria. See What An Idea, Inc. v. Sitko, 505 So.2d 497 (Fla. 1st DCA 1987).

REVERSED and REMANDED.

BROWNING, J., concurs; DAVIS, J., concurs in result only.

      . In so deciding, we reject appellee's argument that if the JCC erred at all, it was a technical error that could have been readily correctable on rehearing, which the claimant did not pursue; therefore, the issue should be deemed not preserved. In our judgment, the error is substantive, rather than inconsequential; thus not susceptible to correction by rehearing. See Fla. R. Work. Comp. P. 4.141; Bogdanova v. Royal Hanneford Circus, 848 So.2d 1163, 1164 (Fla. 1st DCA 2003); Aircraft Servs. v. Reyes, 582 So.2d 66, 67 (Fla. 1st DCA 1991).

      . See McArthur Farms v. Peterson, 586 So.2d 1273, 1276 (Fla. 1st DCA 1991).


author: WOLF, C.J.

text:
    Donald CAMPBELL, Appellant, v. L & C CONSTRUCTION and American Interstate Ins. Co., Appellees.
    No. 1D03-0798.
    District Court of Appeal of Florida, First District.
    April 6, 2004.
    Dennis J. Hunter, Orlando, for appellant.
    George W. Boring, III, Maitland, for appellees.
   WOLF, C.J.

In this workers’ compensation appeal, claimant, Donald Campbell, challenges a final order raising five issues. We find that two issues regarding appellant’s past benefits have merit and reverse and remand for a recalculation of these benefits. We affirm all other findings in the order.

First, the judge of compensation claims (JCC) found that appellant’s average weekly wage (AWW) was $679.04, and not $640.00, which appellant’s employer L & C Construction used to calculate previously paid benefits. The JCC failed, however, to award appellant the difference between the previously paid benefits calculated at the lower (and. erroneous) AWW figure and the benefits calculated at the proper $679.04 AWW figure. We reverse and remand for entry of an order awarding appellant the difference between what he received and what he would have received had his compensation rate been based on the AWW determined by the JCC. See generally, Whitner v. Boulevard Tire Ctrs., 812 So.2d 592 (Fla. 1st DCA 2002).

Second, appellant sought temporary partial or temporary total disability (TPD or TTD) benefits from June 15, 2001, through the date of the hearing. Although the JCC found that TTD benefits were warranted because appellant’s treating physician found he was unable to work, the JCC ultimately held that appellant was not entitled to such, benefits after May 24, 2001. There is no competent substantial evidence establishing that appellant’s work status had changed on that date or at anytime prior to January 29, 2002. Thus TTD benefits should have been awarded until January 29, 2002. See Amburgey v. Palm Beach County Sch. Bd., 712 So.2d 426 (Fla. 1st DCA 1998) (finding that evidence a claimant is able to return to work is not sufficient to deny TTD benefits absent evidence claimant was informed or should have known that he or she was released to work). We remand for the JCC to grant TTD benefits until January 29, 2002. On remand, the JCC should calculate the benefits at the AWW of $679.04. See § 440.15(2), Fla. Stat.

PADOVANO and POLSTON, JJ„ concur.


author: PER CURIAM.

text:
    Robert Wayne CLOUD, Appellant, v. Joseph T. and Toni R. SCHENCK, Appellees.
    No. 1D03-2023.
    District Court of Appeal of Florida, First District.
    April 6, 2004.
    R. Frank Myers, Esquire, Levine Stiv-ers & Myers, Tallahassee, for Appellant.
    James V. Cook, Esquire, Tallahassee, for Appellees.
   PER CURIAM.

Appellant Robert Cloud appeals the trial court’s order entering final summary judgment in favor of appellees Joseph and Toni Schenck. On appeal, appellant argues that summary judgment was improper because material issues of fact remain and because the liquidated damages clause at issue is invalid as a matter of law. We agree with appellant that the liquidated damages clause is invalid as a matter of law and, therefore, reverse. Because we reverse based on the illegality of the liquidated damages clause, we do no reach the other issues appellant raises.

I. Background

In December of 2001, appellees/sellers entered into a contract with appellant/buyer for the sale of sellers’ real property. The original purchase and sale contract called for a total price of $230,000, a $5,000 deposit, and a closing date on or before February 15, 2002. The contract also provided:

If BUYER fails to perform this contract within the time specified, the deposit paid by BUYER may be retained by or for the account of SELLER as agreed upon liquidated damages, consideration for the execution of this contract and in full settlement of any claims; whereupon BUYER and SELLER shall be relieved of all obligations under contract; OR SELLER at SELLER’S option, may proceed to enforce SELLER’S rights under this contract.

Subsequently, the parties amended the original contract to extend the closing date until July 31, 2002. The addendum stated that as consideration and mutual consent for the extension of the closing date, buyer agreed to make certain mortgage payments on the property until the closing date and to pay an additional $10,000 binder into trust “in addition to the original $5,000” buyer already paid to sellers. The addendum then stated,

In keeping with the terms and conditions of the Contract for the Sale and Purchase for the property herein stated, should the Buyers fail to uphold the spirit and intent of the Contract for Sale and Purchase they agree to waive all claims for any and all monies paid that include the initial binder amount, monthly mortgage payment amounts and the additional binder amount.

The last paragraph of the addendum stated,

This Addendum is for the purpose of the clauses stated herein and shall in no way encumber, restrict, alter, or void the Contract for Sale and Purchase except as herein stated. All other terms and conditions, clauses and restrictions contained in the Contract for Sale and Purchase shall remain enforceable and actionable to the[ir] fullest extent.

Sellers eventually brought suit against buyer to recover the $10,000 binder residing in trust after buyer allegedly breached the contract. After filing suit, sellers moved for summary judgment. The trial court granted sellers’ motion and entered final summary judgment in favor of sellers. The court found that the parties did not intend for the $10,000 binder to be liquidated damages. Rather, the trial court found that they intended the sum to be consideration for the extension of the closing date and to be applied towards the purchase price, the same as the $5,000 deposit. The court ordered the clerk of court to pay sellers the $10,000, then held in trust by the court. Buyer timely appealed.

II. The $10,000 Binder

The trial court’s conclusion that the parties did not intend the $10,000 binder to be treated as liquidated damages is erroneous in light of the clear and unambiguous language of the addendum and its reference to the original contract. The addendum states that the $10,000 binder “is in addition to the original $5,000.00 Buyers have already given to Sellers” and that the additional binder would be forfeited if buyer failed to meet his obligations under the contract. The additional $10,000 was, therefore, consideration for the extension of the closing date in the form of additional earnest money, to be treated the same as the initial $5,000 deposit under the original contract. As such, the additional $10,000 was subject to the liquidated damages clause in the original contract.

