author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    Terrence Lee HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1659.
    District Court of Appeal of Florida, Third District.
    July 16, 2003.

      Bennett H. Brummer, Public Defender, and Carlos Gonzalez, Assistant Public Defender, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England (Ft.Lauderdale), Assistant Attorney General, for Appellee.
    Before SCHWARTZ, C.J., and GODERICH, J., and NESBITT, Senior Judge.
   PER CURIAM.

At the outset we reject the appellant’s argument that the “burglary” enumerated in Section 776.08, Florida Statutes (2000), does not qualify as a “forcible felony” and therefore, it does qualify the appellant for sentencing under Section 775.084(l)(d), Florida Statutes (2000). Rodriguez v. State, 837 So.2d 1177 (Fla. 3d DCA 2003); Delsol v. State, 837 So.2d 428 (Fla. 3d DCA 2002); Diaz v. State, 837 So.2d 436 (Fla. 3d DCA 2002).

We remand this matter for resen-tencing because, as the State concedes, the trial judge mistakenly believed he was compelled to impose a violent career criminal sentence once the qualifying offenses were established. The trial court actually had discretion, per Section 775.084(4)(d), Florida Statutes (2000), to determine whether the Gort classification, and enhanced sentence, is necessary for the protection of the public. In Calderon v. State, 745 So.2d 535, 536 (Fla. 3d DCA 1999) we ordered a similar remand, and stated, in language applicable here:

The record shows that the trial court mistakenly believed that a violent career criminal sentence was mandatory. As stated in State v. Harris, 718 So.2d 933, 934 (Fla. 3d DCA 1998), “[t]he statute calls for the trial court to impose sentence as a violent career criminal unless ‘the court finds ... that it is not necessary for the protection of the public ... ’” See State v. Meyers, 708 So.2d 661 (Fla. 3d DCA 1998). The sentencing hearing transcript reflects that the trial court believed it was precluded from finding that a violent career criminal sentence was not necessary for the public’s protection merely because defendant qualified for violent career criminal status.

We find no merit in the defendant’s further claim that the sentence imposed was legally “vindictive.”

This matter is therefore remanded to the same trial judge for resentencing consistent herewith.

GODERICH, J. and NESBITT, Senior Judge, concur.

SCHWARTZ, Chief Judge

(specially concurring in part, dissenting in part).

I agree without qualification to remanding the cause for resentencing. See Calderon v. State, 745 So.2d 585 (Fla. 3d DCA 1999). I concur with the “burglary” holding because this court has already so held. But see Delsol v. State, 837 So.2d 428, 429 (Fla. 3d DCA 2002)(Schwartz, C.J., dissenting in part).

Finally, I believe that the trial judge’s participation in the plea negotiations does not pass muster under Wilson v. State, 845 So.2d 142 (Fla.2003). See Nairn v. State, 837 So.2d 519 (Fla. 3d DCA 2003). I would therefore remand for resentencing before another judge. Wilson, 845 So.2d at 158.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose GIL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1472.
    District Court of Appeal of Florida, Third District.
    July 16, 2003.
    Jose Gil, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, FLETCHER, and WELLS, JJ.
   PER CURIAM.

Affirmed. See State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).


text:
    Geraldine Bernice WARREN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1093.
    District Court of Appeal of Florida, Third District.
    July 16, 2003.
    Geraldine Bernice Warren, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003)(en banc). Conflict certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).


author: WARNER, J. STONE, J.,

text:
    STATE of Florida, Appellant, v. Rosario SACCO, Appellee.
    No. 4D01-4829.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    David G. Vinikoor of David G. Vinikoor, P.A., and Paul Stark of Paul Stark, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

The state appeals the trial court’s order dismissing its case against appellee, Rosario Sacco, for first degree murder. We affirm, holding that the state conceded the facts were undisputed and that it could not prove a prima facie case against appellee.

In 1992, Mack Swaim and appellee, Swaim’s guardian, were indicted for the first degree murder of Randy Giacchina. The police were unaware of Giacchina’s murder until an informant contacted the police and advised them his body was buried on Swaim’s property. The informant also indicated Swaim had committed the murder. Based upon this information, the police obtained a search warrant for Swaim’s property. Swaim was present at the search and showed the police where the body was buried. The police also found a gun, which Swaim admitted he had used in the murder. After Swaim was arrested and given his Miranda warnings, he confessed to the murder, taking sole responsibility.

Appellee was a very close friend of the Swaim family, having promised Swaim’s father that he would take care of Mack and his sister when Swaim died. The night after Swaim’s arrest, appellee contacted the police and confessed to Giacchi-na’s murder. Because appellee appeared intoxicated, the police discounted his confession but took a taped statement anyway. With this new information, the police questioned Swaim again. After Swaim heard of appellee’s confession, he confirmed that appellee had killed Giacchina. Swaim and appellee were both indicted for first degree murder.

