text:
    Edward WALSH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3922.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.
    Edward Walsh, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Edward Walsh appeals the order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Walsh alleges that it is clear on the face of the record that he is entitled to an additional five days of jail credit. Walsh claims he did not receive credit for the time he was in custody from his arrest on July 12, 2001, until July 16, 2001, when he was released on bond. Although Walsh received 195 days of jail credit, he asserts that amount only covered the time he was in county jail after his bond was revoked.

The circuit court denied Walsh’s 3.800(a) motion without comment. If a defendant alleges that the record shows a clear entitlement to additional jail credit, the circuit court must either grant the additional credit or attach portions of the record to show that defendant is not entitled to additional credit or that it is unclear whether he is entitled to the additional credit. See State v. Mancino, 714 So.2d 429 (Fla.1998); Brown v. State, 816 So.2d 1142 (Fla. 5th DCA 2002). The circuit court in the instant case did not explain its reason for denying the legally sufficient motion, nor did it attach any documents to refute the allegations therein. We therefore reverse the order denying the 3.800(a) motion and remand the case to the circuit court.

REVERSED and REMANDED.

SAWAYA, C.J., PETERSON and ORFINGER, JJ., concur.


source: Caselaw Access Project

author: SHARP, W., J.

license: Public Domain

text:
    Alex C. BONNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2642.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.
    Alex C. Bonner, Coleman, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Bonner appeals from an order of the circuit court which denied his petition for writ of habeas corpus. We affirm.

Bonner was placed on probation by the state court in Marion County, Florida, on March 1, 1991. While he was still on probation, he was arrested by the federal authorities in 1996. He was convicted and sentenced by the federal court to a federal prison term for conspiracy to distribute cocaine. On February 2, 1996, the state law enforcement officials filed a detainer action letter with the federal prison authorities because Bonner had violated his state probation by having violated the federal law.

Bonner is currently incarcerated on the federal charges in the Federal Correctional Complex in Coleman, Florida, and will not complete his federal sentence until March 30, 2005. He filed this petition for writ of habeas corpus on June 30, 2002.

Clearly Bonner was not entitled to habeas corpus or mandamus relief, since he was not, nor did he allege, he was entitled to immediate release or was being held without lawful authority. See § 79.01, Fla. Stat. The circuit court treated his petition as a motion to be heard immediately on his probation violation charge, or in the alternative, for the court to dismiss the probation charge. It denied both.

A detainer is a request by a criminal justice agency filed with an institution in which a prisoner is incarcerated, asking it to either hold the prisoner for the agency or to notify the agency when the prisoner’s release is imminent. Gethers v. State, 838 So.2d 504 (Fla.2003). A detain-er is not an arrest, which may trigger a quick disposition of VOP charges. Both Florida Rule of Criminal Procedure 3.790(b) and section 948.06(1), Florida Statutes contemplate that a probationer be given an opportunity to be heard “as soon as practicable,” on his or her VOP, but they contemplate the arrest of the probationer and his or her return to the court which granted the probation. See Diaz v. State, 737 So.2d 1203 (Fla. 5th DCA 1999).

The remedies sought by Bonner in this case are premature and inappropriate.

AFFIRMED.

MONACO and TORPY, JJ., concur.

      . Section 948.06, relied upon by Bonner, provides:
      1) Whenever within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control has violated his or her probation or community control in a material respect, any law enforcement officer who is aware of the probationary or community control status of the probationer or offender in community control or any parole or probation supervisor may arrest or request any county or municipal law enforcement officer to arrest such probationer or offender without warrant wherever found and forthwith return him or her to the court granting such probation or community control. Any committing magistrate may issue a warrant, upon the facts being made known to him or her by affidavit of one having knowledge of such facts, for the arrest of the probationer or offender, returnable forthwith before the court granting such probation or community control.... Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, the probationary period is tolled until the court enters a ruling on the violation.... The court, upon the probationer or offender being brought before it, shall advise him or her of such charge of violation and, if such charge is admitted to be true, may forthwith revoke, modify, or continue the probation or community control or place the probationer into a community control program.... Notwithstanding s. 775.082, when a period of probation or community control has been tolled, upon revocation or modification of the probation or community control, the court may impose a sanction with a term that when combined with the amount of supervision served and tolled, exceeds the term permissible pursuant to s. 775.082 for a term up to the amount of the tolled period supervision ....

      (4) Notwithstanding any other provision of this section, a probationer or an offender in community control who is arrested for violating his or her probation or community control in a material respect may be taken before the court in the county or circuit in which the probationer or offender was arrested. That court shall advise him or her of such charge of a violation and, if such charge is admitted, shall cause him or her to be brought before the court which granted the probation or community control. If such violation is not admitted by the probationer or offender, the court may commit him or her or release him or her with or without bail to await further hearing. The court, as soon as is practicable, shall give the probationer or offender an opportunity to be fully heard on his or her behalf in person or by counsel. ... Upon the probationer or offender being brought before it, the court which granted the probation or community control may revoke, modify, or continue the probation or community control or may place the probationer into community control as provided in this section. (Emphasis added)


author: SILBERMAN, Judge.

text:
    Curtis Harold KNARICH, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-1679.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2004.

      James Marion Moorman, Public Defender, and Richard P. Albertine Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Curtis Knarieh appeals his sentence for the lewd and lascivious act of handling and fondling a child under sixteen years of age. Because of errors in scoring Knarich’s pri- or record, and because the trial judge improperly commented on Knarich’s motion to disqualify the judge, we reverse and remand for resentencing before a different trial judge.

The State charged Knarieh with handling and fondling a child under the age of sixteen years, a second-degree felony in violation of section 800.04, Florida Statutes (1997), which is entitled, “Lewd, lascivious, or indecent assault or act upon or in presence of child.” The amended information alleged that Knarieh committed this offense “by placing the hand of Curtis Harold Knarieh on and rubbing the buttocks of the said [W.C.], said act being done in a lewd, lascivious and indecent manner, but without committing the crime of sexual battery” and alleged that the offense took place between July 5 and August 11, 1997. After a jury trial, Knarieh was convicted. At the original sentencing hearing of February 12, 1999, the trial court declared Knarieh to be a sexual predator and imposed a sentence of forty years in prison, with the last fifteen years to be suspended and Knarieh to be placed on fifteen years of sex offender probation.

Knarieh appealed, and this court affirmed his judgment but reversed and remanded for resentencing. Knarich v. State, 766 So.2d 404 (Fla. 2d DCA 2000). This court stated that to properly score Knarich’s prior record on remand, the trial court must compare the elements of Kna-rich’s prior military convictions with the elements of comparable Florida offenses. Id. at 405.

The trial court held a resentencing hearing on December 1, 2000, and a continued resentencing hearing on March 9, 2001. The scoresheet on resentencing reflected 274.6 points for prior record based on twenty-five prior military offenses. The scoresheet also included forty points for victim injury based on sexual contact. The trial court again designated Knarieh a sexual predator and imposed a sentence of thirty-five years in prison, with the last ten years suspended and Knarieh to be placed on ten years of sex offender probation. Knarieh appealed, and while this appeal was pending, he filed a motion and amended motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Knarieh also filed a motion to disqualify the trial judge. The trial judge heard the amended motion and, after denying the motion to disqualify, denied the amended motion to correct sentencing error. On appeal, Knarieh contends that the trial judge erred in responding to the allegations of Knarich’s motion to disqualify, that Knarich’s prior military convictions were improperly scored as prior record, and that victim injury points were improperly scored.

MOTION TO DISQUALIFY TRIAL JUDGE

At the continued resentencing hearing on March 9, 2001, Knarieh was represented by counsel. Knarieh had filed a pro se motion to disqualify the trial judge, and Knarich’s counsel elected not to join in the motion. The trial judge allowed Knarieh to act as co-counsel so that he could argue his motion to disqualify. Ultimately, the trial judge denied Knarich’s motion as legally insufficient.

On September 17, 2002, the same judge heard Knarich’s amended motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). At the hearing Knarieh submitted another pro se motion to disqualify the trial judge based on his purported “extrajudicial political/personal relationship” with Knarich’s mother, Roberta Knarieh. Again, counsel did not join in the motion, and the judge allowed Knarieh to act as co-counsel for that particular motion.

The trial judge then stated his understanding that because it was a successive motion to disqualify, under Florida Rule of Judicial Administration 2.160(g), he was permitted to comment on the allegations in the motion. He proceeded to explain that he had informed the parties at trial in 1999 that he previously had a political acquaintance with Knarich’s mother, but he had absolutely no problem presiding over the matter. At the same time, he asked if either party wanted him to step aside, and neither counsel nor Knarieh asked the judge to recuse himself from the case. The State refers to the foregoing comments and argues that they were not comments on the motion but merely comments on the status of the record, citing Shuler v. Green Mountain Ventures, Inc., 791 So.2d 1213, 1215 (Fla. 5th DCA 2001). We agree. However, the trial judge also explained at length the relationship with Knarich’s mother and why he was not biased. The trial judge then denied the motion to disqualify on the ground that he had no bias toward Knarieh or the State as a result of his relationship with Knarich’s mother; the judge did not rule that the motion was legally insufficient.

Pursuant to rule 2.160, in ruling on a motion to disqualify, the trial judge “shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.” Cave v. State, 660 So.2d 705, 708 (Fla.1995). Here, the trial judge stated his belief that he could comment on the allegations because this was a successive motion by the same party against the same judge. However, in J & J Industries, Inc. v. Carpet Showcase of Tampa Bay, Inc. 723 So.2d 281, 283 (Fla. 2d DCA 1998), this court informed the same trial judge that he had misinterpreted rule 2.160(g) and explained:

The freedom granted to trial judges to “pass on the truth” of the allegations is confined by this subdivision to successor judges, and does not apply to mere successive motions as the unfortunately drafted title to the subdivision might suggest. Here, the trial judge, not a successor judge for purposes of rule 2.160, was forbidden to pass on the truthfulness of the facts alleged.

Again, as in J & J Industries, the trial judge’s “[ajttempts to refute the charges of partiality exceed the scope of inquiry and alone establish grounds for disqualification.” Id.