Buyer argues that the liquidated damages clause in the original contract is invalid as a matter of law under the Florida Supreme Court’s decision in Lefemine v. Baron, 573 So.2d 326 (Fla.1991). In Lefemine, the purchasers of a residence sued for the return of their deposit after they were unable to obtain financing. Id. at 327. The purchase contract contained a liquidated damages clause worded as follows:

DEFAULT BY BUYER: If Buyer fails to perform the Contract within the time specified, the deposit(s) made or agreed to be made by Buyer may be retained or recovered by or for the account of Seller as liquidated damages, consideration for the execution of the Contract and in full settlement of any claims; whereupon all parties shall be relieved of all obligations under the Contract; or Seller, at his option, may proceed at law or in equity to enforce his rights under the Contract.

Id. at 327-28. The Florida Supreme Court held that this liquidated damages clause was invalid because of the option to either retain the deposit as liquidated damages or to bring an action for actual damages. Id. at 328-29. This option, the Court held, constituted a penalty as a matter of law. Id. at 330.

The liquidated damages clause in the instant case is virtually identical to the clause the Florida Supreme Court held invalid in Lefemine because it provides sellers with the option of either retaining the deposit money as liquidated damages or pursuing actual damages in a lawsuit. Because of this option, the liquidated damages clause constitutes a penalty as a matter of law and is invalid.

REVERSED and REMANDED.

ALLEN, KAHN and POLSTON, JJ. Concur.

      . See Cleveland Consol., Inc. v. Haren, 672 So.2d 592, 594 n. 1 (Fla. 1st DCA 1996) (stating that when determining whether a trial court has erred as a matter of law in its interpretation of a contract, the court should go no further than the clear and unambiguous language of the contract); Wilson v. S. Repair Servs., Inc., 795 So.2d 1121, 1123 (Fla. 5th DCA 2001) (stating that the interpretation of a written contract that is clear and unambiguous is a matter of law).


text:
    Joseph LITTMAN, Petitioner, v. STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF DRIVER LICENSES, BUREAU OF DRIVER IMPROVEMENT, Respondent.
    No. 1D03-2042.
    District Court of Appeal of Florida, First District.
    April 6, 2004.

      Lee Meadows and Paige Billings Shoemaker, Tallahassee, for Petitioner.
    Enoch J. Whitney, General Counsel, and Kathy A. Jimenez, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the circuit court’s denial of his petition to review the Department of Highway Safety & Motor Vehicles (“the Department”) revocation of his license. Because the circuit court did not depart from the essential requirements of the law, we deny the petition.

The Department revoked Petitioner’s driver’s license pursuant to section 322.28(2)(e), Florida Statutes (1993), because Petitioner had two convictions for driving under the influence in Florida and four convictions for driving under the influence in Virginia. The Department relied on a computer printout of Petitioner’s driving record from Virginia to revoke his license. Petitioner requested that the Department remove the Virginia convictions from his driving record because the computer printout was not sufficient evidence that he had been convicted. The Department denied Petitioner’s request; thus, Petitioner sought review of the Department’s decision in the circuit court. The circuit court found that the computer printout was sufficient evidence to revoke Petitioner’s license.

A certified copy of a computer printout of a driving record has been found to be sufficient evidence to establish that a defendant was driving under a suspended license. State v. Miller, 830 So.2d 214, 215 (Fla. 2d DCA 2002); Rodgers v. State, 804 So.2d 480, 482-483 (Fla. 4th DCA 2001). Thus, it follows that a computer printout is sufficient to prove by a preponderance of the evidence that Petitioner had been convicted of four counts of driving under the influence in Virginia for the purposes of revoking Petitioner’s driving license. Because the trial court did not depart from the essential requirements of the law by denying the petition and finding that the Department’s decision was supported by competent, substantial evidence, we deny the petition.

DENIED on the merits.

ERVIN and BOOTH, JJ„ and SMITH, LARRY G., Senior Judge, concur.


text:
    PREFERRED RV, INC., Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF MOTOR VEHICLES, Respondent.
    No. 1D03-3387.
    District Court of Appeal of Florida, First District.
    April 6, 2004.
    Jerri A. Blair and Kent Compton, of Lockett & Blair, P.A., Tavares, for petitioner.
    Enoch J. Whitney, General Counsel; Michael J. Alderman, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for respondent.
   WOLF, C.J.

Preferred R.V., Inc. files a petition for writ of certiorari to review a non-final emergency order of the Department of Highway Safety and Motor Vehicles (Department) suspending petitioner’s business license. Petitioner raises a number of issues, one of which we find dispositive. The challenged order does not explain why less harsh remedies such as probation, a fine, or notice of non-compliance would be insufficient to stop the alleged harm that the Department seeks to prevent. We therefore grant the petition and quash the order of the Department.

The petitioner, Preferred R.V., is a recreational vehicle dealer who was licensed by the Department under chapter 320, Florida Statutes. On July 25, 2003, the Department served the petitioner with an administrative complaint and order of emergency suspension of its recreational vehicle dealer license pursuant to section 120.60(6), Florida Statutes. Without a hearing, the Department ordered the petitioner to “cease and desist from the sale of or offer to sell recreational vehicles” and to “surrender its license and all dealer temporary tags in its possession.”

The administrative complaint alleges twenty violations which occurred in transactions with nine individuals or families:

nine violations of section 319.23(6) for failure to file the application for a certificate of title within 30 days from delivery of the vehicle to the purchaser;
seven violations of section 319.24(5)(a) for failure of the motor vehicle dealer acquiring ownership of a motor vehicle with an outstanding purchase money lien to satisfy the outstanding lien within ten working days of acquiring ownership; two violations of section 319.131(2) for issuing more than two temporary tags to the same person for the same vehicle; two violations of rule 15C-1.003 for failure to provide a license plate or registration to replace a temporary tag within 30 days from the day of issuance of the temporary tag.

The order states that the petitioner’s “continued activity as a recreational vehicle dealer constitutes an immediate, serious danger to the public health, safety, and welfare, because of continued proscribed activity requiring the emergency suspension of [Preferred R.V.’s] recreational vehicle dealer license....”

In Premier Travel Int’l, Inc. v. State, Dep’t of Agric. & Consumer Servs., 849 So.2d 1132 (Fla. 1st DCA 2003), we held that three agency emergency orders were facially insufficient for 1) failure to sufficiently allege that the complained of conduct was of a nature that was likely to continue; 2) failure to demonstrate the necessity of the emergency orders; and 3) failure to demonstrate that such a drastic remedy was the only way to avoid future harm (i.e., failure to show that the orders were sufficiently narrowly tailored to be fair). In addition, all the factual allegations and elements necessary to determine the validity of the emergency order must appear on the face of the order. See Witmer v. Dep’t of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 631 So.2d 338, 341 (Fla. 4th DCA 1994) (citing Commercial Consultants Corp. v. Dept’s of Bus. Regulation, 363 So.2d 1162, 1164 (Fla. 1st DCA 1978) (concerning an order to cease and desist)); see also Anderson v. Dep’t of Health & Rehab. Servs., 482 So.2d 491 (Fla. 1st DCA 1986) (concerning an order suspending a license). Specifically, emergency orders revoking a license to conduct business must explain why less harsh remedies, such as probation, a fine, or a notice of noncompliance would have been insufficient to stop the harm alleged. Premier Travel, 849 So.2d at 1132.