In 1996 both parties pled not guilty and their trials were severed. Appellee later changed his plea to guilty. Swaim was found not guilty of first degree murder but guilty of being an accessory after the fact. Later, appellee successfully moved to withdraw his plea. Over a year later, on ap-pellee’s motion, the trial court suppressed all the evidence recovered from Swaim’s property, including Giaechina’s remains and the murder weapon as well as Swaim’s second confession in which he implicated appellee in the murder. Thus, the state’s only evidence against appellee was Swaim’s initial confession in which he took sole responsibility for the murder and ap-pellee’s confession.

Subsequently, in preparation for appel-lee’s murder trial, the state subpoenaed Swaim to appear for a deposition. Swaim asserted his Fifth Amendment privilege at the deposition. The state filed a motion for a rule to show cause, maintaining that Swaim no longer had the right to assert the Fifth Amendment privilege where double jeopardy had attached to his case involving the same murder. Two and a half years later, the trial court issued a rule to show cause. Swaim sought a writ of prohibition in this court, but we dismissed because there was no order as yet compelling Swaim to testify.

In 2001, appellee moved to dismiss the nine year old case, contending that the state could not prove a prima facie case against him, specifically the corpus delicti, because Swaim refused to testify. At the first of several hearings on the motion, Swaim’s counsel confirmed that Swaim would assert his Fifth Amendment privilege at trial. The state maintained that it could establish the corpus delicti without violating Swaim’s privilege against self-incrimination, but it could not contest the defense’s representation of the facts “in good faith.”

After reviewing appellee’s motion and the parties’ arguments, the trial court held another hearing to clarify the state’s position. The judge indicated that he was inclined to deny the motion because the possibility existed that Swaim might testify at trial. He also thought the state could prove the corpus delicti with circumstantial evidence. However, the prosecutor responded, “[i]n all candor, Judge, I don’t think the state can prove it that way without the testimony of Swaim.” The trial court set another hearing on the issue.

At the subsequent hearing, the judge expressed his hesitancy in proceeding to trial where it would be an “unproductive use of resources.” In response, the prosecutor stated, “[cjertainly is an issue whether the State of Florida can in good faith go forward.” The prosecutor also indicated his recommendation was to enter a nolle-prosse. The court again recessed the proceeding to allow the prosecutor to determine whether to nolle prosse the case.

Finally, at the reset hearing, the court asked the prosecutor:

The Court: Let me ask you this question: Can the State in good faith go forward with this case?
Prosecutor: Depends on who you ask.
The Court: I’m asking you. You are the trial attorney on the case.
Prosecutor: In my opinion, no.
Do I believe the defendant did it?
Yes.
The Court: Okay
Prosecutor: Do I believe that we could prove it with the available evidence?
No.
Do I have — the Good Housekeeping seal of approval to nol-pros the case?
I do not.
Will I work on it some more?
There’s some more—
The Court: My feeling is that the State Attorney’s Office has in my view, if not a lawful, certainly an ethical duty to go forward or not go forward, as the case may be, in good faith.
If you are the lead prosecutor in this case and you say to me, as an officer of the Court, you cannot in good faith go forward on this case, I will grant the motion to dismiss.

These were the state’s last comments before the trial court entered its order dismissing the case.

A defendant may move to dismiss an indictment under Florida Rule of Criminal Procedure 3.190(c)(4) where “[t]here are no. material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” In this case, although the state filed a denial of the sworn motion, at several of the hearings on the motion, the prosecutor conceded that the facts were undisputed and that based upon Swaim’s refusal to testify, the state had no case. Even after the trial court indicated it was required to deny the motion and suggested the manner in which the state could prove a prima facie case, the prosecutor persisted in his assessment that he could not go forward with the case. While the state argues that the trial court improperly permitted Swaim to assert his Fifth Amendment right, it never made this specific legal argument at the hearings. The trial court never ruled on that issue but rather suggested that Swaim might choose to testify. It was the prosecutor’s persistence that he could not in good faith go forward and his concession that the state could not prove its case that prompted the court to dismiss. Thus, the state’s appellate arguments are not preserved. See Steinhorst v. State, 412 So.2d 832, 338 (Fla.1982).

The dismissal of this ten year old indictment is without prejudice. See State v. Gellis, 375 So.2d 885 (Fla. 3d DCA 1979). Because there is no statute of limitations for first degree murder, see § 775.15(l)(a), Florida Statutes (2002), if or when the state obtains additional evidence, it may refile the charges against appellant.

Affirmed.

FARMER, C.J., concurs.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

In my judgment, in the context of the several hearings in our record, the prosecutor’s statement was an insufficient basis for the trial court to dismiss the case.

It is undisputed that the trial court was going to deny the motion to dismiss. The prosecutor’s statement that, in his opinion, the state could not go forward in good faith cannot be separated from the underlying question of whether the key witness would ultimately testify, voluntarily or by compulsion, to establish the necessary corpus delicti. Obviously, the state’s case was weak. However, this is not a case where the state had no proof of guilt; it had a confession. The state also had the witness’ previous statement regarding the victim’s death to support any decision to go forward. The concern was whether that testimony would become available at the time of trial, a matter that all acknowledge could not be resolved on the pending (c)(4) motion to dismiss.