Although the State contends on appeal that the trial judge could have ruled the motion untimely and legally insufficient, the trial judge did not do so, and even if he had, disqualification would still be required. In Turner v. State, 598 So.2d 186 (Fla. 1st DCA 1992), the trial court considered a motion to disqualify on the merits, and the First District pointed out that even if the trial court had decided the motion was legally insufficient, “his remarks would still have made his disqualification necessary.” Id. at 187. Because the trial judge’s remarks here made his disqualification necessary, we reverse the order denying the motion to disqualify. Based on our disposition of the scoresheet issues, as discussed below, proceedings on remand shall be before a different trial judge.

MILITARY CONVICTIONS AS PRIOR RECORD

Knarich’s sentencing guidelines scoresheet reflects that he received 274.6 points for prior record based on twenty-five prior military offenses that were scored as analogous Florida offenses. The court-martial documents contained in the record on appeal reflect the following: nine convictions under article 125 of the Uniform Code of Military Justice (UCMJ) for sodomy with a child under the age of sixteen years; eleven convictions under article 134 of the UCMJ for indecent liberties with a male under sixteen years of age; one conviction under article 134 for lewd act upon the body of a male under sixteen years of age; two convictions under article 134 for indecent act; and two convictions under article 134 for indecent act upon a male under the age of sixteen years. Knarich committed these prior military offenses between November 1982 and June 1984.

Florida Rule of Criminal Procedure 3.703(d)(15) defines prior record to include convictions by military courts and provides, “Federal, out of state, military, or foreign convictions are scored at the severity level at which the analogous or parallel Florida crime is located.” In Dautel v. State, 658 So.2d 88, 91 (Fla.1995), the Florida Supreme Court held that “only the elements of the out-of-state crime, and not the underlying facts, should be considered in determining whether the conviction is analogous to a Florida statute for the purpose of calculating points for a sentencing guidelines scoresheet.” Knarich appears to argue that this prohibits the trial court from considering the charging document to determine which alternative elements were charged. In its order denying the amended motion to correct sentencing error, the trial court cited Walsh v. State, 606 So.2d 636 (Fla. 5th DCA 1992), Rager v. State, 720 So.2d 1134 (Fla. 5th DCA 1998), and Holybrice v. State, 753 So.2d 621 (Fla. 4th DCA 2000), to support its consideration of the charging document and the final disposition in determining the elements of the prior offense. We agree with the trial court’s conclusion that Dautel does not prohibit consideration of the charging document. We read “underlying facts” to mean, for example, police reports, testimony, or other evidence in the case.

In Rager, the Fifth District cited Dautel for the proposition that no underlying facts could be considered but also noted that at the sentencing hearing “the State admitted it did not have the Ohio amended indictment and that the district attorney’s office in Ohio had nothing more specific regarding Rager’s convictions.” 720 So.2d at 1135. Rager’s conviction did not state to which of the six subsections of the Ohio sexual battery statute Rager had entered his plea. The State also admitted that “it looked to the underlying facts” but the record did not reflect where it obtained those facts. The court recognized the need for this information to determine which subsection of the Florida sexual battery statute was analogous because different subsections were different degree crimes, resulting in different “offense levels,” depending on the circumstances. Id. at 1136-37. The court concluded that the prior Ohio convictions should not have been scored as level nine offenses, but as level one offenses. Id.; see also Fla. R.Crim. P. 3.703(d)(15)(E) (stating that “[w]hen the degree of felony is ambiguous or the severity level cannot be determined, the conviction should be scored at severity level 1”).

In Rager, the court acknowledged that the Ohio amended indictment was unavailable, thus implying that the court would have considered the charging document had it been available. See also Walsh, 606 So.2d at 638 (stating that nothing in the record indicated that the indictment for a federal robbery charge “alleged the usé of a dangerous weapon”). We conclude that the trial court may consider the charging instruments and the judgments to determine if the elements of Knarich’s military convictions are analogous to crimes under the pertinent Florida statutes.

Next, we address Knarich’s contention that the trial court should have compared his military offenses committed between 1982 and 1984 with offenses that were prohibited under Florida law at the time he committed the military offenses, not as the law existed in 1997, the time he committed the Florida offense for which he is now being sentenced. In Dautel, the Florida Supreme Court declined to address this issue, stating, “Dautel argues that the 1983 version of section 800.04, which provides that it is a second-degree felony to commit a lewd or lascivious act on a child under the age of fourteen, is applicable because his Ohio conviction oc-' curred in 1984. Because we find that section 800.04 is not analogous to Ohio’s section 2907.05(A)(2), we need not address this issue.” 658 So.2d at 91 n. 3.

In Witherspoon v. State, 601 So.2d 607, 609 (Fla. 5th DCA 1992), the Fifth District stated, “We assume the Florida statute in effect when Witherspoon committed his Texas robberies is the ‘parallel’ or ‘analogous’ statute referred to by rule 3.701.-d.5(a)(2). But even if the current statute, which breaks robbery into degree crimes is the point of reference, Witherspoon has no valid complaint.” We note that rule 3.701(d)(5)(a)(2) stated, “When scoring federal, foreign, military, or out-of-state convictions, assign the score for the analogous or parallel Florida Statute.” Current rule 3.703(d)(15) is worded slightly differently and states, “Federal, out of state, military, or foreign convictions are scored at the severity level at which the analogous or parallel Florida crime is located.” (Emphasis added). The State argues that the use of the present tense-indicates an intent that the current Florida statute be compared to the out-of-state statute.

In Holybrice v. State, 753 So.2d 621 (Fla. 4th DCA 2000), the court compared a 1993 Georgia statute with a 1997 Florida statute, thus using the Florida law in effect at the time Holybrice committed his Florida offense rather than the statute in effect when he committed the prior Georgia offense. In Holybrice, however, the issue of which version of the Florida statute to use for comparison was not raised. In Snipes v. State, 793 So.2d 1107 (Fla. 1st DCA 2001), the issue again was not addressed, but there the First District used the 1989 Florida statute for comparison, apparently the statute in effect when Snipes committed the prior Ohio burglary.

The State points out that the phrase in rule 3.703(d)(15) that military convictions “are scored at the severity level at which the analogous or parallel Florida crime is located” is written in the present tense. As a result, the State argues that the rule requires a comparison of Knarich’s prior military offenses to offenses under the Florida laws that were in effect when Kna-rich committed the crime for which he is currently being prosecuted. The State concludes that a 1983 military conviction should be compared to an analogous crime contained in the 1997 statutes.

We cannot agree. Applying a common sense interpretation to the language used in rule 3.703(d)(15), if a court is trying to compare a 1983 military offense to a crime under Florida law, the most “analogous or parallel Florida crime” would be a crime that was proscribed under Florida law in 1983. The description of that crime is located, and indeed will forever be located, in that version of the Florida Statutes that proscribes conduct occurring in 1983. Thus, if a 1983 Florida offense is analogous to a 1983 military offense, the offense is scored as prior record; then, the prior record is scored at the severity level shown on the current sentencing guidelines scoresheet. See Contreras v. State, 749 So.2d 524 (Fla. 2d DCA 1999) (concluding that it was proper to score prior record points based on guidelines in effect at the time of sentencing on the current offense).

By way of example, the State seeks to compare 1983 and 1984 military convictions to the Florida sexual performance by a child statute. However, that statute, section 827.071, Florida Statutes, did not become effective until October 1, 1983, after Knarich had committed several of his military offenses. See Ch. 83-75, § 6 at p. 247, Laws of Fla. In addition, in 1983 the lewd and lascivious statute, section 800.04, required that the child be under the age of fourteen years. The State used the 1997 version which requires that the child be under the age of sixteen years for purposes of comparison with Knarich’s convictions for sodomy with a child under the age of sixteen years. Thus, it appears that the State would not have been able to score many of the prior military offenses as prior record had the State used the Florida Statutes in effect at the time of the military offenses.

In summary, we conclude that the trial court erred by comparing Knarich’s 1982 to 1984 military offenses to offenses that were prohibited under Florida law at the time that Knarich committed his 1997 Florida offense. Instead, Knarich’s military offenses must be compared to offenses that were contained in the Florida Statutes that were in effect at the time the military offenses were committed. Therefore, we reverse Knarich’s sentence and remand for the trial court to resentence him after considering his prior record based on a comparison of Florida offenses in effect when he committed the prior military offenses.

VICTIM INJURY POINTS

Knarich also argues that forty victim injury points should not have been scored for sexual contact based only on his touching of the victim’s buttocks. Section 921.0021(7)(b), Florida Statutes (1997), provides for victim injury points to be scored for “sexual contact that does not include sexual penetration,” but the statute does not define sexual contact. To support his argument, Knarich relies upon Borjas v. State, 790 So.2d 1114 (Fla. 4th DCA 2001), and Clark v. State, 808 So.2d 231 (Fla. 4th DCA 2001), in which the Fourth District held that fondling a person’s buttocks does not constitute sexual contact for purposes of scoring victim injury points. In both cases the Fourth District certified conflict with Seagrave v. State, 768 So.2d 1121 (Fla. 1st DCA 2000), approved in part, 802 So.2d 281 (Fla.2001). We agree with the First District in Seagrave that fondling a person’s buttocks can be scored as sexual contact. The Florida Supreme Court did not reach this question, but it did hold that victim injury points for sexual contact are not limited “to instances where there was a union of the sexual organ of one person with the oral, anal, or vaginal opening of another.” Seagrave, 802 So.2d at 291. In Altman v. State, 852 So.2d 870, 874 (Fla. 4th DCA 2003), the Fourth District stated that the supreme court’s opinion in Seagrave indicates a “more expansive interpretation of ‘sexual contact,’ which takes into account the wide range of activity proscribed by the lewd and lascivious statute.” In Altman, the court determined that French-kissing a six-year-old constituted sexual contact in the case of a lewd assault conviction under section 800.04(1). Id. at 875-76.