The emergency order in the instant case does not explain whether other remedies were tried and failed or why other remedies available to the Department would not take care of the public concern. Absent these factual allegations we are required by our prior holding in Premier Travel to quash the emergency order of the Department.

PADOVANO and POLSTON, JJ., concur.

      . We note that section 319.131(2) does not exist in Florida Statutes. It appears the correct statute for that violation is 320.131(2).

      . The order of emergency suspension was stayed by an order of this court on August 15, 2002, pending final disposition of this proceeding.

      . The Department argues that because two of the vehicles in question still have outstanding liens, it is apparent that suspension of petitioner’s business license is the only available remedy. Absent factual allegations concerning what actions the Department has taken prior to the issuance of the emergency order, however, it is not readily apparent that immediate suspension of appellant's business license is the only adequate remedy available.


text:
    Hank D. HARPER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4688.
    District Court of Appeal of Florida, First District.
    April 6, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.’
   PER CURIAM.

The appellant appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 postconviction motion, in which he alleges that he was erroneously sentenced as a habitual felony offender where the requisite predicate offenses did not exist for the sentence enhancements. Because the appellant’s motion is legally sufficient and the attached record portions do not conclusively show that the appellant is not entitled to relief, we reverse and remand with instructions to the trial court to conduct an evidentiary hearing to determine whether the appellant’s claim merits relief.

The appellant pled guilty to three counts of sexual battery by familial authority, which allegedly were committed between January 1, 1997, and November 3, 1999. The state relied on a burglary of a structure conviction on September 2, 1986, and a possession of a firearm by a convicted felon conviction on January 28, 1999, as predicate offenses for habitualization. In his postconviction motion and on appeal, the appellant challenges the use of the conviction for possession of a firearm as a predicate offense, alleging that the offense occurred after the commission of the crime for which the habitual offender sentence was imposed.

This Court must treat the appellant’s allegations as true where they are not rebutted conclusively by the record. See Valle v. State, 705 So.2d 1331, 1333 (Fla.1997). If the appellant’s allegation is deemed to be true, then the January 28, 1999, conviction may not be used as one of the requisite predicate felonies to habitualize the appellant for offenses committed prior to that date. See § 775.084(5), Fla. Stat. (1997); Rhodes v. State, 704 So.2d 1080, 1083 (Fla. 1st DCA 1997)(holding that commission of the predicate felony-must precede the commission of the current offense). The possession of a firearm conviction could only be used for habituali-zation purposes against those acts committed between January 28, 1999, and November 3, 1999.

The trial court’s attachments do not conclusively refute the appellant’s contention that the instant offenses of sexual battery were committed prior to the 1999 offense used to habitualize him. Because the offenses were alleged to have been committed over the course of several years, an evidentiary hearing may be necessary to determine which, if any, of the offenses occurred after January 28, 1999. Therefore, we reverse the order and remand for the trial court to conduct an evidentiary hearing to determine whether the record supports the appellant’s allegations, and if so, to resentence him accordingly. To the extent that the appellant’s habitual offender sentence was the result of a negotiated plea, the state will be entitled to withdraw from the plea agreement should the appellant prevail on remand. See Wade v. State, 822 So.2d 550, 551 (Fla. 1st DCA 2002).

REVERSED AND REMANDED with instructions.

WOLF, C.J., ERVIN and VAN NORTWICK, JJ., concur.


text:
    Dwayne R. MCKENZIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-846.
    District Court of Appeal of Florida, Fifth District.
    April 6, 2004.
    Dwayne R. McKenzie, Wewahithcka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Bowling v. State, 688 So.2d 947 (Fla. 5th DCA 1997).

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


author: STEVENSON, J.

text:
    Jack BLAINE, Appellant, v. Thais BLAINE, Appellee.
    No. 4D02-424.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.

      Steven Cripps of the Law Offices of Orsley & Cripps, P.A., West Palm Beach, for appellant.
    Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellee.
   STEVENSON, J.

This is an appeal and cross-appeal from an order of dissolution of marriage. The former husband, Jack Blaine, seeks review on the basis that the trial court erred in its determination and plan of equitable distribution and in failing to award him attorney’s fees and costs. In her cross-appeal, the former wife, Thais Blaine, argues that the trial court erred in failing to award her attorney’s fees and bridge-the-gap alimony, and in valuing the household contents at $37,500. We affirm and write to briefly discuss the trial court’s failure to award the former wife attorney’s fees.

The parties were married on March 14, 1994, and the petition for dissolution was filed on December 17, 1999. The former husband was fifty-six years of age at the time of the entry of the final judgment in December 2001, and former wife was forty-five years of age. The parties had no children during the marriage and the wife had one child from a prior marriage.

The former husband is employed as a highly paid executive with Unisys Corporation. The former husband’s gross income for the year 2000 was $678,312; his net monthly income as determined by the trial court is $27,814. The former wife had been employed as a sales associate for Unisys in Venezuela and earned approximately $100,000 per year when she worked full-time from 1983 to 1991. She re-located to Miami at the request of former husband and continued to work part-time for Unisys, earning approximately $65,000 per year. In 1995, the former wife stopped working with the approval of former husband because he wanted her to travel with him and to spend more time with her daughter, and for income tax purposes. Prior to the entry of the final judgment, former wife began selling residential real estate.

The parties’ substantial marital assets of $4,106,301 were divided equally. The former wife was distributed a total of $2,079,081 in marital assets: approximately $23,000 in cash; $847,710 in retirement and pension plans; $1,124,000 in real property, a $50,000 automobile; and personal property and jewelry valued at $39,000. The former husband also received a total of $2,079,081 in marital assets, consisting of similar, but not identical, categories as those given to the wife. Both parties received approximately $23,000 in cash. For the most part, the parties were equally responsible for the marital liabilities of approximately $349,000, except that the court ordered that the former husband was responsible to pay $113,545 of a $250,000 Washington Mutual loan balance because he used that amount to pay for professional fees in the case.

The former wife recognizes that the marital assets are substantial, and that she received half of them. Nevertheless, she argues that due to former husband’s vastly superior income, the trial court erred in failing to award her attorney’s fees. We disagree.

Section 61.16(1), Florida Statutes (2003), allows the court “after considering the financial resources of both parties, [to] order a party to pay a reasonable amount for attorney’s fees, suit money, and [costs].” An award of attorney’s fees requires a determination of one party’s financial need and the other party’s ability to pay, which involves a comparison of their respective financial resources. See Bryan v. Bryan, 765 So.2d 829, 835 (Fla. 1st DCA 2000); see also Giovanelli v. Giovanelli, 654 So.2d 154, 155 (Fla. 4th DCA 1995)(on rehearing)(stating that the principle criterion for award of attorney’s fees in marital cases is the relative financial resources of the parties).