In this context, I cannot assume that the prosecutor was saying that the state would not be able to go forward in good faith in the event that the testimony needed to prove the death of the victim became available. It seems to me, that the statement as to good faith involved whether the prosecutor believed that there would be sufficient evidence for the state to proceed to prove a corpus delicti in the absence of the testimony of the recalcitrant witness. At best, this point is not clear. More should be required before the court can, essentially sua sponte, dismiss the state’s case.


author: WARNER, J. FARMER, C.J.,

text:
    Elissa Fran LEVINE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-735.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

WARNER, J.

We grant the motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

Appellant was convicted in Broward County of a violation of section 817.52(3), Florida Statutes (2001), for failure to return a car she rented in Atlanta, Georgia. She contended that the crime did not occur in Florida. Because she kept the vehicle in Florida, her refusal to return the vehicle occurred in this state. We therefore affirm.

Appellant rented a car from Atlanta Rent-A-Car which has ten offices in Atlanta and one in Birmingham, Alabama. It has no offices in Florida. Appellant indicated to the rental agency that she was from New York, was staying at a motel, and needed a vehicle for a day or two. She executed a rental agreement for a one-day rental. According to the agreement, she was to return the vehicle to the same office the next day. If appellant failed to return the vehicle at that time, and converted the vehicle to her own use, the rental agreement indicated such actions may constitute theft under Georgia law. Appellant did not return the vehicle the next day but drove it to Broward County where her mother lived.

The rental agency manager did not become concerned about appellant’s failure to return the vehicle until it was overdue for four days. After a week, the company charged appellant’s credit card $200 for the week’s rental. The company continued to charge the card $200 periodically for the use of the vehicle.

Approximately two weeks after appellant failed to return the vehicle, the manager contacted an auto recovery service and provided it with appellant’s driver’s license which listed a New York address. The manager sent a certified demand letter for the return of the vehicle to that address. Receiving no response six or seven weeks later, the manager reported the vehicle stolen and had a warrant issued in Georgia.

Ultimately, the vehicle was located at appellant’s mother’s home in Broward County. The manager had the vehicle shipped back to Atlanta, and the State of Florida charged appellant with failure to return a hired vehicle. Appellant moved to dismiss the information, contending the crime was committed in Atlanta, Georgia, not in Broward County. The trial court denied the motion. The case went to trial, resulting in a conviction and sentence for appellant. From this judgment and sentence she appeals.

Appellant claims the court erred in refusing to give jury instructions on both venue and jurisdiction, claiming that the evidence established the offense occurred in Georgia because she failed to return the vehicle to the Atlanta agency. Section 817.52(3) provides:

Whoever, after hiring a motor vehicle under an agreement to redeliver the same to the person letting such motor vehicle or his or her agent, at the termination of the period for which it was let, shall, without the consent of such person or persons and with intent to defraud, abandon or willfully refuse to redeliver such vehicle as agreed shall, upon conviction, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The elements of the crime, therefore, consist of:

(1) the execution of a lease agreement including a provision that the vehicle shall be redelivered to the person letting such property;
(2) the expiration of the lease period;
(3) the willful refusal to redeliver the vehicle with the intent to defraud;
(4) the lack of consent of the person who let the vehicle.

Under section 910.005, Florida has jurisdiction to prosecute cases in which:

(1) A person is subject to prosecution in this state for an offense that he commits, while either within or outside the state, by her or his own conduct or that of another for which he is legally accountable, if:
(a) The offense is committed wholly or partly within the state;
(2) An offense is committed partly within this state if either the conduct that is an element of the offense or the result that is an element, occurs within the state.

As appellant’s refusal to redeliver the vehicle occurred in Broward County, Florida, this state had jurisdiction and Broward County was the appropriate venue in which to bring charges.

This case is analogous to Jenner v. State, 159 So.2d 250 (Fla. 1st DCA 1964). There, a defendant lawfully took possession of boats in Taylor County, Florida, which were then delivered to, and stored in, St. Louis, Missouri, with the owner’s consent, for sale. After disputes with the Florida boat company arose, defendant refused to return the boats to the owner in Florida. The state charged the defendant with theft. See id. at 251. Defendant contested whether a charge could be brought in Taylor County. The court determined that because defendant had been in lawful possession of the boats when they left Florida, the intent to deprive the owner of its property could not have occurred in Florida but instead occurred, if at all, in Missouri. The court reversed appellant’s conviction and remanded for discharge. See id. at 252-58.

Similarly, appellant had lawful custody of the vehicle when she left Atlanta. Therefore, the intent to defraud and refusal to redeliver occurred in Broward County where she took the vehicle. Although a defendant is entitled to a requested jury instruction on his theory of defense provided the evidence in the record supports that theory, see Vazquez v. State, 518 So.2d 1848, 1350 (Fla. 4th DCA 1987), all of the evidence produced refuted appellant’s claim of lack of jurisdiction and improper venue, as at least one element of the crime occurred in Florida.