Here, Knarich was charged with handling or fondling a child under sixteen years of age “in a lewd, lascivious, and indecent manner, to wit: by placing the hand of [Knarich] on and rubbing the buttocks of [the victim], said act being willfully and knowingly done in a lewd, lascivious and indecent manner.” In Altman, ■ the court recognized that “the terms ‘lewd,’ ‘lascivious,’ and ‘indecent’ connote a ‘wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator.’ A conviction under the lewd assault statute is proper if the evidence reveals ‘a lustful or sensual purpose’ on the part of the defendant in committing the assault.” Id. at 874 (quoting Boles v. State, 158 Fla. 220, 27 So.2d 293, 294 (1946)). Knarich was convicted for handling or fondling the victim’s buttocks in a lewd and lascivious manner. Based on the definition of lewd and lascivious, we conclude that a conviction based on fondling a child’s buttocks in a lewd and lascivious manner supports the scoring of victim injury points for sexual contact.

APPRENDI

Knarich received a thirty-five year sentence on a second-degree felony, which has a statutory maximum of fifteen years’ imprisonment. See §§ 775.082(3)(e), 800.04, Fla. Stat. (1997). He argues that the jury failed to make a specific finding of sexual contact as required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). “Where the addition of victim injury points is a factor which causes a sentence to be increased beyond the statutory maximum, the facts of victim injury must be submitted to a jury pursuant to Apprendi.” Gisi v. State, 848 So.2d 1278, 1282 (Fla. 2d DCA 2003). The State responds that Apprendi is not retroactive and does not apply here, and that, in any event, the jury’s verdict was a sufficient finding to support the scoring of sexual contact points.

We recognize that the Apprendi issue may be moot if, on resentencing, Knarich does not receive a sentence in excess of the fifteen-year statutory maximum. However, for the guidance of the parties and the trial court on remand, we make the following observations.

First, with respect to the State’s argument regarding retroactivity, we note that Knarich’s sentence has never become final. He was originally sentenced in 1999, and his direct appeal was pending when Ap-prendi was decided. His case is now on direct appeal of his resentencing, and he raised the Apprendi issue in the trial court via rule 3.800(b)(2). Because his case is in the “pipeline” and he has preserved the issue for review, Knarich may raise the Apprendi issue. See Mitchell v. Moore, 786 So.2d 521, 530 n. 8 (Fla.2001) (recognizing that the “pipeline” theory allows a defendant to seek application of a new rule of law if the ease is pending on direct review or not yet final and the defendant timely objected in the trial court if an objection was necessary to preserve the issue for appellate review).

Second, if the jury was properly instructed, then it necessarily had to find sexual contact as an element of the offense in order to find Knarich guilty of handling or fondling a child under sixteen years of age in a lewd and lascivious manner. Cf. McCloud v. State, 803 So.2d 821, 829 (Fla. 5th DCA 2001) (en banc) (Harris, J., concurring. in part and dissenting in part) (recognizing that penetration was an alternative element of sexual battery and that a general verdict is insufficient to show a jury finding that penetration occurred when the jury could have convicted based on penetration or contact), review denied, 821 So.2d 298 (Fla.), and cert. denied, 537 U.S. 1036, 123 S.Ct. 553, 154 L.Ed.2d 455 (2002). The verdict form reflects that the jury found Knarich guilty of “Handling or Fondling a Child under the Age of Sixteen Years, as charged.” Knarich was charged with handling or fondling a child under sixteen years of age in a lewd and lascivious manner, in violation of section 800.04(1), Florida Statutes (1997).

As discussed above concerning victim injury points, the fact that the act was done in a lewd and lascivious manner necessarily means that it was sexual in nature. See Altman, 852 So.2d at 874. Additionally, handling or fondling was required to sustain Knarich’s conviction, and handling or fondling, by definition, necessarily involved contact between Knarich and the victim. Thus, if the jury was properly charged that the handling or fondling had to be done in a lewd and lascivious manner, the verdict is a sufficient jury finding of sexual contact to meet the requirements of Apprendi.

For the foregoing reasons, we reverse Knarich’s sentence for handling and fondling a child under sixteen years of age and remand for resentencing before a different trial judge.

Reversed and remanded.

FULMER and CASANUEVA, JJ., Concur.

      . The jury instructions are not contained in our record on appeal, and our record does not disclose whether the jury had the charging document before it.


author: NORTHCUTT, Judge.

text:
    STATE of Florida, Appellant, v. Jason PARKS, a/k/a Steven Charles, a/k/a Sheridan Lewison, Appellee.
    No. 2D02-4899.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2004.

      Charles J. Crist, Jr. Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellee.
   NORTHCUTT, Judge.

We reverse the dismissal of Jason Parks’s prosecution on statute of limitations grounds. Parks was arrested on February 24, 1998, for aggravated assault and discharging a firearm within the city limits. He was released on bond the same day. In April 1998, the State charged Parks for the incident, filing an information for discharging a firearm within 1000 feet of a person, a second-degree felony. See § 790.15(2), Fla. Stat. (1997). A capias was issued on April 29, 1998, when Parks failed to appear for a scheduled hearing. He was not apprehended until September 14, 2002. On Parks’s motion, the circuit court dismissed the charge on the ground that the State failed to prosecute within the three-year statute of limitations. See § 775.15(2)(b), Fla. Stat. (1997).

The circuit court dismissed the case because it found the State had made no effort to locate Parks between March 1998 and September 2002. In doing so, the court relied on a number of decisions interpreting the pre-1997 version of section 775.15(5), which required the State to show that the capias, summons, or other process issued on the information had been executed without unreasonable delay. See, e.g., Sutton v. State, 784 So.2d 1239 (Fla. 2d DCA 2001) (interpreting 1995 version of section 775.15(5)); Lewis v. State, 765 So.2d 163 (Fla. 2d DCA 2000) (same). But the statute was amended effective July 1, 1997. Ch. 97-90, § 7, at 521, Laws of Fla. Parks allegedly committed his crime in 1998; therefore the amended 1997 version applies.

The applicable version of section 775.15(5) provides:

(a) Prosecution on a charge on which the defendant has previously been arrested or served with a summons is commenced by the filing of an indictment, information, or other charging document.
(b) A prosecution on a charge on which the defendant has not previously been arrested or served with a summons is commenced when either an indictment or information is filed, provided the capi-as, summons, or other process issued on such indictment or information is executed without unreasonable delay....

§ 775.15(5).

The 1997 amendment added subsection (a) to section 775.15(5) and changed the way prosecution is commenced for defendants who have been arrested or served with a summons on the charged offense before an information is filed. In that situation, the 1997 statute no longer requires that process be executed without unreasonable delay; the prosecution simply begins on the date the information is filed. See, e.g., Asphalt Pavers, Inc. v. Dep’t of Revenue, 584 So.2d 55, 57-58 (Fla. 1st DCA 1991) (“[I]t is a recognized principle of statutory construction that when the legislature amends a statute by omitting or including words, it is to be presumed that the legislature intended the statute to have a different meaning than that accorded it before the amendment.”) (citing Capella v. City of Gainesville, 377 So.2d 658 (Fla.1979)); Dep’t of Commerce, Div. of Employment Sec. v. Hart, 372 So.2d 174, 176 (Fla. 2d DCA 1979).

Parks was arrested for discharging a firearm in February 1998. Therefore, under the 1997 version of section 775.15(5), prosecution on this charge commenced when the information was filed two months later, well within the statutory limitations period. The circuit court’s analysis of whether the State served the capias without unreasonable delay simply was not pertinent to these facts. See § 775.15(5)(a); see also Starling v. State, 799 So.2d 425, 427 n. 2 (Fla. 5th DCA 2001) (noting .that if the 1997 version of section 775.15(5) had been applicable, the defendant’s prosecution would have commenced upon the filing of the information because he had been first arrested on the charge).

We reverse the dismissal of the charge and the discharge of Parks, and we remand with directions to reinstate the prosecution.

STRINGER and DAVIS, JJ., Concur.

      . On appeal, Parks's counsel claims that the State did not raise the applicability of the 1997 version of section 775.15(5) at the hearing on the motion to dismiss. The transcript of the hearing refutes this contention.


text:
    Annette ROOSS, Petitioner, v. Kurt R. MAYBERRY, M.D., et al., Respondent.
    No. 5D03-3248.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.

      Susan S. Lerner of Josephs, Jack & Miranda, P.A., Miami, for Petitioner.
    Gina M. Sansone and Pierre J. Seacord of Ringer, Henry, Buckley & Seacord, P.A., Orlando, for Respondent Kurt R. Mayberry, M.D.
    Rafael E. Martinez and Richard L. Barry, of McEwan, Martinez & Dukes, P.A., Orlando, for Respondents Ernesto Cortes-Belen, M.D. and Florida Emergency Physicians-Kang & Associates, M.D., P.A.
    Larry D. Hall and Brian L. Smith of Hill, Adams, Hall & Schieffelin, P.A., Winter Park, for Respondents Florida Hospital d/b/a Celebration Health.
   SHARP, W., J.

Rooss petitions this court for certiorari review of the trial court’s order which granted the respondents’ (Celebration Health, emergency room physicians Kurt Mayberry and Ernesto Cortes-Belen, and Florida Emergency Physicians Kang and Associates, M.D., P.A.) motion to bifurcate a medical malpractice action as to liability and damage issues, but denied respondents’ motion to stay discovery on the damage issues. We grant the writ because it appears the liability and damages issues are necessarily intertwined and any argument for the bifurcation based on inconvenience of travel to Germany to depose witnesses and translations of medical records is without merit given the court’s denial of a respondent’s motion to stay discovery on damages.

The record establishes that Rooss is a resident of Germany who was on a holiday in the Orlando area on November 12,1999. Experiencing severe abdominal pain, fever, nausea and vomiting, Rooss went for treatment to the Celebration emergency room. After examining her and taking various tests, the doctors discharged her. One said she did not have an appendix problem. They prescribed pain and nausea medication and advised Rooss to follow up with her German doctor upon returning to Germany. The medications allegedly masked her continuing and worsening medical condition.