We acknowledge that in some cases where there has been a substantial disparity in the income and earning capacity of the parties, and one spouse would have to invade modest capital assets or use investment income in order to pay attorney’s fees, courts have held that it is an abuse of discretion not to require the spouse with the larger earning capacity to pay attorney’s fees. See Margulies v. Margulies, 645 So.2d 54, 54 (Fla. 4th DCA 1994); see also Reich v. Reich, 652 So.2d 1200, 1203 (Fla. 4th DCA 1995); Thompson v. Thompson, 550 So.2d 1168 (Fla. 4th DCA 1989). Here, although the former wife may have been required to liquidate some of her assets, she could have easily paid reasonable attorney’s fees without substantially depleting her overall equitable distribution. In the instant case, there is no disparity between the parties’ post-dissolution assets as the parties have left the marriage with in excess of $2,000,000 each in assets. In addition, by the time of the final judgment, former wife was employed and there was evidence presented that she was capable of earning between $50,000 and $90,000 per year. Given the facts of this case, we cannot say that the trial court abused its discretion in denying the former wife’s claim for additional attorney’s fees.

Accordingly, we affirm the appeal and the cross-appeal.

AFFIRMED.

STONE and WARNER, JJ., concur.

      . The former husband had been required to pay $52,000 in attorney’s fees and accountant's fees during the proceedings.


author: TAYLOR, J.

text:
    COUSINS CLUB CORP., Appellant, v. Carlos A. SILVA and Elizabeth Silva, individually and as legal guardians of Carlos E. Silva, Appellees.
    Nos. 4D01-2392, 4D01-2751 and 4D01-4346.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Rosemary B. Wilder of Marlow, Connell, Valerius, Abrams, Adler & Newman, Miami, for appellant.
    Edna L. Caruso and Barbara J. Compia-ni of Caruso, Burlington, Bohn & Compia-ni, P.A., West Palm Beach, Justus W. Reid of Reid, Metzger & Bernhardt, P.A., West Palm Beach, and Gregg L Shavitz of Shav-itz Law Group, P.A., Boca Raton, for ap-pellees.
   ON MOTION FOR REHEARING

TAYLOR, J.

We grant appellant’s motion for rehearing in light of the Florida Supreme Court’s recent opinion in D’Angelo v. Fitzmaurice, 863 So.2d 311 (Fla.2003). We withdraw our previous opinion issued on October 22, 2003, and substitute the following.

The parents of Carlos E. Silva sued Club Boca individually and as legal guardians of their son to recover damages for severe brain injuries sustained by Carlos in a promotional boxing match held at the nightclub. The jury awarded Carlos $12,045,000 and his father and mother $50,000 and $250,000 respectively for loss of filial consortium. We affirm the final judgment for Carlos Silva, but reverse the derivative award to his parents based on Cruz v. Broward County Sch. Bd., 800 So.2d 213, 217 (Fla.2001).

On cross-appeal, the Silvas argue that Club Boca was not entitled to any set-off for settlements with prior co-defendants, as they were not pled as Fabre non-parties, placed on the verdict form, nor determined by the jury to be liable. We affirm based on D’Angelo.

On November 3, 1997, Carlos Silva, then a nineteen-year-old college student, went to Club Boca to box in the club’s Monday Night Boxing promotional event. Before the fight, Carlos signed a “Release, Assumption of the Risk and Indemnification Agreement.” Carlos was to fight Charlie Mejia, a friend and former wrestling teammate. Mejia had boxed once before at the club, but Carlos had never been in a boxing match prior to this event.

Although the testimony at trial was not clear, some witnesses thought that within seconds into the first round Carlos got hit and fell through the ropes, hitting his head on a wooden stage located next to the ring. During the second round, Carlos received several blows to his head. The referee allowed the fight to continue. Club Boca did not have a ringside physician available for the boxing match.

At the end of the third round, Carlos just sat in his corner with his head down. The referee asked one of his friends to remove him so they could start the next fight. Finally, the referee had to help remove Carlos. Carlos sat in a chair and kept leaning his head forward. Within a few minutes, he was unresponsive although conscious. Then his head was completely down; he was unconscious, making snoring noises. His friends began requesting help. One friend ran to a bouncer and requested a paramedic. The bouncer finally came over and “yoked” Carlos up under the arms, dragging him outside. The bouncer thought that Carlos was drunk, even though one friend was screaming that Carlos was not drunk and should not be handled that way. Eventually someone called for medical assistance. Approximately forty-five minutes passed from the time that Carlos left the ring until he received emergency medical assistance.

According to the plaintiffs’ expert medical testimony, Carlos sustained a subdural hematoma due to blows in the fight and/or hitting his head on the wooden stage and severe brain edema due to lack of oxygen. The experts testified that, although the subdural hematoma was significant, the severe brain edema was a result of the forty to forty-five minute delay in summoning medical attention. The lack of medical attention allowed the hematoma to get much larger and caused extremely high pressure to build up within Carlos’ cranial cavity. Carlos’ brain was so swollen that the neurosurgeon was forced to remove a part of the brain that controlled speech and motor functions on his right side. As a result, Carlos cannot speak or walk and remains in a partial vegetative state.

In their negligence count, the plaintiffs alleged that Club Boca was negligent in: (a) constructing the boxing ring adjacent to the fixed wooden stage in such a configuration as to be unreasonably dangerous to participants; (b) failing to provide a licensed physician and/or medical personnel to monitor the fight and the welfare of the participants; (c) continuing the fight following Carlos’ acceleration from the ring; (d) failing to monitor the health and welfare of Carlos prior to, during, and following the fight; (e) failing to place some form of mat or protection upon the adjacent fixed wooden stage; (f) failing to timely summon an ambulance; (g) negligently handling the impaired Carlos following the fight; (h) failing to have the referee monitor the health and welfare of Carlos; (i) permitting the announcer, promoter and/or referee to incite the participants to continue fighting; (j) failing to warn the boxers of the lack of medical attention; (k) failing to make certain that the participants could not come in contact with the adjacent stage; (l) failing to warn the boxers that the adjacent stage was within such close proximity and was dangerous; and (m) failing to appropriately regulate the level and skill of the boxers they paired to fight. Club Boca asserted as affirmative defenses that the release and waiver signed by Carlos barred the action, that Carlos assumed the risks inherent in the boxing match, and that Carlos was comparatively negligent.

Release and waiver

In a motion for summary judgment, Club Boca asserted that the release and waiver signed by Carlos completely barred this action. The document entitled “Release, Assumption of Risk and Indemnification Agreement” stated in pertinent part:

In consideration of my participation in the above entitled event, and with the understanding that my participation in Monday Night Boxing is only on the condition that I enter into this agreement for myself, my heirs and assigns, I hereby assume the inherent and extraordinary risks involved in Monday Night Boxing and any risks inherent in any other activities connected with this event in which I may voluntarily participate.