We affirm the remaining issues without further discussion.

STONE J., concur.

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

FARMER, C.J.,

concurring.

The conduct for which defendant was convicted is one of those offenses that is physically incapable of being complete in the moment it is undertaken. It is not over in an instant or a brief span of time, as when a discrete physical act is performed. Shooting someone, for example, is complete the instant following the act of shooting. .

There is a kind of conduct, however, that takes place in an expanse of time and maybe even of place. I have in mind something akin to an act of being, an intransitive verb. Or, as in this instance, of not doing something one is obligated to do. This is often referred to as a continuing offense. Possession of stolen property strikes me as one. It continues as long as the stolen property is had and wherever it is possessed illegally. For this kind of offense, as Yogi might say, “it ain’t over till it’s over.”

Defendant’s act was of the continuing kind. Her offense is willfully failing to return a rental vehicle after the term of the lease had expired. Logically, once this offense was set into being, it necessarily continued (and thus was not complete) as long as the vehicle was not returned to the lessor when it should have been.

And, as this case illustrates, because it continues it also occurs wherever the vehicle is kept during the failure to return. Thus while the failure to return may have begun in Georgia on the day following the one-day lease, it must be deemed to have continued all the days following until it was returned (involuntarily). It also continued into new jurisdictions and venues as she drove the car into Florida and down to Broward County. Therefore, if she was guilty at all of failing to return the vehicle, she was certainly guilty of it until she returned it and wherever she took it while she failed to return it. As I said, in this sense her offense is not unlike an illegal possession that continues for days or months while the purloined thing is taken from place to place.

The problem with defendant’s jury instruction is that an issue of jurisdiction or venue would have been possible only in respect of a completed act in one place. Was the shooter in Broward or Palm Beach County when the shot was fired? In the context of this continuing act, however, there is no possible jurisdictional or venue issue in any of the places where she kept the car while illegally failing to return it. Hence no error in denying the instruction.

On this basis I concur in the affirmance of defendant’s conviction.

      . Because of multiple sovereigns, the fact that a continuing offense may be punished in more than one jurisdiction does not create a double jeopardy problem. It does, however, act as a powerful disincentive to continuing the act in more than one jurisdiction.

        . In drafting the statute, the Legislature could have specified that each day the vehicle is not returned when it should have been constitutes a separate offense. As it did not so specify, the offense is merely a continuing one until it is returned.

      . It is possible to imagine a shooting in which the shooter and the victim were both athwart the county line. Where crimes are committed in more than one county, either is a proper venue.

      .If she wanted to limit venue to a particular place while she illegally failed to return the car, perhaps she should have kept it only in that place.


author: POLEN, J.

text:
    J.D., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1029.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

On June 29, 2001, J.D., a juvenile charged with vandalizing a community pool, was adjudicated to six months of probation including 100 hours of community service and ordered to pay restitution. At the restitution hearing in September of 2001, the victim proffered damages of $2,513.17, but the Special Master reset the hearing for November 29, 2001 due to the absence of J.D. Miscommunication ensued, and in October the Dept, of Juvenile Justice (“DJJ”), overlooking the fact that restitution had not been completed, entered a progress report recommending that probation be terminated. In apparent reliance on the DJJ’s recommendation, the court terminated J.D.’s probation on October 18, 2001 without reserving jurisdiction for the purposes of restitution. On November 29, 2001, the oversight of the earlier order became known, and the court vacated that order expressly reserving jurisdiction for the purposes of imposing restitution.

In the November 29 order, the court improperly accepted the State’s reliance on the grounds of a “scrivener’s error” to vacate the October 18 order. The State is permitted to move for a correction of error if the correction would benefit the child or correct a scrivener’s error. Fla. R. Juv. P. 8.135(b). However, this mistake is not a scrivener’s error. See Ashley v. State, 850 So.2d 1265, 1268 n. 3, 2003 WL 60564 at *3 n. 3 (Fla. Jan.9, 2003)(scriven-er’s error refers to “clerical or ministerial errors in a criminal case that occur in the written sentence, judgment, or order of probation or restitution,” i.e., “a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record, but not those errors that are the result of judicial determination or error”) (citations omitted). Nevertheless, the court had authority to vacate the October 18 order under Florida Rule of Juvenile Procedure 8.140, which provides: “[o]n motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from an order, judgment, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect...” This provision is broad enough to allow the court to set aside the October 18 order in this case. The correction of such an error which appears to produce the most just result is permissible.

Notwithstanding the court’s ability to vacate an order on the ground of mistake, the court must still have jurisdiction over a juvenile to enter an order. As a general rule, the jurisdiction of the juvenile court in a delinquency case ceases when the child attains nineteen years of age. § 985.201(4)(a), Fla. Stat. (2001). This principle is slightly expanded for restitution purposes:

The court may retain jurisdiction over a child and the child’s parent or legal guardian whom the court has ordered to pay restitution until the restitution order is satisfied or until the court orders otherwise. If the court retains such jurisdiction after the date upon which the court’s jurisdiction would cease under this section, it shall do so solely for the purpose of enforcing the restitution order.