Rooss returned to Germany on November 16,1999. She made an appointment to see her family doctor, but before the appointment time she was forced by her then severe medical condition to check herself in at a German hospital on November 21, 1999. The diagnosis was a ruptured appendix, approximately five or six days old. She experienced multiple critical medical problems, including septic shock, early stage multiple organ failure, and after surviving that, multiple surgeries, leaving her with permanent disabilities.

Respondents argue that the liability issues should be tried first, separate from the damage issues, because the damage issues require extensive discovery and trial preparation in Germany, whereas the liability issues could be narrowed primarily to testimony involving Rooss’ treatment in Florida at Celebration. They do not rely on “prejudice” as a ground for bifurcation. Florida Rule of Civil Procedure 1.270(b) allows for the bifurcation for trial of cases “in furtherance of convenience or to avoid prejudice.” And in general, a trial court has broad discretion to bifurcate cases in the interest of effective judicial administration. See Bernstein v. Dwork, 320 So.2d 472 (Fla. 3d DCA 1975), cert. denied, 336 So.2d 599 (Fla.1976).

In this case, the ground the trial judge relied upon in granting the motion to bifurcate was the claimed substantial expense that will have to be incurred in requiring the parties to travel to Europe for discovery purposes relating to the damage issue. But the court did not stay discovery on damages issues in Germany. This discovery will no doubt go forward in any event, primarily because it simply is not possible in this case to separate the issues of causation and liability from damages.

The testimony of Rooss’ health care providers in Germany is necessary and relevant to both issues. Respondents seek to prove as defenses that all of Rooss’ injuries that ensued in Germany were caused by herself or her pre-existing/congenital condition, or in part or full by the negligent care she received in Germany. Rooss’ subsequent diagnosis and treatment in Germany will have an evidentiary bearing on the basis of the liability claim.

Respondents also assert the statute of limitations expired before Rooss filed her notices of intent to sue. This will necessarily involve resolution of the issue of when Rooss should be charged with notice of her cause of action against the respondents, based on her awareness of her medical condition in Germany. That also will require the testimony of her German health-care providers and her German medical records.

Rather than saving time and money as urged by respondents in this case, it appears the effect of the bifurcation order would be to convert what should have been one trial into two, with much duplicative testimony from the same medical witnesses. See Microclimate Sales Co., Inc. v. Doherty, 731 So.2d 856, 858 (Fla. 5th DCA 1999). In this case, as in most medical malpractice cases, there is an intertwining of evidence relating to both the damage and causation issues. Bifurcation is not likely to promote convenience or judicial efficiency and because the issues of damages and causation in this case are related and necessarily have an “important bearing” on one another, a unified trial is required to affect substantial justice. See Dobress v. North Shore University Hospital, 178 Misc.2d 205, 678 N.Y.S.2d 870, 871 (1998).

Petition for Writ of Certiorari GRANTED; Order to Bifurcate QUASHED.

PETERSON and ORFINGER, JJ., concur.

      . § 766.106, Fla. Stat.


author: PALMER, J.

text:
    Darlene A. THORNBURG f/k/a Darlene A. Donovan, Petitioner, v. Scott A. DONOVAN, Respondent.
    No. 5D03-3882.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.

      Susan M. Wilson of Akerman Senterfitt, Tampa, for Petitioner.
    Robert M. Grguric of Thomas R. Olsen, P.A., Orlando, for Respondent.
   PALMER, J.

Darlene A. Thornburg (“mother”) has filed a petition for a writ of prohibition seeking to prohibit the Seminole County circuit court from exercising jurisdiction over a supplemental complaint filed by respondent, Scott Donovan (“father”). The supplemental complaint sought modification of the parties’ final dissolution judgment previously entered in the Pasco County circuit court. Concluding that the Seminole County circuit court lacks jurisdiction over this supplemental complaint as to issues concerning one of the parties’ minor children, we grant the petition in part.

The parties obtained a final judgment of dissolution in 1997 from the circuit court in Pasco County. The mother was awarded primary residential custody of the parties’ two children. The father thereafter relocated to Seminole County, and the mother relocated to Hillsborough County. In 2001, based on an informal agreement between the parties, the parties’ older son began residing with the father. Their younger son continued to reside with the mother in Hillsborough County.

In 2002, the mother filed a pro se motion in the Pasco County circuit court requesting that her child support payments be automatically deducted from the father’s paycheck due to father’s alleged delinquency in making same. The father, through counsel, responded by filing a motion to transfer jurisdiction of the matter to Seminole County for the convenience of the parties and in the interest of justice, alleging that he intended to seek modification of the final judgment as to primary residential custody of the older son. The motion made no mention of any issues relating to the custody of the younger son.

A month later, the mother agreed to transfer her child support case to the Seminole County circuit court. At that time, she was not represented by counsel and understood that the only issues between the parties were child support and custody of the older son. However, unbeknownst to the mother, a month earlier the father, through counsel, had filed a supplemental complaint for modification of the final dissolution judgment in the Pasco County circuit court. In that complaint the father sought to obtain primary residential custody of both children. A copy of the complaint was not served on the mother until a month after the mother had agreed to transfer her child support case to Seminole County. Once the case was transferred, the father’s attorney had a summons issued and served the supplemental complaint seeking custody of both children on the mother. The mother immediately obtained legal counsel, who filed a motion to dismiss the father’s supplemental complaint for lack of subject matter jurisdiction and improper venue, arguing that under section 61.13(2)(c) of the Florida Statutes (2003) the Seminole County circuit court lacked jurisdiction to hear the complaint since it was seeking modification of custody as to the younger son. The trial court denied the motion, and the mother therefore filed the instant petition for writ of prohibition. We conclude that prohibition relief is appropriate in this case because the Seminole County circuit court lacks jurisdiction to rule on any custody issues relating to the younger son.

Prohibition is an extraordinary writ which is narrow in scope and must be employed with caution and used only when there is no other appropriate and adequate remedy. See Mandico v. Taos Const., Inc., 605 So.2d 850, 854 (Fla.1992); O’Donnell’s Corp. v. Ambroise, 858 So.2d 1138 (Fla. 5th DCA 2003).

Section 61.13(2)(c), Florida Statutes (2002), provides, in relevant part:

61.13 Custody and support of children; visitation rights; power of court in making order.—
[2](c)The circuit court in the county in which either parent and the child reside or the circuit court in which the original award of custody was entered have jurisdiction to modify an award of custody.

The younger son has never lived in Seminole County, nor was the original custody award entered by a Seminole County circuit court judge. Accordingly, the Seminole County circuit court lacks the authority to review issues relating to his custody. See Pitt v. Benzenhafer, 843 So.2d 1021 (Fla. 2d DCA 2003)(holding that the county where the husband resided and filed a petition for modification did not have jurisdiction because the child never resided there); see also DeMauro v. DeMauro, 737 So.2d 566 (Fla. 3d DCA), review denied, 749 So.2d 502 (Fla.1999)(holding that Dade County could not exercise jurisdiction over mother’s petition for modification of custody where custodial father and children resided in Monroe County where the original award of custody was entered).

Importantly, the mother’s stipulation to transfer the matter to Seminole County did not waive jurisdiction as to issues relating to custody of the younger son since the proper forum for modification of child custody is a question of subject matter jurisdiction, not personal jurisdiction or venue, and subject matter jurisdiction cannot be waived, nor created, by consent or agreement of the parties. See Morales v. Salazar, 833 So.2d 226 (Fla. 5th DCA 2002).

Petition for writ of prohibition GRANTED as to all issues related to the custody of the younger son.

SAWAYA, C.J., and ORFINGER, J., concur.

      . Having found that subject matter jurisdiction cannot be created by consent or agreement of the parties, it is unnecessary for us to reach the mother’s alternative argument that equitable estoppel would preclude the father from relying on the stipulation. However, since the motion to transfer jurisdiction was presented to the court in Pasco County without disclosure of the father’s pending (but unserved) supplemental complaint for modification as to both children, we are providing a copy of this opinion to the Florida Bar for its determination as to whether the conduct of father's attorney with regard to the transfer to Seminole County violated The Florida Bar’s Rules of Professional Conduct.

      . We note that, given the current wording of section 61.13(2)(c), Florida Statutes, only the circuit court in Pasco County would appear to have jurisdiction over both children. Accordingly, the possibility exist that the parties child custody disputes involving both children could result in inconsistent results if such disputes are presented in parallel proceedings in different circuit courts. Any circuit court involved in this dispute should take that fact into consideration when ruling on any motion to transfer venue which is properly directed to it.


author: SAWAYA, C.J.

text:
    STATE of Florida, Appellant, v. Edwin MANN, Appellee.
    No. 5D02-3814.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellánt.
    Marc L. Lubet of Marc L. Lubet, P.A., Orlando, for Appellee.
   SAWAYA, C.J.

The State appeals the imposition of a downward departure sentence following the guilty plea entered by Edwin Mann to three counts of lewd or lascivious battery and one count of lewd or lascivious molestation. The guidelines scoresheet in the instant case required a minimum sentence of 26 years’ incarceration in the Department of Corrections. Mann was sentenced to two years of community control concurrently on each count followed by 25 years of probation. The issue we must resolve is whether the reasons set forth by the trial court as the basis for the downward departure are legally valid and supported by competent, substantial evidence. Because it is not necessary for us to give further details of the crimes Mann committed against the fourteen-year-old victim in order to resolve this issue, we will proceed to analyze the record in the instant case and the law regarding departure sentences.