We conclude that the trial court properly denied Club Boca’s motion for summary judgment The court determined that the release did not bar the plaintiffs lawsuit, because under the agreement the plaintiff assumed only the risks inherent in the boxing match, and thus, released liability only, for injuries resulting from his voluntary participation in the boxing match. Further, the court ruled that the release did not clearly and unequivocally release Club Boca from liability for injuries to the plaintiff as a result of its own negligence.

We agree that, based on the language of the release, any negligence on the part of Club Boca fell outside the scope of the release. Thus, while Carlos may have been precluded from recovering for injuries resulting from any dangers inherent in boxing, he was not barred from recovering for injuries resulting from Club Boca’s negligence. See Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984); O’Connell v. Walt Disney World Co., 413 So.2d 444, 447 (Fla. 5th DCA 1982). The trial court therefore properly denied Club Boca’s motions for summary judgment, directed verdict, and a new trial on liability.

In determining that Carlos’ damages were mostly caused by Club Boca’s negligence, rather than by any inherent risks in boxing, the jury specifically found that Club Boca was negligent in: (1) failing to provide or obtain medical treatment for Carlos; (2) failing to maintain its premises in a reasonably safe condition; and (3) failing to properly supervise the Monday Night Boxing event. The jury attributed 85% negligence to Club Boca and 15% to Carlos. It awarded $912,000.00 for past medical expenses; $8,500,000 for future medical expenses; $1,633,000 for future loss of earning ability; $100,000 for past pain and suffering and loss of enjoyment of life; and $900,000 for future pain and suffering and loss of enjoyment of life. The total award for Carlos Silva was $12,045,000. Carlos’ mother was awarded $250,000 and his father $50,000 for loss of filial consortium. The trial court entered a final judgment on the verdict, reducing it to account for Carlos’ 15% comparative negligence.

Loss of filial consortium

Club Boca argues that the trial court erred as a matter of law in allowing Carlos’ parents to recover for loss of filial consortium. The plaintiffs properly concede that under Cm, damages of parents for loss of filial consortium are limited to the period of a child’s minority. 800 So.2d at 217. Because Carlos had already reached the age of majority at the time he was injured, we reverse the award to Carlos’ parents.

Setoff for settlements

Post-trial, Club Boca moved for a setoff of the plaintiffs’ pre-trial settlement with prior defendants (premises owners and lessors) against the jury award. The court allowed the setoff, but only against economic damages, pursuant to Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995). Club Boca appealed, contending that the setoff should have included non-economic damages. The plaintiffs cross-appealed, arguing that, under Gouty v. Schnepel, 795 So.2d 959 (Fla.2001), there should have been no setoff whatsoever, because the settling defendants did not appear on the verdict and the jury did not apportion liability as to them.

Non-economic damages

First, we conclude that the trial court properly determined that no setoff should be made from non-economic damages. In Wells, the supreme court reviewed the apportionment of damages statutes, section 768.81(3), Florida Statutes (Supp.1988), and Florida’s setoff statutes, sections 46.015, 768.041, and 768.31. Recognizing that under section 768.81(3), each defendant is solely, not jointly, responsible for his or her share of non-economic damages, and that the setoff statutes presuppose the existence of multiple defendants jointly liable for the same damages, the court concluded that setoff statutes do not apply to non-economic damages. Wells, 659 So.2d at 253.

Economic damages

Next, we conclude that the trial court was correct in allowing a set-off as to economic damages. The propriety of setting off a settlement against economic damages awarded by the jury where the settling party was not on the verdict form was recently decided by the Florida Supreme Court in D’Angelo. In D’Angelo, a defendant doctor had brought a motion to set-off against the damage award the settlement the patient had reached with a hospital that had not been included on the verdict form. The supreme court held as follows:

We hold that is appropriate to set off against the economic damages portion of an award against one tortfeasor in a medical malpractice action the economic damages portion of any settlement recovered from a settling tortfeasor for the same incident causing the injury where the settling tortfeasor was not included on the verdict form. However, there should be no setoff for noneconomic damages.

D’Angelo, 868 So.2d at 312.

This decision controls the instant case. Accordingly, we affirm the trial court’s order granting the set-off of plaintiffs’ settlement from economic damages.

In sum, for the reasons stated above, we affirm the final judgment for Carlos Silva; reverse the consortium award to Carlos’ parents; affirm the trial court’s orders disallowing setoff of plaintiffs settlement from non-economic damages; and affirm the order granting the setoff from economic damages.

AFFIRMED in part; REVERSED in part and REMANDED.

KLEIN and SHAHOOD, JJ., concur.

      . The jury found no negligence on the part of the boxing promoter or Mejia.


author: SHAHOOD, J. FARMER, C.J.,

text:
    Demestrist COLLINS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D02-1755, 4D03-1927.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

This is a consolidated appeal in which appellant challenges his judgment of conviction and sentence as well as the summary denial of his post-conviction motion for DNA testing. We affirm appellant’s conviction and sentence. We reverse and remand the summary denial of appellant’s post-conviction motion for DNA testing and direct the trial court to conduct an evidentiary hearing and make findings in conformity with the requirements of rule 3.853(c)(5), Florida Rules of Criminal Procedure.

After his conviction and sentence appellant filed a motion for DNA testing pursuant to rule 3.853. Appellant claimed that his case was that of mistaken eyewitness identification and that the testing of DNA evidence would exonerate him and demonstrate that he was not the burglar and that it was not his blood at the point of entry into the apartment. The trial court adopted the state’s response and summarily denied appellant’s motion.

Upon the facts of this particular case, we hold that appellant’s motion was legally sufficient in satisfying the requirement of explaining how the DNA evidence could exonerate him or mitigate his sentence and the record does not conclusively refute appellant’s claim. The trial court is directed to conduct an evidentiary hearing to consider the merits of the claim and whether the evidence is in testable form. See Riley v. State, 851 So.2d 811 (Fla. 2d DCA 2003).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TAYLOR, J., concurs.

FARMER, C.J., concurs specially with opinion.

FARMER, C.J.,

concurring specially.

I write to comment on sending this case back for further proceedings on defendant’s motion under rule 3.853.

The motion was filed while defendant’s conviction was under review, approximately nine months after sentencing. Nothing in the motion addresses whether defendant requested DNA testing before his trial and, if not, why not.

In other words, this is not an ages old conviction that became final before DNA testing became available, coupled with a history of maintaining actual innocence. This case was tried in 2002. If the blood on the windowsill would have created doubts that defendant burglarized the apartment in question, then he had a perfect right, not to mention the ability, to request DNA testing and produce the results at trial. He did not do this.

In Baker v. State, 29 Fla. L. Weekly S105 (Fla. Mar. 11, 2004), the court took pains to recall the very limited remedy of post conviction relief made available through motion under the Florida Rules of Criminal Procedure. As the court emphasized:

“The purpose of the Rule 3.850 motion is to provide a means of inquiry into the alleged constitutional infirmity of a judgment or sentence, not to review ordinary trial errors cognizable by means of a direct appeal. The motion procedure is neither a second appeal nor a substitute for appeal.” [e.s.]