§ 985.201(4)(c), Fla. Stat. Although the November 29 order preceded J.D.’s 19th birthday on December 8, by nine days, all the order did was vacate the earlier order and merely reserved jurisdiction for restitution purposes. The court failed to enter a restitution order before J.D.’s 19th birthday, and therefore no restitution order can be enforced. The trial court’s jurisdiction subsequent to J.D.’s 19th birthday was restricted to enforcing (restitution) orders already in effect; the court lacked jurisdiction to enter an order setting the amount of restitution, or any order for that matter, after J.D. reached nineteen years of age. See Cesaire v. State, 811 So.2d 816 (Fla. 4th DCA 2002)(court lacked jurisdiction to enter new orders requiring the payment of restitution after juvenile’s 19th birthday where court failed to retain jurisdiction to enforce previously entered restitution order.) Although this issue was not raised at the initial restitution hearing below, a lack of jurisdiction constitutes fundamental error from which this court may grant relief even when presented for the first time on appeal. See, e.g., Holiday v. State, 753 So.2d 1264, 1269 (Fla.2000) (fundamental error analysis should be restricted to rare cases where a jurisdictional error occurs or the interest of justice are compelling); Salea v. Salea, 831 So.2d 709 (Fla. 3d DCA 2002); see also Cesaire, 811 So.2d at 817. In sum, the juvenile court could not enter an enforceable order after J.D. attained the age of nineteen years, and its subsequent order approving the Special Master’s restitution order is void.

J.D. also appeals the portion of the restitution order which assessed $418 to compensate the victim for the expense of hiring security guards to oversee the repairs made to the pool that J.D. had damaged. Specifically, he contends this expense was not causally connected to his criminal act. The court is permitted to order restitution to the victim for “damage or loss caused directly or indirectly by the defendant’s offense,” section 775.089(l)(a), Florida Statutes (2001), and the court seemed to be within its discretion to order such restitution. However this issue is moot due to the void restitution order.

REVERSED.

WARNER and GROSS, JJ., concur.

      . The Florida Criminal Procedure Rules do not contain a corresponding provision to Florida Rule of Juvenile Procedure 8.140, but Florida Rule of Civil Procedure 1.540(b)(1) closely mirrors Florida Rule of Juvenile Procedure 8.140. See Everett v. Fla. Transp. Servs., Inc., 744 So.2d 1038, 1039 (Fla. 4th DCA 1999)(this rule allows correction of a mistake of fact, but not a mistake of law or tactics; judicial error such as a mistaken view of the law is not subject to a correction under this rule.).


author: COVINGTON, Judge.

text:
    Paul CLAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-928.
    District Court of Appeal of Florida, Second District.
    July 16, 2003.
    Paul Clayton, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

Paul Clayton appeals the summary denial of his petition for request of documents. In his petition, Clayton alleged that he was in the process of seeking executive clemency, and he requested free copies of his judgment and sentence, plea agreement form, sentencing guidelines scoresheet, and sentencing transcripts. The petition was addressed to the clerk of the court, but the clerk improperly forwarded it to the trial judge for action. The trial judge denied the petition without any explanation.

Because an application for clemency requires accompanying certified copies of the information or indictment and judgment and sentence for each conviction, Clayton is entitled to certified copies of such documents free of charge. See Fla. Admin. Code R. 27 app. (2002); § 940.04, Fla. Stat. (2002); Marshall v. State, 759 So.2d 717 (Fla. 2d DCA 2000); Lane v. Gardner, 778 So.2d 1071 (Fla. 5th DCA 2001). However, Clayton is not entitled to copies of the plea agreement form, sentencing guidelines scoresheet form, and sentencing transcripts without charge. See § 940.04; Lane, 778 So.2d at 1071 n. 1.

Pursuant to section 940.04, the clerk of the court shall furnish the copies to the applicant free of payment. Therefore, the clerk of the court should not have forwarded Clayton’s request to the trial judge because the trial judge does not have the authority to provide the documents. Accordingly, we affirm the order of the trial court denying Clayton’s petition without prejudice to Clayton to file a request for the proper documents with the clerk of the circuit court. If the clerk denies his request, Clayton may file a petition for writ of mandamus in the trial court to compel the clerk of the court to comply with his ministerial duty set forth in section 940.04.

Affirmed.

DAVIS and KELLY, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Asela ORTEGA, Appellant, v. CARNIVAL CRUISE LINES, INC. and The Florida Unemployment Appeals Commission, Appellees.
    No. 3D02-2400.
    District Court of Appeal of Florida, Third District.
    July 16, 2003.