The Florida Legislature has enacted a rather elaborate body of sentencing laws that establish guidelines for the imposition of sentences in criminal cases involving felony offenses. Under this statutory scheme, the trial court must at least impose the minimum sentence required under the guidelines unless a valid basis for a departure sentence is established. § 921.00265(1), Fla. Stat. (2002). In order to determine whether a departure sentence below the minimum sentence required under the guidelines is appropriate, the trial court must follow a two-step process. Banks v. State, 732 So.2d 1065 (Fla.1999). First, the trial court must determine whether there is a valid legal basis for the departure sentence that is supported by facts proven by a preponderance of the evidence. Banks; § 921.001(4)(a)6., Fla. Stat. (2002) (“The level of proof necessary to establish facts that support a departure from the sentencing guidelines is a preponderance of the evidence.”). The burden of proof lies with the defendant. See State v. Silver, 723 So.2d 381 (Fla. 4th DCA 1998). This step involves mixed questions of law and fact. Banks. Therefore, in reviewing this determination, an appellate court must decide whether the trial court applied the correct rule of law, and whether competent substantial evidence supports the basis for the departure. Id. Because competent substantial evidence equates to legally sufficient evidence, the appellate court will assess the evidence to determine its sufficiency, not its weight. Id.

If the requirements of step one are met, the second step in the analysis requires the trial court to determine whether a departure sentence is the best sentencing option for the defendant by weighing the totality of the circumstances in the case, including the aggravating and mitigating factors. Id. This part of the process is reviewed pursuant to the abuse of discretion standard of review, which requires the appellate court to sustain the trial court’s determination unless no reasonable person would agree with the trial court’s decision. Id.

The basis for the departure sentence should be articulated by the trial court in writing. See §§ 921.001(4)(a)6., .00265(2), Fla. Stat. (2002). However, if the trial court fails to do so, a downward departure sentence may be affirmed if the trial court orally pronounces on the record a valid basis for the sentence. Pease v. State, 712 So.2d 374 (Fla.1997); see also Fla. R.Crim. P. 3.704(d)(27)(A). Here, the trial court did not render written findings regarding his reasons for the departure sentence, so we must examine the sentencing transcripts to determine whether the trial court orally announced a valid basis for the sentence.

Section 921.0026(2)(a)-(Z), Florida Statutes, is a list of mitigating circumstances that justify a departure from the sentencing guidelines. Because this list is nonexclusive, case-law may also provide valid grounds for a departure sentence. Banks. Of the statutory mitigators, our review of the record shows, and Mann argues in these proceedings, that the trial court relied on two. The first basis is that, pursuant to section 921.0026(2)(d), Mann requires specialized treatment for a mental disorder for which he is amenable to treatment. The second basis is that, pursuant to section 921.0026(2)(j), Mann committed the offenses in an unsophisticated manner and these were isolated offenses for which he has shown remorse.

In order to establish that he required specialized treatment for a mental disorder, Mann called Dr. Grecco, who testified that Mann suffered from dysthymia, a depressive disorder, and suffered with post-traumatic stress disorder with delayed onset, a condition described as occurring when a person has undergone a traumatic event at some point in life, repressed the event, then had the emotion triggered by some new event. Mann had been sexually abused as a child and, according to Grecco, working as a sex crimes investigator and reviewing thousands of hours of child pornography several months before the offenses in the instant case reactivated the trauma, confusion, and shame Mann felt about his own abuse. Dr. Grecco further opined that although Mann tried to deal with his feelings, he was emotionally fragile. Mann’s acquaintanceship with the victim developed into an emotional relationship after the girl repeatedly sought him out for advice. Mann reported that at the time, he viewed himself and the girl as equals while “in the full flush of feeling in love.... ” Dr. Grecco did admit that “at some level,” Mann knew that what he was doing was wrong at the time. Mann argues that this testimony established that he suffers from a mental disorder that requires specialized treatment.

Mindful as we are of the standard of review that prohibits us from weighing the credibility of this doctor’s testimony, we simply quote the trial judge, who said that “[m]ost of what the first psychologist [Dr. Grecco] said was dumb and I disregard it.” We also note the State’s strong reservations whether this doctor’s testimony even established a mental disorder. But beyond establishing a mental disorder, Mann was required to establish that he suffers from a mental disorder that requires specialized treatment. This court and others have held that in order to establish the need for specialized treatment, it must be established that the mental disorder requires treatment that is not available in the Department of Corrections. See State v. Porche, 826 So.2d 1062 (Fla. 2d DCA 2002); State v. Tyrrell, 807 So.2d 122 (Fla. 5th DCA 2002); State v. White, 755 So.2d 830 (Fla. 5th DCA 2000); State v. Thompson, 754 So.2d 126 (Fla. 5th DCA 2000); State v. Stewart, 749 So.2d 555 (Fla. 2d DCA 2000); State v. Abrams, 706 So.2d 903 (Fla. 2d DCA 1998). Assuming that Mann does suffer from a mental disorder, there has been no showing that he requires specialized treatment that is not available in the Department of Corrections.

We now turn our attention to the second statutory mitigator relied on as a basis for the downward departure sentence. Pursuant to section 921.0026(2)(j), the trial court may consider as a basis for a departure sentence the fact that the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. “To support a departure based on this reason, all three elements must be shown: that the offense was committed in an unsophisticated manner, that it was an isolated incident, and that the defendant has shown remorse.” State v. Falocco, 730 So.2d 765, 765 (Fla. 5th DCA 1999) (citations omitted); see also Staffney v. State, 826 So.2d 509 (Fla. 4th DCA 2002). The State specifically argues that even if Mann was genuinely remorseful, there was no evidence that he committed the offenses in an unsophisticated manner or that they were an isolated incident.

We conclude that this basis for departure is not supported by the evidence. While the record indicates that Mann may have been remorseful, there is no evidence that he committed the offenses in an unsophisticated manner. He was, as the State points out, a sex crimes investigator employed by the Orlando Police Department and he was thirty-nine years old when he became involved with the fourteen-year-old victim. See State v. Bernard, 744 So.2d 1134, 1135 (Fla. 2d DCA 1999) (“Although the inference to be drawn from the defendant’s lack of prior record is that this was an isolated incident, Mr. Bernard was 24 years of age at the time he committed the crime and it might be difficult, if not impossible, to prove that he had sexual intercourse with this child in an unsophisticated manner.”). Furthermore, although there is no evidence that Mann had ever committed such offenses with any other child, the information charged him with committing the instant offenses on various dates. For example, Mann was charged with, and pleaded guilty to, having intercourse with the victim on October 19, 2000, and the remaining acts were committed between August 1, 2000, and April 3, 2001. Not only is there no factual support for Mann’s conclusion that his crimes were the result of an isolated incident, based on the record before us, to argue this as a basis for a departure sentence defies logic and common sense.

We note that the record contains innumerable citations and awards presented to Mann for outstanding performance in his job and for assisting his community, and letters from citizens whose lives he touched in a positive manner. The binder containing these accolades is more than two inches thick and this evidence certainly has not escaped our attention. Perhaps, as he so persuasively argued to the trial court, Mann once may have been a pillar of his community. But much like other structures, pillars are subject to erosion and some eventually crumble. Here, the eroding force was Mann’s own self-indulgent sexual desire for a fourteen-year-old child with whom he may have actually thought he was in love. As is well-established in this record, Mann is an individual who knew better and realized that what he was doing was very wrong.

The trial court obviously felt justified in imposing a sentence more lenient than allowed under the sentencing guidelines. But judicial leniency, if that is what we call reliance on mitigating factors to reduce a guidelines sentence, only functions within prescribed parameters of the sentencing law and the rules adopted to implement them. These laws and rules clearly provide that downward departure from the sentencing guidelines is prohibited “unless there are circumstances or factors that reasonably justify the downward departure.” Fla. R.Crim. P. 3.704(d)(27). As virtuous as Mann once may have been, we are inexorably drawn to the conclusion that he failed to present sufficient evidence to adequately prove the existence of circumstances or factors that would allow him a departure sentence. Accordingly, we reverse Mann’s sentence and remand this case to the trial court for resentencing. See State v. Teal, 831 So.2d 1254 (Fla. 2d DCA 2002).

REVERSED AND REMANDED.

PLEUS and ORFINGER, JJ., concur.

      . Although Mann attempts to argue nonstatu-tory factors in support of his sentence, our review of the record clearly shows that they are not legal grounds for a departure sentence supported by substantial competent evidence. Hence, we will confíne our analysis to the two statutory mitigators identified in the record and argued by Mann in support of his sentence.


author: MONACO, J.

text:
    Delia RODRIGUEZ and Frank Rodriguez, Appellants, v. Carlos B. SAENZ, M.D., and Florida Heart Group, Appellees.
    No. 5D03-1902.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.
    Gregorio A. Francis of Morgan, Colling & Gilbert, P.A., Orlando, for Appellants.
    Martin B. Unger and Ernest J. Myers of Unger, Aeree, Weinstein, Marcus, Merrill, Kast & Metz, P.L., Orlando, for Appellees.
   MONACO, J.

This appeal from a final summary judgment in favor of the defendants below causes us to examine an issue regarding the commencement of the statute of limitations period for medical malpractice actions brought pursuant to Chapter 766, Florida Statutes. Because we conclude that the date of the commencement of the statute of limitations is, under the facts of this case, an issue of fact that should be left to the consideration of a jury, we reverse.

One of the appellees, Dr. Saenz, began treating appellant Delia Rodriguez, a 62-year old woman with two years of high school education, in February of 1999, because an electrocardiogram (“EKG”) that she was given showed certain abnormalities. Mrs. Rodriguez had a family history of heart disease, and had smoked cigarettes for 48 years. Dr. Saenz is a physician specializing in cardiology in a professional association named the Florida Heart Group (“FHG”), the other appellee in this case. Mrs. Rodriguez had been referred to FHG for a cardiac evaluation because of the abnormal EKG, and Dr. Saenz was assigned to perform the evaluation. The EKG that was the basis for the referral indicated to Dr. Saenz that Mrs. Rodriguez had suffered a heart attack at some earlier time.

During her initial visit, Dr. Saenz ordered another EKG and a stress test. As both tests were abnormal, and confirmed that Mrs. Rodriguez had, in fact, experienced a myocardial infarction, Dr. Saenz prescribed medication, but did not prescribe for her, or discuss with her, a heart catheterization. His notes indicate, however, that she was symptomatically improved while taking the prescribed medications.