See also Mills v. Dugger, 574 So.2d 63, 65 (Fla.1990) (“[Hjabeas corpus is not to be used ‘for obtaining additional appeals of issues which were raised, or should have been raised, on direct appeal or which were waived at trial or which could have ... or have been, raised in’ prior postcon-viction filings.”). Almost since the very beginning of the current system of post conviction relief, it has been well settled that this remedy is unavailable to raise issues for the first time that could have been raised at trial. See Fla. R.Crim. P. 3.850(c) (“This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.”); Blanco v. State, 702 So.2d 1250 (Fla.1997) (issue waived in post conviction relief where it could have been but was not, raised at trial).

I recognize that rule 3.853 does not contain the express limitation of rule 3.850(c) (“This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.”), but surely that must be read into the rule for cases coming to trial after its adoption. Although rule 3.853 also does not expressly state that it is designed for cases where DNA testing was not available until after the conviction had already become final and the defendant has always maintained his innocence, that is obviously its essential purpose. In the present case, tried in 2002, there is absolutely no reason why defendant could not have had the windowsill blood tested before trial.

Because the motion was filed while this direct appeal from the conviction itself was still pending, and perforce the conviction itself was not yet final, I agree only that the motion was premature. Therefore, defendant is free to file such a motion upon this court’s affirmance of the conviction. But the freedom to file the motion does not mean to me that the trial court must inevitably grant DNA testing. I think the issue of waiver should, and does, remain open.


author: ALTENBERND, Chief Judge.

text:
    Vasco HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4423.
    District Court of Appeal of Florida, Second District.
    April 7, 2004.

      James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Chief Judge.

Vasco Howard appeals a judgment for robbery with a firearm, raising two issues arising from his jury trial. We reverse because during voir dire the trial court sua sponte dismissed a prospective juror for cause and denied Mr. Howard’s request for an opportunity to question the juror to clarify whether her answers to prior questioning indicated an inability to fulfill her obligations as a juror. See Fla. R.Crim. P. 3.300(b); Melendez v. State, 700 So.2d 791, 792 (Fla. 4th DCA 1997). Although our disposition of this issue makes it unnecessary for us to reach the second evidentiary issue, we comment upon that issue so that it will not recur in a new trial.

Mr. Howard was charged as a principal in the armed robbery of a convenience store that was committed by two men. At Mr. Howard’s trial, the State presented the testimony of a man who had admitted committing this crime and indicated he did it with a man adorned in a Dr. Seuss “Cat in the Hat” hat, whom he knew as “Bear.” The State had other evidence tending to establish that Mr. Howard was “Bear.”

During voir dire, the prosecutor questioned the prospective jurors regarding their ability to consider and weigh the testimony of a person who assisted in committing the crime. The prosecutor initially asked the juror at issue here, juror number 950: “If I were to satisfy [the] burden of proof with the testimony of a codefen-dant, what would be your opinion of that?” Juror 950 responded: “I don’t see where it would change the color of anything. It would still be testimony.” Another prospective juror, juror number 946, was less receptive to such testimony. As voir dire continued, however, the prospective jurors became confused by the wording of the prosecutor’s questions on this topic. As the confusion worsened, the trial judge interjected and attempted to rephrase the question, asking the jurors whether the mere fact that a person was a co-perpetrator would result in their totally disregarding that person’s testimony. The trial judge specifically directed his question first to juror 946, who answered unequivocally that he would wholly disregard the testimony of a co-perpetrator of a crime. The trial judge then called out juror 950’s name, and that juror responded “Yes.” From the record, it is impossible to determine whether this “yes” was in response to the trial judge calling the juror’s name, or was intended by the juror as a response to the question posed. At this point, the trial judge sua sponte dismissed both jurors for cause. The trial judge overruled Mr. Howard’s objection to the dismissal and refused to permit his counsel to question juror 950.

Florida Rule of Criminal Procedure 3.300(b) provides in part that “[c]ounsel for both the state and defendant shall have the right to examine jurors orally on their voir dire.” In Melendez, 700 So.2d 791, the Fourth District held:

The court’s failure to allow counsel to inquire into a prospective juror’s potential biases amounts to an abuse of discretion warranting reversal unless it becomes “conclusively clear to the court after questioning, that there was no reasonable basis to anticipate that the juror could return a verdict against the defendant.” Fleckinger v. State, 642 So.2d 35 (Fla. 4th DCA 1994).

Melendez, 700 So.2d at 792; see also Green v. State, 575 So.2d 796 (Fla. 4th DCA 1991).

Here, the trial judge’s questions, coupled with the prior questions asked of this prospective juror, did not conclusively establish that she could not fulfill her role as a juror by properly weighing the testimony of a co-perpetrator. We conclude that the trial court abused its discretion in dismissing this juror for cause without first granting the request of Mr. Howard’s counsel to question her further.

Because the voir dire does not otherwise conclusively establish that this juror was unable to fulfill her role as a juror and it is possible that she could have served on the jury, it may be that the trial court’s error is a structural defect that must be treated as per se error: See Dougherty v. State, 813 So.2d 217, 223-24 (Fla. 2d DCA 2002). In this case, we do not decide whether this type of error is per se error, because even if the harmless error analysis applies, the State cannot show beyond a reasonable doubt that this error did not contribute to the jury’s verdict of guilt. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). We therefore reverse Mr. Howard’s judgment and sentence and remand for a new trial.

Mr. Howard also argues that the trial court erred in overruling his objections to an evidentiary issue. Although we reverse Mr. Howard’s conviction based upon the error in voir dire, we comment on this evidentiary issue in the event it recurs in Mr. Howard’s next trial.

In his defense, Mr. Howard presented his mother, Ms. Samuel, as an alibi witness. Ms. Samuel testified that on the night of the robbery, Mr. Howard was asleep on a sofa in her apartment. Over Mr. Howard’s objection, the trial court permitted the prosecutor to question Ms. Samuel regarding when defense counsel first listed her as a witness in Mr. Howard’s discovery disclosures. Apparently, the attorney initially appointed to represent Mr. Howard did not disclose Ms. Samuel as a witness. Instead, Ms. Samuel was first listed as a witness a month prior to trial, shortly after Mr. Howard’s trial counsel filed a notice of appearance in the case.

The prosecutor presented Ms. Samuel with a discovery disclosure filed by Mr. Howard’s trial counsel dated June 15, 2001, which listed Ms. Samuel as a witness. He had her acknowledge this document. When Ms. Samuel insisted that she had told Mr. Howard’s prior counsel about this alibi and that she did not know whether prior counsel had listed her as a witness or why that counsel would have failed to do so, the prosecutor retorted: “[Yjou’re not saying [prior counsel] isn’t a competent attorney, are you?” Ms. Samuel replied, “No, I’m not.” When Ms. Samuel again asserted that she told Mr. Howard’s prior counsel about the alibi, the prosecutor questioned, “And she chose not to put you on the witness list?”