      Asela Ortega, In Proper Person.
    John D. Maher (Tallahassee), for appel-lee Florida Unemployment Appeals Commission.
    Before SCHWARTZ, C.J., and SHEVIN and RAMIREZ, JJ.
   SCHWARTZ, Chief Judge.

The record amply supports the determination that, rather than accepting a preferred position at a lower rate of pay or continuing in her present position at a higher rate, the appellant voluntarily quit her employment, and was therefore disqualified from unemployment compensation benefits. See Sollecito v. Hollywood Lincoln Mercury, Inc., 450 So.2d 928 (Fla. 4th DCA 1984); Arredondo v. Jackson Memorial Hospital, 412 So.2d 912 (Fla. 3d DCA 1982); Uniweld Products, Inc. v. Industrial Relations Commission, 277 So.2d 827 (Fla. 4th DCA 1973).

Affirmed.


text:
    Harvey VASSELL, Appellant, v. Nikkoll BOATWRIGHT, as Personal Representative of the Estate of Hyacinth Vassell, Deceased, Appellees.
    No. 3D03-291.
    District Court of Appeal of Florida, Third District.
    July 16, 2003.
    Jesse C. Jones, Coral Gables, for appellant.
    Philip D. Parrish, for appellee.
    Before GREEN and SHEVIN, JJ. and NESBITT, Senior Judge.
   PER CURIAM.

On the record before us, we agree with the trial court that the former husband failed to establish by clear and convincing evidence that the dissolution judgment had been procured by the former wife’s fraud. We therefore find no gross abuse of discretion in the trial court’s denial of his motion to set aside the decree made pursuant to Rule 1.520(b), Fla. R. Civ. P., and affirm. See LPP Mortgage Ltd. v. Bank of America, N.A, 826 So.2d 462 (Fla. 3d DCA 2002) (whether a relief from judgment should be granted is a fact specific question; trial court’s ruling should not be disturbed on appeal absent a gross abuse of discretion).


text:
    STATE of Florida, Appellant, v. The COMMITMENT OF Gerald TIMMS, Appellee.
    No. 4D00-3629.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.

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

The state appeals an order dismissing its second petition for Timms’ involuntary civil commitment under the Jimmy Ryce Act, sections 394.910 through 394.931, Florida Statutes (2000), because the state’s appeal of the dismissal of its first petition was still pending. The court determined that pending appeal divested it of jurisdiction to proceed on the second petition. Because the two petitions were identical as to the issues raised, the trial court correctly concluded it could not proceed with the second petition while the appeal of the first was pending. See Birnholz v. Steisel, 338 So.2d 862, 863 (Fla. 3d DCA 1976). However, instead of dismissing the petition, the trial court should have abated it until the conclusion of the first petition’s appeal. See id.; see also English v. Partsco Auto. Supply, Inc., 559 So.2d 375, 377 (Fla. 1st DCA 1990); State v. DeVore, 347 So.2d 753, 753 (Fla. 2d DCA 1977). We therefore reverse the order of dismissal with directions to abate the action until conclusion of the appeal of the first petition.

WARNER, KLEIN and SHAHOOD, JJ., concur.


text:
    Orville RUSSELL, Petitioner, v. Kenneth C. JENNE, Sheriff, Broward County, Respondent.
    No. 4D03-2090.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Lyon J. Greenblatt of Lyon J. Green-blatt, P.A., Plantation, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We grant Petitioner’s petition for writ of habeas corpus and remand for the trial court to set an expedited hearing to determine whether reasonable conditions of release would protect the community and assure Petitioner’s presence at trial. See Fla. R.Crim. P. 3.132(c)(2); Malave v. State, 727 So.2d 1002 (Fla. 4th DCA 1999); Daniels v. Jenne, 847 So.2d 1081 (Fla. 4th DCA 2003).

KLEIN, GROSS and TAYLOR, JJ., concur.


text:
    Walter WHITEHEAD, Petitioner, v. STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, BUREAU OF ADMINISTRATIVE REVIEWS, Respondent.
    No. 4D01-4603.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Jason T. Forman of Jason T. Forman, P.A., Fort Lauderdale, for petitioner.
    Enoch J. Whitney, General Counsel, and Rhonda M. Diamond, Assistant General Counsel, Miami, for respondent.
   PER CURIAM.

Walter Whitehead (Petitioner) seeks certiorari relief from a Broward County circuit court order denying his petition for writ of certiorari, which challenged the denial of his request for a hardship driver’s license. Petitioner’s third ground for relief was that the circuit court failed to apply the correct law when it concluded that chapter 98-223, Laws of Florida, was constitutional and did not violate the single subject rule contained in article III, Section 6 of the Florida Constitution. While the petition was pending on review in this court, the Florida Supreme Court decided the issue in Petitioner’s favor. See Fla. Dep’t of Highway Safety and Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003)(holding that chapter 98-223 violates the single subject requirement of the Florida Constitution), rehearing denied June 11, 2003. Accordingly, we grant relief based on the third ground only, quash the order on review, and remand for the circuit court to determine whether the valid laws in effect prior to the enactment of chapter 98-233 would have provided Petitioner with relief from the administrative order he challenged. See Jackson v. Dep’t of Highway Safety and Motor Vehicles, 848 So.2d 1165, 28 Fla. L. Weekly D1033 (Fla. 2d DCA Apr.25, 2003).