On April 2, 1999, Mrs. Rodriguez was admitted to Florida Hospital, having endured a second heart attack, and cardiac bypass surgery was performed on her the next day. Mrs. Rodriguez continued her course of treatment with Dr. Saenz for some time subsequent to her second heart attack, but ceased doing so on November 8, 1999. She testified on deposition that she continued to have confidence in Dr. Saenz after her second heart attack, but that her confidence in him ceased in October or November of 1999.

At about that time Mrs. Rodriguez had a conversation with two of her relatives regarding the care afforded her by Dr. Saenz. During this conversation, her daughter and sister (who also had a history of cardiac disease), suggested to Mrs. Rodriguez that based on her previous test results, Dr. Saenz should have performed a cardiac catheterization, and that her second heart attack would have been prevented had he done so. Mrs. Rodriguez testified in her deposition that this conversation was the first time she suspected Dr. Saenz of being negligent. She additionally testified that it was her belief that Dr. Saenz was not interested in her case because she was unable to afford insurance, and that his course of treatment was geared around her lack of insurance. She said that she understood her condition to be serious because of her previous heart attack, and that prior to her second heart attack her condition was deteriorating, and the tightness in her chest was worsening.

Mrs. Rodriguez filed a petition to extend the statute of limitations pursuant to section 766.104(2), Florida Statutes (2001), on January 17, 2001. The appellees, Dr. Saenz and FHG, were served with a Notice of Intent by Mrs. Rodriguez and her husband on October 1, 2001. Three weeks later Dr. Saenz and FHG responded to the Notice of Intent claiming they would investigate the claim, but felt that the statute of limitations had expired. They requested an extension of the ninety-day presuit investigation period, but ultimately denied the claim on February 1, 2002. Mr. and Mrs. Rodriguez filed their complaint seeking damages for medical malpractice on March 12, 2002.

After the complaint was amended Dr. Saenz and FHG answered and raised the statute of limitations as an affirmative defense. The depositions of Mrs. Rodriguez and Dr. Saenz were thereafter taken, and Dr. Saenz and FHG then moved for summary judgment, asserting that there was no genuine issue of material fact that the statute of limitations had run, and that they were, therefore, entitled to a judgment as a matter of law. Neither party filed affidavits in support of or against summary judgment. Rather, both sides relied on the deposition transcripts of Ms. Rodriguez and Dr. Saenz to support their respective positions with respect to the motion.

Dr. Saenz and FHG argued at the motion hearing that Mrs. Rodriguez had to have known of the possibility of medical negligence either when she had her second heart attack, or when she had her next office visit with Dr. Saenz. Mr. and Mrs. Rodriguez argued that the actual date Mrs. Rodriguez was deemed to have knowledge of the possibility of medical malpractice was a question of fact for a jury to decide, and that summary judgment was not appropriate.

The trial court granted the motion of Dr. Saenz and FHG for summary judgment. In its order the trial court analyzed the arguments of the parties, compared it to the case law, and concluded that the defense of statute of limitations was well taken. The order stated:

In sum, there is no genuine factual dispute about when the statute of limitations began to run. It started on April 2, 1999, and ran out on July 1, 2001. There is no reason attributable to the nature of the injury, treatment, or available information that would excuse the filing of the notice of intent to sue more than two months after the limitations period expired.' Since there are no material facts in dispute and Plaintiffs’ position is legally unsupportable, Defendants are entitled to summary judgment.

Mr. and Mrs. Rodriguez timely appealed.

The path of the law around summary judgment is well beaten, and needs little explication. A party moving for summary judgment has the burden of demonstrating that there is no genuine issue as to any material fact, and that the movant is entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Holl v. Talcott, 191 So.2d 40 (Fla.1966). In addition, the movant must overcome any reasonable inferences, doubts and conclusions, all of which are to be liberally construed in favor of the party opposing summary judgment. See Johnson v. Studstill, 71 So.2d 251 (Fla.1954); Smith v. Harr, 571 So.2d 575 (Fla. 5th DCA 1990). In short, unless the facts are so crystallized that only questions of law remain, summary judgment is inappropriate. See Bess v. 17545 Collins Ave., Inc., 98 So.2d 490 (Fla.1957); Smith. That is not the case here.

We begin with the law governing the statute of limitations in medical negligence cases. Section 95.11(4)(b), Florida Statutes (2001), reads in pertinent part as follows:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence ... An “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnoses, treatment, or care by any provider of health care.

This statute was initially explored by the Florida Supreme Court in Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). The court there held that the statute of limitations begins to run when the plaintiff knew or should have known that either the injury or the negligence had occurred. See also Barron v. Shapiro, 565 So.2d 1319 (Fla.1990). Later in Tanner v. Hartog, 618 So.2d 177 (Fla.1993), however, the high court decided to ameliorate the “harsh results” of this position by holding that “knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice.” Tanner, 618 So.2d at 181. The court then explained further that the nature of the injury alone may in some cases be such that it communicates the possibility of medical negligence, in which case the limitations period would begin to run immediately upon discovery of the injury. In other cases, however, “if the injury is such that it is likely to have occurred from natural causes, the statute will not begin to run until such time as there is reason to believe that medical malpractice may possibly have occurred.” Id. at 182. Finally, the court then recognized that its holding would make it more difficult to decide as a matter of law when the limitations period begins to run, “and may often require a fact-finder to make that determination.” Id. See also Cunningham v. Lowery, 724 So.2d 176 (Fla. 5th DCA 1999). We think that is the situation in the present case.

Mrs. Rodriguez had a personal and familial history of heart disease, was a long-term tobacco user, and was not medically sophisticated. A second heart attack may for her have been a natural occurrence. That is to say, the fact that she endured a second myocardial infarction while under medical treatment would not necessarily, and as a matter of law, have placed her on notice that the second episode was the result of medical negligence. Thus, this is not a case where, for example, the wrong limb was amputated, and negligence would be obvious even to a person lacking medical sophistication. Rather the issue is far more subtle. Moreover, after considering the comments and explanations given by Mrs. Rodriguez in her deposition, which were relied upon by Dr. Saenz and FHG, on the subject of when she first considered the possibility that Dr. Saenz might have committed malpractice, it appears to this court that the issue of the commencement of the statute of limitations should not in this case have been concluded by summary judgment. Heeding the warning that “courts should take care not to impute sophisticated medical analysis to a lay person struggling with the fact of a crippling or horrifying illness,” we conclude that the date that Ms. Rodriguez should have known that there was a reasonable possibility that her second myocardial infarction was caused by medical malpractice is an issue that should be placed before a jury for resolution. The trial court erred in granting the summary judgment.

REVERSED and REMANDED for proceedings not inconsistent with this opinion.

GRIFFIN and TORPY, JJ., concur.

      . Since the limitations period purportedly ran out before the notice of intent to sue was served in this case, the extensions contemplated in section 766.106(4) would, if the appel-lees were correct, never have been triggered and would be irrelevant to the disposition of this case. See § 766.106(4), Fla. Stat. (2001) (providing 90-day tolling of statute of limitations for negotiation after service of notice of intent; an additional 60 days after receiving notice of termination of negotiations or the "remainder of the period of the statute of limitations, whichever is greater,” in which to file Complaint).

      . Cunningham 724 So.2d at 179.

      . Although another issue was raised in this appeal concerning whether Dr. Saenz and FHG waived the statute of limitations by asking for and receiving an extension of the presuit period, we do not reach that issue in view of our conclusion that summary judgment was inappropriate.


author: PER CURIAM.

text:
    S.D., Appellant, v. C.A.T., Appellee.
    No. 2D03-302.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2004.
    Edward J. Page, Henry G. Gyden, and Robert E. Biasotti of Carlton Fields, St. Petersburg, for Appellant.
    Alexander Caballero, Tampa, and Ingrid Anderson, Clearwater, of Sessums, Mason & Black, P.A., for Appellee.
   PER CURIAM.

All issues raised by S.D. are either without merit or subject to the law of the case doctrine. See S.D. v. C.A.T., 761 So.2d 1242 (Fla. 2d DCA 2000). Accordingly, the only issue on remand is the determination of the amount of child support.

Affirmed.

WHATLEY, KELLY, and VILLANTI, JJ., Concur.


text:
    Gregory Steven TOWNLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2890.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2004.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant in this direct criminal appeal filed two timely Florida Rule of Criminal Procedure 3.800(b)(2) motions by which he sought correction of various technical errors in the trial court’s revocation of probation order and judgment and sentencing documents. The trial court granted the appellant’s motions in all respects, but entered its order on the second motion after the expiration of the 60-day time limit set forth in the rule. Because the court lacked jurisdiction at the time, its order was a nullity. See Robinson v. State, 850 So.2d 658 (Fla. 1st DCA 2003). We therefore remand this case to the trial court for correction of the revocation order and judgment and sentencing documents. The orders under review are otherwise affirmed.

ALLEN, WEBSTER and BENTON, JJ., Concur.


text:
    BROOKWOOD-EXTENDED CARE CENTER OF HIALEAH GARDENS, LLP d/b/a Waterford Convalescent Center, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D02-4242.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2004.
    Theodore E. Mack, of Powell & Mack, Tallahassee, for Appellant.
    Gregory J. Philo, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

Reversed and remanded for petitioner to file an amended petition for hearing in compliance with section 120.54(5)(b)4., Florida Statutes, and Rule 28-106.201, Florida Administrative Code. See Brookwood Extended Care Ctr. of Homestead, LLP v. Agency for Healthcare Admin., - So.2d -, 2003 WL 21920888, 2003 WL 21920888 (Fla. 3d DCA 2003).

ERYIN, BARFIELD and POLSTON, JJ., Concur.


text:
    Michael MARCINIAK, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4318.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2004.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Hall, 641 So.2d 403, 405 (Fla.1994); Clark v. State, 402 So.2d 43 (Fla. 4th DCA 1981); Jess v. State, 384 So.2d 328 (Fla. 3d DCA 1980).

ERVIN, BARFIELD and POLSTON, JJ., Concur.


text:
    Sylvester BROWN, Charles Christopher Whiting, and Jose Smith, Appellant, v. Susie FORD, Appellee.
    No. 1D03-5475.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2004.