In closing arguments, the prosecutor argued:

[Ms. Samuel] spoke with the first attorney for the defense, counsel for the defendant. That attorney heard her out as she said. She gave her opinion. Why did the attorney not add her as a witness? Is that perhaps comment on her version of the facts and whether or not they are in accordance with the actual facts of this case?

The prosecutor’s questioning of Ms. Samuel, and the subsequent use of her answers in closing argument, was improper. Ms. Samuel was not competent to testify regarding the actions of Mr. Howard’s prior counsel. There were many potential explanations as to why prior counsel did not list Ms. Samuel as a witness prior to withdrawing from the case — explanations other than the inference that prior counsel thought Ms. Samuel was lying. Even if the prosecutor could have questioned Mr. Howard’s prior counsel regarding her intentions, he would have been prohibited from questioning the attorney regarding her opinion of Ms. Samuel’s veracity. See Boatwright v. State, 452 So.2d 666, 668 (Fla. 4th DCA 1984). The prosecutor was not permitted to accomplish indirectly, by inference and without any competent evidence, that which he could not do directly. In a new trial, this line of questioning should be avoided.

Reversed and remanded.

NORTHCUTT and CASANUEVA, JJ., concur.


author: WARNER, J.

text:
    Diane MARKOWITZ, Appellant, v. Gary MERSON, as Personal Representative of the Estate of Harold Merson, deceased, Appellee.
    No. 4D03-3782.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Thomas K. Topor of the Kelley Law Firm, Fort Lauderdale, and John Beranek of Ausley & McMullen, Tallahassee, for appellant.

      Laurence S. Litow of Litow, Cutler & Zabludowski, LLC, Fort Lauderdale, for appellee.
   WARNER, J.

Appellant, a beneficiary under the will of the deceased, appeals an order denying her challenge to the probate court’s personal jurisdiction over her and requiring her to return bearer bonds belonging to the estate, which she removed from the State of Florida. We affirm on both issues.

First, with respect to personal jurisdiction, appellant was given formal notice of the petition for administration of the estate. See § 731.301(2), Fla. Stat. (2002). Furthermore, she filed a response to the formal notice and sought discovery in the estate proceedings. These acts, without a prior assertion of lack of personal jurisdiction, constituted a waiver of any claimed lack of jurisdiction. See Cumberland Software, Inc. v. Great Am. Mortgage Corp., 507 So.2d 794, 795 (Fla. 4th DCA 1987).

Second, with respect to the court’s order requiring return of the bonds to Florida, this case is analogous to In re Estate of Barsanti v. Cypen, 773 So.2d 1206 (Fla. 3d DCA 2000), in which the court reversed the denial of an order requiring return of bearer corporate stock certificates to Florida. The appellate court held that the probate court should have entered an injunction requiring return to the personal representative of an estate of the stock certificates possessed by an out-of-state beneficiary. The court explained:

This court held in Estate of Conger v. Conger, 414 So.2d 230, 233 (Fla. 3d DCA 1982): “A circuit court, sitting in its probate capacity, has inherent jurisdiction to monitor the administration of an estate and to take such appropriate action as it may deem necessary to preserve the assets of the estate for the benefit of the ultimate beneficiaries.” Furthermore, a probate court has the authority to issue temporary injunctions freezing assets claimed to belong to a decedent’s estate, even though ultimate ownership of those assets may be in dispute.

See Cypen, 773 So.2d at 1208 (citations omitted). The court noted that the function of the temporary injunction was not to determine the ownership of the stock but to preserve the asset pending the outcome of that determination, consistent with the duty of the personal representative to marshal and preserve the assets of the estate for distribution. See id. at 1209; § 733.607(1), Fla. Stat. (2002).

Similarly, in this case the appellant took the bearer bonds from the deceased’s safe deposit box after his death. The personal representative is simply fulfilling his duty to gather the assets of the estate by demanding their return. The trial court’s ordering their return to Florida was proper. If appellant has a claim to ownership, it can be made in the probate proceedings.

Affirmed.

STEVENSON and GROSS, JJ., concur.


author: HAZOURI, J.

text:
    TENET ST. MARY’S INC., d/b/a St. Mary’s Medical Center, Petitioner, v. Agnes SERRATORE, Respondent.
    No. 4D03-4372.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.

      Marc T. Millian and Ron D. Herman of Michaud, Buschmann, Mittelmark, Millian, Blitz, Warren & Coel, P.A., Boca Raton, for petitioner.
    No brief filed for respondent.
   HAZOURI, J.

Tenet St. Mary’s, Inc. d/b/a St. Mary’s Medical Center (St.Mary’s) petitions for writ of certiorari seeking review of an order denying its motion to dismiss the complaint of Agnes Serratore, for failure to follow the presuit requirements of section 766.106, Florida Statutes (2001).

On September 27, 2002, Serratore was injured after receiving dialysis treatment at St. Mary’s. According to Serratore’s complaint, which is labeled “simple negligence,” Serratore was sitting in a reclining chair after completing dialysis treatment and a St. Mary’s employee attempted to assist her by returning the chair to its upright position so that Serratore could stand up. The employee attempted to kick the footrest of the chair to return the chair to the upright position, but instead “negligently” kicked Serratore’s right foot. The resulting injury did not heal and eventually required a below-the-knee amputation on December 3, 2002.

St. Mary’s filed a motion to dismiss Ser-ratore’s complaint. As grounds for dismissal, St. Mary’s asserts that Serratore did not comply with the chapter 766 pre-suit screening requirements for medical malpractice claims. St. Mary’s argues that although Serratore was alleging simple negligence, she was required to file her complaint as a medical malpractice case because the injury occurred while she was under the care of a hospital employee after receiving dialysis treatment. We disagree and deny the petition.

The allegations of the complaint do not seek to state a cause of action for medical negligence under section 766.102, Florida Statutes (2001); therefore, the trial court was correct in denying the motion to dismiss. The test for determining whether the defendant is entitled to the benefit of the presuit screening requirements of section 766.106 is whether the defendant is liable under the medical negligence standard of care set forth in section 766.102(1). See Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla.2002); Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251, 1252 (Fla. 1st DCA 2000); Feifer v. Galen of Fla., Inc., 685 So.2d 882, 885 (Fla. 2d DCA 1996).

The gravamen of Serratore’s complaint for negligence does not arise out of the receiving of medical care nor does it require that Serratore prove that the actions of the St. Mary’s employee deviated from an accepted standard of medical care, which is required under section 766.102(1). There is clearly no professional standard of care involved in attempting to Mck a footrest of the reclining chair to return it to its upright position. The mere fact that this event occurred immediately after Ser-ratore received dialysis treatment does not convert this to an action based upon medical negligence.

St. Mary’s argues that the instant case is controlled by the Third District Court of Appeal opinion in Neilinger v. Baptist Hospital of Miami, Inc., 460 So.2d 564 (Fla. 3d DCA 1984). We disagree. We find the Neilinger case distinguishable.