GUNTHER, STONE and MAY, JJ., concur.

      . We deny relief as to the first two grounds of the petition without discussion.


author: SHAHOOD, J.

text:
    A.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3964.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Consuelo Maingot, Assistant Attorney General, Fort Lauderdale, for appellee.
   SHAHOOD, J.

Appellant, A.M., appeals his Delinquency Disposition Order on the ground that he was not credited with 40 days time spent in juvenile detention pending final disposition on his battery charge. Appellee concedes, and we agree, that appellant should have been credited with 40 days served in secure detention prior to his commitment for the offense charged. See J.B. v. State, 829 So.2d 376 (Fla. 4th DCA 2002).

We therefore reverse and remand for the trial court to enter a corrected disposition order crediting appellant with 40 days for time spent in juvenile secured detention prior to commitment for this offense. Appellant does not have to be present for the trial court to enter the corrected disposition order.

REVERSED AND REMANDED.

STEVENSON and MAY, JJ, concur.


author: STONE, J.

text:
    Paul BOWLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2244.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We reverse Bowles’ conviction and sentence for possession of cocaine and possession of drug paraphernalia. Bowles asserts that the court erred by not allowing him to introduce rehabilitative evidence to counteract the prejudice that would arise from his admitted prior felony convictions. The state does not dispute that this was error. It argues only that the error was harmless. We disagree.

After the state rested, Bowles testified, in anticipation of later impeachment, that he had five prior felony convictions. Bowles was allowed to state that he had not gone to trial on any of the prior charges, but the court sustained the state’s objection as to further inquiry into whether the prior convictions had been resolved by guilty pleas.

In Lawhorne v. State, 500 So.2d 519, 522 (Fla.1986), the supreme court recognized that a defendant has a right to explain the circumstances of his prior convictions on direct examination in order to ameliorate the highly negative effect that such evidence was likely to have on the jury’s perception of the defendant in terms of his character and credibility. See also Ziermann v. State, 696 So.2d 491 (Fla. 4th DCA 1997).

In Ziermann, we concluded that a defendant must be permitted to explain that he pled guilty in a prior case because he was guilty, the implication to the jury being that, because he elected to go to trial in the present case, he is not guilty. Id. at 492. Here, had Bowles been allowed to testify that he admitted his guilt in the previous instances, the jury might have assigned more weight to his refusal to admit guilt in this case. It follows, applying Ziermann, that denying him the opportunity to do so is error.

Furthermore, we cannot agree that the error was harmless, as Bowles’ credibility was plainly at issue where his version of events directly contradicted the version given by the detective. See Goodwin v. State, 751 So.2d 537, 546 (Fla.1999); Ziermann, 696 So.2d at 492. Bowles’ testimony on the merits was that he was merely a guest in the house where the contraband was found. Bowles also contradicted the investigating detective’s testimony that he had told the detective where the drug paraphernalia would be found. Bowles claimed the contraband was simply found by the police during the search of the apartment.

Accordingly, Bowles’ conviction and sentence are reversed and the cause remanded for a new trial. As to the other issues raised on appeal, we find no error or abuse of discretion.

WARNER and STEVENSON, JJ., concur.


author: STEVENSON, J.

text:
    GLOBAL SATELLITE COMMUNICATION CO., d/b/a Group GSC, Appellant, v. Sari SUDLINE and Fernand Sultan, individually, Appellees.
    No. 4D02-3219.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.

      Jack Bariton of Jack Bariton, P.A., Plantation, for appellant.
    Scott M. Behren of Waldman, Feluren & Trigoboff, P.A., Weston, for appellees.
   STEVENSON, J.

The appellant, Global Satellite Communication Co., d/b/a Group GSC, a Florida corporation, appeals the dismissal of its complaint against appellees, Sari Sudline, a foreign corporation, and Fernand Sultan, an agent of Sudline, for lack of personal jurisdiction as to either defendant and for failure to state a cause of action against Sultan. We reverse the order of the trial court granting Sudline’s motion to dismiss for lack of personal jurisdiction. In all other respects, we affirm.

Sudline, the defendant below, is a French company with offices located in Marseille, France. According to the record, Sultan, Sudline’s agent, saw Global’s internet advertisement for cell phones. Sultan contacted Global in Florida about purchasing a large shipment and asked that a contract be sent. Pursuant to the terms of the written contract, Sudline agreed to purchase 15,000 cellular phones from Global, which were to be shipped in allotments to Dubai, Saudi Arabia.

The written contract was subsequently executed by both Sudline and Global. The contract was silent as to the place of payment, providing only that payment was to be made by “swift transfer.” Additionally, section twenty-one of the contract, entitled “Governing Law,” stated:

This Agreement shall be construed and enforced in accordance with the laws of the United States of America. Venue shall be in Broward County, Florida.