      Tracy Raffles Gunn of Fowler, White, Boggs, Banker, P.A., Tampa, for Appellant.
    David P. Heath of Heath & Rasky, Tallahassee; Ross McCloy of Harrison, Sale, MeCloy, Thompson, Panama City; Clifford W. Sanborn, III, of Barron, Redding, Hughes, Fite, Bassett & Fensom, Panama City; Scott E. Gwartney, and Matthew Foster of Brooks, LeBoeuf, Bennett, Foster and Gwartney, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellants’ response to the Court’s order of January 8, 2004, the Court has determined that the notice of appeal was prematurely filed. See generally Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002)(holding that reservation of jurisdiction over non-collateral issue renders an order nonfinal). Specifically, the lower tribunal’s reservation of jurisdiction to determine collateral source set-offs, a non-collateral matter, interferes with the finality of the judgment. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

KAHN, BENTON and VAN NORTWICK, JJ., CONCUR.


text:
    Marla K. FRENCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4347.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges that trial court’s order summarily denying her motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the appellant has a facially sufficient claim that she is entitled to prison credit pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), we reverse. All other issues raised on appeal are affirmed without further discussion.

On July 15, 1996, the appellant was sentenced on multiple cases, pursuant to the sentencing guidelines, to five years’ imprisonment on count one, all cases concurrent, followed by five years’ probation on count two, all cases concurrent to each other and consecutive to count one. The appellant subsequently violated her probation and was sentenced to prison on all cases with some counts consecutive and some counts concurrent. The appellant alleged in her motion that she was entitled to prison credit for the time that she served on the incarcerative portion of her original sentence. When the trial court imposed a term of imprisonment bn one offense and a consecutive term of probation on a separate offense under the sentencing guidelines, the appellant was entitled to credit for time served on the incarcerative portion of her offense when she was sentenced for violating her probation. Tripp v. State, 622 So.2d 941 (Fla.1993). The trial court failed to attach any portions of the record to refute the appellant’s claim that she is entitled to Tripp credit.

We, therefore, reverse the trial court’s summary denial of the appellant’s claim that she is entitled to Tripp credit and remand for the trial court to attach portions of the record that conclusively refute the appellant’s claim or for further proceedings consistent with this opinion. We affirm all other issues.

AFFIRMED in part, REVERSED in part, and REMANDED.

BARFIELD, KAHN, and HAWKES, JJ., concur.


author: PER CURIAM. WOLF, C.J.,

text:
    Hank Joseph HAMMAC, Appellant, v. Angela Marie HAMMAC, Appellee.
    No. 1D03-2093.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2004.
    E. Jane Brehany, Pensacola, for Appellant.
    John R. Sawyer, Pensacola, for Appel-lee.
   PER CURIAM.

AFFIRMED.

ALLEN and DAVIS, JJ., concur; WOLF, C.J., concurs with written opinion.

WOLF, C.J.,

Concurring.

I concur in affirming the denial of the change of custody because of the findings made by the trial judge and because much of the mother’s conduct which was the subject of this hearing may also have been occurring prior to the initial custody determination. I write because of my concern that in previous cases we may have sent the wrong message to trial judges. The correct message is that the burden of proof in modification of custody cases is difficult but not insurmountable. Young v. Young, 732 So.2d 1133 (Fla. 1st DCA 1999). Issues such as promoting family stability and deterring endless litigation between feuding parents, as well as considering the limited resources and capabilities of the courts to remedy familial problems, mandate the extraordinary burden a party must meet to prevail in a change of custody proceeding.

We do, however, recognize that in certain cases the need for protecting children may overcome that burden:

[A] change in custody is appropriate only when ... the trial court finds that [the] change ... will so clearly promote or improve the child’s well-being to such an extent that any reasonable parent would understand that maintaining the status quo would be detrimental to the child’s overall best interests. This test involves more than a decision that the petitioning parent’s home would be “better” for the child, and requires a determination that there is some significant inadequacy in the care provided by the custodial parent.

Young, 732 So.2d at 1134 (quoting Gibbs v. Gibbs, 686 So.2d 639, 641 (Fla. 2d DCA 1996)).

I perceive the holding in cases such as Boykin v. Boykin, 843 So.2d 317 (Fla. 1st DCA 2003), and Young have left trial courts with the impression that they cannot intervene even where the well-being of the child might require action by the trial court. Indeed, if the trial court had ordered a change of custody in this case, I would have affirmed.


author: VAN NORTWICK, J.

text:
    Betty P. HOWELL and Earl A. Howell, Jr., Appellants, v. Pamela L. WINKLE, Appellee.
    No. 1D02-5034.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2004.

      Stephen E. Day and Rhonda B. Boggess of Taylor, Day & Currie; and Dwane D. Tyson and Debra Carter Taylor of William R. Swain & Associates, Jacksonville, for Appellants.
    James H. Daniel and Charles A. Soren-son of Coker, Myers, Schickel, Sorenson ■& Green, P.A., Jacksonville, for Appellee. •
   VAN NORTWICK, J.

In this negligence action brought by ap-pellee, Pamela L. Winkle, against Betty P. Howell and Earl A. Howell, Jr., arising out of an automobile accident between the parties, the Howells appeal orders directing verdicts as to the negligence of Ms. Howell and the comparative negligence of Ms. Winkle. At the close of the Howells’ case, the trial court directed a verdict against the Howells on their affirmative defense that Ms. Winkle was comparatively negligent, Following the jury verdict in favor of the Howells, the trial court directed a verdict as to the negligence of Ms. Howell in favor of Ms. Winkle and ordered a new trial on damages only, or in the alternative, ordered that a new trial take place both as to liability and damages. The Howells contend both directed verdicts were erroneous and the trial judge abused her discretion in alternatively granting a new trial. We agree that the trial court erred in directing a verdict for Ms. Winkle on the issue of her comparative negligence and hold that this error requires a new trial on both liability and damages. Because the negligence of both Ms. Howell and Ms. Winkle were issues for the jury, it was similarly error for the trial court to direct a verdict as to Ms. Howell’s negligence. The remedy for directing a verdict for Ms. Winkle on the issue of her comparative negligence is a new trial on both liability and damages. Accordingly, we do not address the alternative portion of the trial court’s order which orders a new trial both as to liability and damages on the grounds the defense verdict was contrary to the manifest weight of the evidence.

Factual and Procedural Background

The accident in this case occurred in Jacksonville on Monument Road near the intersection of Atlantic Boulevard at an entrance to the Regency Square Mall. There is no traffic light or other control device at this mall entrance. At the site, Monument Road has two lanes traveling southward, two traveling northward and two turning lanes in the center.

On August 18, 1999, Ms. Howell was driving north on Monument Road to Regency Square Mall with a friend as a passenger. According to her testimony, she pulled into the northbound left turn lane, stopped her car in the turn lane, and put on her left turn signal. It is undisputed that traffic in the left southbound turn lane and left southbound through lane on Monument Road was backed up from the intersection of Atlantic Boulevard and at a standstill at the turn into the mall, but the traffic had stopped in a manner that allowed an opening for vehicles to turn left across the southbound lanes into the mall. Ms. Howell and her passenger both testified that Ms. Howell crossed the southbound lanes gradually, pulling first across the southbound center left turn lane, then pulling across the left travel lane in front of the stopped traffic, then stopping and looking north to see if any vehicles were coming in the right curb lane. Ms. Howell then proceeded across the southbound right curb lane. Her car was three-quarters across the lane when Ms. Winkle’s car struck her car at the back wheel on the passenger side. Ms. Howell testified that she did not see the Winkle vehicle before impact or hear any horns or screeching of brakes. The force of the impact pushed Ms. Howell’s vehicle into another vehicle waiting to exit the mall.

Another witness was in her car in the southbound left travel lane of Monument Road when the accident took place. The traffic in her lane was stopped and she had left a gap in front of her vehicle for the vehicles to turn into or out of the mall. Cars were passing by her on the right in the southbound right curb lane. She testified that Ms. Howell’s vehicle approached the gap in front of her car, paused and then traveled across the southbound turn lane and her lane into the right curb lane. She could not gauge how fast Ms. Howell was driving, but she thought Ms. Howell’s car “was moving a little bit fast.” She did not see the impact of the vehicles; she just heard the crash.

Ms. Winkle testified that she was traveling south on Monument Road at approximately 30 to 35 mph in a 35 mph zone. She was planning to cross over Atlantic Boulevard on Monument Road. She testified that she did not see the Howell vehicle until it was directly in front of her. Ms. Winkle also testified that, when she turned onto Monument Road, she thought that she had turned into the left travel lane, not the right curb lane. She further testified, however, that once on Monument Road she had not changed lanes. The accident occurred in the right curb lane.

At the close of Ms. Winkle’s case, the Howells moved for a directed verdict in their favor on liability, among other things. The motion was denied. At the close of the Howells’ case, Ms. Winkle moved for directed verdict on all issues of liability. The court denied the motion for directed verdict as to the liability of Ms. Howell, but granted a directed verdict in Ms. Winkle’s favor as to her comparative negligence. Thus, the jury was deprived of its opportunity to apportion fault between these drivers and was left with the choice of either assessing fault for the accident entirely to Ms. Howell, or finding no liability. The Howells requested a special jury instruction based on section 316.185, Florida Statutes (1999), which provides that a driver should decrease speed below the posted limit when there is a special hazard. The trial court denied the request, ruling that no special hazard existed on the date and place of this accident.

The jury returned a verdict finding that there was no negligence on the part of Ms. Howell which was a legal cause of damage to Ms. Winkle. Ms. Winkle renewed her motion for directed verdict and moved for a new trial. Thereafter, relying upon Emmer v. Perez, 757 So.2d 612 (Fla. 3d DCA 2000), the court entered an order directing a verdict on Ms. Howell’s liability, reasoning that the only reasonable inference which could be drawn from the evidence was that Ms. Howell was negligent as she proceeded across the last lane of traffic before reaching the entrance to the mall and that she was the sole cause of the accident because she turned left into the pathway of an oncoming vehicle. The trial court ordered a new trial on damages. Alternatively, the trial court ruled that Ms. Winkle was entitled to a new trial on both liability and damages because the verdict was contrary to the manifest weight of the evidence.