The complaint in Neilinger alleged that the plaintiffs claim arose out of Baptist Hospital’s alleged negligent medical care of the plaintiff, Sandra Neilinger, while she was a maternity patient at the hospital. Neilinger slipped and fell on a pool of amniotic fluid while she was descending from an examination table under the direction and care of hospital employees. The exact circumstances surrounding this incident are not delineated in the opinion. However, unlike the instant case, Neilinger alleged her injuries were the result of negligent medical care while she was under the direction and care of hospital employees. There are no such allegations in the instant case.

St. Mary’s has failed to demonstrate that the lower court’s denial of its motion to dismiss departs from the essential requirements of law and accordingly, we deny the petition.

WARNER and GROSS, JJ., concur.

      . Section 766.102(1) states:
      In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.


author: SHAHOOD, J.

text:
    Albano SEABRA, Appellant, v. INTERNATIONAL SPECIALTY IMPORTS, INC., Triunfo Food Import and Export Corp., a foreign corporation, Antonio Seabra, Renato Costa, Isi Brazil, a foreign corporation, and Robert Tavares, jointly and severely, Appellees.
    No. 4D03-2718.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Robert M. Weinberger of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for appellant.

      Steven M. Goldsmith of Steven M. Goldsmith, P.A., and Keith A. Goldbaum of Friedman, Rosenwasser & Goldbaum, Boca Raton, for appellee, International Specialty Imports, Inc.
   SHAHOOD, J.

We review the trial court’s non-final order denying appellant’s motion to dismiss for lack of personal jurisdiction. Because the complaint did not allege sufficient jurisdictional facts to exercise Florida’s long-arm jurisdiction over appellant, we reverse the order and remand with directions that the action against appellant be dismissed.

Appellee, International Specialty Imports, Inc. (ISI), filed suit against appellant, in his individual capacity, and others, alleging that the defendants conspired to appropriate confidential corporate information and trade secrets from ISI and used the information to interfere with ISI’s business relationships. Appellant moved to dismiss the complaint for lack of jurisdiction and filed a supporting affidavit stating that he resides in New Jersey, does not own or lease any real property in Florida, has no permanent or temporary residence in Florida, does not conduct business in Florida, and has never met with any person employed by ISI or acting on the company’s behalf either in Florida or elsewhere.

Appellant’s deposition was also submitted. He stated that he is a shareholder in and vice-president of Triunfo Food Import and Export Corp. (Triunfo), a co-defendant, but he has no role in the company. Appellant is employed by Beira Corp. and runs operations for A. J. Seabra Supermarkets, Inc. In the past two years, appellant has been to Florida once for a business trip on behalf of A.J. Seabra Supermarkets. During that trip, he searched for a site on which to open a supermarket. A.J. Seabra Supermarkets is unrelated to Triunfo. In his deposition, appellant admitted that, while in Florida on that trip, he met personally with Renato Costa (Costa), a former employee of ISI and also a defendant in this action.

The standard of reviewing an order dismissing a cause for lack of personal jurisdiction is de novo. Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002). In determining whether a Florida court has personal jurisdiction over a nonresident, two inquiries must be made. See Northwestern Aircraft Capital Corp. v. Stewart, 842 So.2d 190 (Fla. 5th DCA 2003). First, the court must consider whether the complaint alleges sufficient jurisdictional facts to bring the action within the control of Florida’s long-arm statute, section 48.193, Florida Statutes (2002), i.e., whether defendant performed any of the acts delineated in the statute. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). If such facts are alleged, the second inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements of the United States Constitution. Id. “Factors that go into determining whether sufficient minimum contacts exist include the foreseeability that the defendant’s conduct will result in suit in the forum state and the defendant’s purposeful availment of the forum’s privileges and protections.” Taskey v. Burtis, 785 So.2d 557, 559 (Fla. 4th DCA 2001).

In addition, courts are required to strictly construe the long-arm statute. See Camp Illahee Investors, Inc. v. Blackman, 28 Fla. L. Weekly D2672 (Fla. 2d DCA Nov.19, 2003).

In the complaint, appellee alleged that appellant was doing business in Florida, an act which will subject one to personal jurisdiction. See § 48.193(l)(a) (one is subject to personal jurisdiction as a result of “[o]perating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.”). Appellant refuted that allegation with the filing of his supporting affidavit, which showed that he visited Florida one time in the past two years for the limited purpose of trying to locate a site for a supermarket. Thus, the burden shifted to appellee to “prove by affidavit the basis upon which jurisdiction may be obtained.” Venetian Salami, 554 So.2d at 502 (citing Elmex Corp. v. Atl. Fed. Sav. & Loan Ass’n, 325 So.2d 58 (Fla. 4th DCA 1976)). Appellee failed to meet its burden of proving that appellant’s one-time visit to Florida was sufficient to subject him to personal jurisdiction in Florida. See, e.g., Suroor v. First Inv. Corp., 700 So.2d 139, 140 (Fla. 5th DCA 1997)(holding that allegations that appellant owned property in the state, had visited the state to inspect and develop the property, had paid for services to improve the property, and had contracted to have other services performed in Orange County were insufficient to establish that he was conducting business in the state); see also Beasley v. Diamond R. Fertilizer Co., 710 So.2d 1025, 1026 (Fla. 5th DCA 1998)(rejeeting the argument that the formation of a corporation and the opening of a bank account exhibit an intent to conduct business in Florida sufficient to meet the statutory test for in personam jurisdiction).

Moreover, even if appellant’s one-time business trip to Florida were sufficient to bring this action within Florida’s long-arm statute, appellees did not overcome the second hurdle. The complaint did not allege either connexity between the cause of action and appellant’s activities in Florida (specific jurisdiction) or continuous and systematic general business contacts with the forum (general jurisdiction). See, e.g., Am. Overseas Marine Corp. v. Patterson, 632 So.2d 1124, 1127-28 (Fla. 1st DCA 1994)(Specific jurisdiction “requires a causal connection between the defendant’s activities in the forum state and the plaintiffs cause of action.... [F]or general jurisdiction to exist, the defendant must be found to have maintained ‘continuous and systematic general business contacts,’... ‘a much higher threshold’ ”).

Other than the one visit to Florida, there was nothing else presented which showed either sufficient minimum contacts .or connexity with the lawsuit. Under these circumstances, appellant could not expect to be haled into court in this state and the trial court should have granted his motion to dismiss. See generally Burger King Corp. v. Rudzewicz, 471 U.S. 462,105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

Accordingly, we reverse the order denying appellant’s motion to dismiss and remand with directions that the complaint against appellant be dismissed.

REVERSED AND REMANDED WITH DIRECTIONS.

STEVENSON and MAY, JJ., concur.

      . Appellees dispute that appellant’s affidavit was sufficient to refute the jurisdictional allegations, arguing that, while appellant refuted the allegation of doing business in the state, he did not refute the allegation that he tor-tiously interfered with appellee's business relationships. This argument is unavailing, however, because the complaint does not allege tortious conduct on the part of appellant that occurred in Florida.