Directed Verdicts

Before granting a directed verdict, the trial court must view the evidence and testimony in the light most favorable to the nonmoving party. Having done that, if the court determines that no reasonable jury could render a verdict for the nonmoving party, a directed verdict is appropriate. However, if there is any evidence upon which a jury could lawfully find for the nonmoving party, a verdict should not be directed. Miller v. City of Jacksonville, 603 So.2d 1310, 1311-12 (Fla. 1st DCA 1992). Motions for directed verdict are rarely appropriate in negligence cases. Scott v. TPI Restaurants, Inc., 798 So.2d 907, 908 (Fla. 5th DCA 2001). Where there is evidence which supports an inference of comparative fault on the part of the plaintiff, the issue of comparative negligence should be submitted to the jury. Langmead v. Admiral Cruises, Inc., 610 So.2d 565, 566 (Fla. 3d DCA 1992). If the inference of comparative negligence is possible from the plaintiffs own evidence, the defendant need not present further evidence of comparative negligence in order to survive the plaintiffs motion for directed verdict. Id. at 567.

In this case, the plaintiffs own evidence was sufficient to support ah inference of comparative fault. Thus, the issue of her comparative negligence should have been submitted to the jury. Viewing the evidence in favor of the nonmoving party, Mrs. Howell, the jury could have accepted the testimony of Ms. Winkle that she pulled into the second lane, not the right curb lane, and that she was not in the far right curb lane at the time Mrs. Howell stopped and looked north on Monument Road, not seeing any traffic. The jury could have inferred that Ms. Winkle thereafter changed lanes from the stopped left traffic lane into the flowing right curb lane just before the accident. See Florida Power Corp. v. Coppola, 765 So.2d 858, 860 (Fla. 5th DCA 2000).

Because the trial court erroneously directed a verdict for Ms. Winkle on the issue of her comparative negligence, a new trial on both liability and damages is required. Home Depot USA Company, Inc. v. Taylor, 676 So.2d 479, 480 (Fla. 5th DCA 1996); see also Carnival Cruise Lines, Inc. v. Levalley, 786 So.2d 18, 19-20 (Fla. 3d DCA 2001); City of Winter Haven v. Allen, 541 So.2d 128, 137 (Fla. 2d DCA 1989); Ryan v. Atlantic Fertilizer & Chemical Co., 515 So.2d 324, 327-28 (Fla. 3d DCA 1987); ITT-Nesbitt, Inc. v. Valle’s Steak House of Ft. Lauderdale, Inc., 395 So.2d 217 (Fla. 4th DCA 1981). There were issues of fact in this case concerning whether Ms. Winkle exercised reasonable care as she proceeded down Monument Road. U.S. Fire Insurance Company v. Progressive Casualty Insurance Company, 362 So.2d 414, 415 (Fla. 2d DCA 1978). The finders of fact should have been permitted to determine what degree of negligence was attributable to Ms. Winkle’s conduct. Id. at 417.

Similarly, the trial court erred in directing a verdict on Ms. Howell’s negligence. Emmer v. Perez, upon which the trial court relied, is distinguishable. The facts in that case as stated by the appellate court are as follows:

As Ms. Emmer approached the intersection at 40th Avenue, she came to a complete stop in the left turn lane to permit the westbound traffic to pass and clear before making a left turn. At some point, a car traveling westbound in the left lane stopped and its driver motioned for Ms. Emmer to make her left turn. At trial, Ms. Emmer acknowledged that the unidentified motorist who summoned her to turn was not a police officer and she also admitted that she could not see the westbound traffic traveling in the remaining right lane. She thus acknowledged that no one in the remaining right lane similarly stopped and yielded the right-of-way for her to turn left. When Ms. Emmer proceeded to make a left turn she never stopped to check the status of traffic in the westbound right lane. As she entered the westbound right lane, while making a left turn, her car was struck by Ms. Perez. According to Ms. Perez’s testimony, she did not see Ms. Emmer’s car prior to the accident because the car in the left lane had blocked her view.

Id. 757 So.2d at 613. Based on these facts, the appellate court upheld the trial court’s directed verdict, noting that the sole cause of the accident was Ms. Emmer’s failure to stop and check the traffic in the westbound right lane before proceeding into that lane in front of Ms. Perez. In the instant case, however, both Ms. Howell and her passenger testified that they did stop and look for oncoming traffic before proceeding into the southbound right curb lane. As a result, here there were disputed factual issues for the fact-finder to resolve.

To the extent the jury did decide that Ms. Howell was faultless, that decision was made by a jury which was erroneously deprived of the ability to decide Ms. Winkle’s comparative fault. As a result, the jury was left with the choice to find Ms. Howell entirely at fault or not at all at fault. As this court recently stated in Moore v. State, 861 So.2d 1251 (Fla. 1st DCA 2003):

When reviewing an order for directed verdict, we like the trial court are required to evaluate the evidence in the light most favorable to the nonmoving party, and every reasonable inference must be found in the nonmoving party’s favor.

A directed verdict is not appropriate where there are issues of negligence for the jury. Id.

Special Hazard Jury Instruction

The Howells also argue that the trial court erred in denying their requested special hazard jury instruction. Although, in view of our holding above, it is not necessary for us to address this issue, we address it to provide guidance to the trial court in the new trial on remand. 3B TV, Inc. v. State, 794 So.2d 744, 748 (Fla.App. 1st DCA 2001).

The trial court’s decision regarding jury instructions is judged using an abuse of discretion standard of review and reversible error occurs if the jury was misled by the failure to give the requested instruction. Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990). . Here, the trial judge did not abuse her discretion in denying this requested jury instruction. There was no “reasonable possibility that the jury could have been misled by the failure to give the instruction.” Id. (quoting Ruiz v. Cold Storage & Insulation Contractors, Inc., 306 So.2d 153, 155 (Fla. 2d DCA 1975)). Further, based upon the record before us, we believe that the trial court correctly found that the facts here did not support the instruction requested. “Special hazards” are generally limited to those situations in which weather, roadway or exceptional traffic conditions require a driver to decrease her driving speed. See Acree v. Hartford South, Inc., 724 So.2d 183, 184-85 (Fla. 5th DCA 1999). The presence of a pedestrian or bicyclist may constitute a special hazard. See Sotuyo v. Williams, 587 So.2d 612, 614-15 (Fla. 1st DCA 1991). The instances where traffic conditions constitute a special hazard are generally limited to exceptional traffic conditions associated with events that create unusually crowded traffic conditions, such as parades, festivals, or sports events. Acree, 724 So.2d at 185. Normal traffic conditions, encountered by drivers everyday, do not constitute a special hazard. Id. Here, there is no evidence of the existence of weather or roadway conditions which might constitute a special hazard. Further, the record reflects that the traffic conditions around the mall were not unusually crowded. Thus, there was no record basis for the requested special hazard instruction.

For the foregoing reasons, the trial court’s directed verdicts on Ms. Winkle’s comparative negligence and on Ms. Howell’s negligence are reversed and the cause is remanded for a new trial on both liability and damages.

REVERSED and REMANDED.

KAHN and WEBSTER, JJ., concur.


text:
    Christopher L. ORSTAD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0716.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2004.
    Christopher L. Orstad, pro se,' petitioner.

      Charlie Crist, Attorney General, and Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Christopher L. Orstad is hereby granted a belated appeal from judgment and sentence in case numbers 2000-7719-CF-A and 2002-4543-CF-A in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, to be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The lower tribunal is directed to appoint counsel to represent petitioner in the appeal, if he qualifies for such an appointment.

PETITION GRANTED.

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    Philip L. RAIA, Appellant, v. Joyce C. RAIA, Appellee.
    Nos. 1D03-1282, 1D03-2026.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2004.
    Anthony C. Bisordi of Bisordi & Bisordi, P.A., Fort Walton Beach, for Appellant.
    John P. Townsend, Fort Walton Beach, for Appellee.
   PER CURIAM.

We find no error in the trial court’s Final Order on appeal. On cross-appeal, however, we reverse in part the Final Judgment rendered May 6, 2003, and remand to the trial court to award statutory interest on Former Husband’s attorney’s fee obligation of $14,264.00 to accrue from March 7, 2003. See Fischbach & Moore, Inc. v. McBro, 619 So.2d 324 (Fla. 3d DCA 1993). The remaining issue on cross-appeal is without merit.

AFFIRMED in part; REVERSED in part, and REMANDED.

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Everitte L. FORBES, Petitioner, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Respondent.
    No. 1D03-3179.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2004.
    Everitte L. Forbes, pro se, petitioner.
    Charlie Crist, Attorney General, and Sean F. Callaghan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

A Department of Corrections disciplinary team found Everitte L. Forbes guilty of lying to staff and imposed a penalty of forfeiture of 60 days of gain time. After exhausting his administrative remedies, Forbes filed a petition for writ of mandamus in the Circuit Court for Holmes County. A show cause order issued and, after considering the department’s response, the mandamus petition was denied. Forbes seeks review of that decision by petition for writ of certiorari and we have jurisdiction in accordance with Sheley v. Florida Parole Comm’n, 720 So.2d 216 (Fla.1998).

In his certiorari petition, Forbes contends that the circuit court erred in acting on his mandamus petition without affording him time to file his reply to the department’s response. Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996). The Department has moved to relinquish jurisdiction to the circuit court, essentially agreeing with petitioner’s argument on this point. Rather than relinquishing jurisdiction, we find that the appropriate disposition in this circumstance is to grant the petition, quash the order of the circuit court, and remand the cause to the circuit court for further proceedings. See Stacey v. Department of Professional Regulation, Board of Nursing Home Administrators, 547 So.2d 241 (Fla. 1st DCA 1989). In light of the granting of relief on this ground, we decline to address petitioner’s other point regarding the correctness of the circuit court’s decision at this time.

PETITION FOR WRIT OF CERTIO-RARI GRANTED.

WEBSTER, LEWIS and HAWKES, JJ., concur.