Subsequently, when Sudline refused to pay the initial deposit of $189,500, which was due prior to shipping, Global filed a two-count complaint for breach of contract against Sudline and Sultan, in his individual capacity. Appellees filed a motion to dismiss the complaint for improper service, lack of personal jurisdiction and failure to state a cause of action. The trial court granted the motion to dismiss based on lack of personal jurisdiction as to both Sudline and Sultan. Further, as to Sultan, individually, the trial court granted the motion for failure to state a cause of action, finding that there was no basis on which to hold Sultan personally liable on the contract, which he signed as a representative of Sudline.

Discussion

In Hartcourt Cos. v. Hogue, 817 So.2d 1067, 1070 (Fla. 5th DCA 2002), the court stated that

The determination of jurisdiction involves a two part inquiry. First, it must be determined whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of section 48.193, Florida’s long arm statute. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). If the allegations are within the ambit of the statute, it must then be determined whether the exercise of jurisdiction is consistent with due process.

Florida Statute section 48.193(l)(g) provides that statutory long-arm jurisdiction may be asserted over a nonresident for “[bjreaching a contract in this state by failing to perform acts required by the contract to be performed in this state.” Failure to pay a contractual debt where payment is due to be made in Florida is sufficient to satisfy Florida’s long-arm provision that refers to contractual acts “required” to be performed in Florida. See Hartcourt, 817 So.2d at 1070.

Florida courts have consistently held that where the contract is silent as to place of payment, it is presumed to be the place of residence of the payee. See Buto v. Sirius Int’l Ins. Co., 807 So.2d 674 (Fla. 3d DCA 2001); Harris v. Caribank, 536 So.2d 394 (Fla. 4th DCA 1989); First Nat’l Bank of Kissimmee v. Dunham, 342 So.2d 1021, 1022 (Fla. 4th DCA 1977)(stating “[t]he note does not mention the place of payment so it is payable at the residence of the payee”). Global had only two offices, one in Dade and the other in Broward County, Florida. Here, while the contract does not specifically state where payment would be made, under the foregoing case law, it would be presumed that payment was to be made in Florida. Thus, Sud-line’s failure to make payment in Florida would meet the requirements of the long-arm statute. See, e.g., Hartcourt; Kane v. Am. Bank of Merritt Island, 449 So.2d 974 (Fla. 5th DCA 1984).

We must next determine whether Sudline’s minimal contacts with Florida met the federal constitutional requirement of minimum contacts. “ ‘[T]he constitutional touchstone’ of the determination whether an exercise of personal jurisdiction comports with due process ‘remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.’ ” Asahi Metal Indus. Co. v. Superior Court of Cal., Solano County, 480 U.S. 102, 108-09, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). In Christus St. Joseph’s Health Systems v. Witt Biomedical Corp., 805 So.2d 1050, 1053 (Fla. 5th DCA 2002), the court noted that

Prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.

It has been held that the failure to pay money in Florida, standing alone, would not suffice to obtain jurisdiction over a nonresident defendant. See Christus St. Joseph’s Health Sys., 805 So.2d at 1054; Pres-Kap, Inc. v. Sys. One, Direct Access, Inc., 636 So.2d 1351 (Fla. 3d DCA 1994); Hatcher v. Hatcher, 598 So.2d 214 (Fla. 2d DCA 1992). But, where a requirement to pay money in Florida has been coupled with a Florida venue selection clause in a contract, courts have held that the nonresident defendant should reasonably expect to be haled into court in Florida. See, e.g., Desai Patel Sharma, Ltd. v. Don Bell Indus., Inc., 729 So.2d 453 (Fla. 5th DCA 1999); Dolphin Aviation, Inc. v. High Country Helicopters, Inc., 695 So.2d 811 (Fla. 2d DCA 1997); Jefferson Sav. & Loan Ass’n v. Greenman Group, Inc., 531 So.2d 428 (Fla. 4th DCA 1988); Maritime Ltd. P’ship. v. Greenman Adver. Assocs., Inc., 455 So.2d 1121 (Fla. 4th DCA 1984).

In Desai Patel Sharma, the Fifth District astutely observed that when jurisdiction is based on the breach of a contract in Florida coupled with a Florida venue selection clause, the defendant has given implied consent to personal jurisdiction in the forum State and has, in essence, conceded minimum contacts:

Personal jurisdiction, unlike subject matter jurisdiction, may be conferred by agreement. See for example, Burger King, [471 U.S. at 472 n. 14, 105 S.Ct. 2174]:

We have noted that, because the personal jurisdiction requirement is a waivable right, there are a “variety of legal arrangements” by which a litigant may give “express or implied consent to the personal jurisdiction of the court.” (citation omitted). For example, particularly in the commercial context, parties frequently stipulate in advance to submit their controversies for resolution within a particular jurisdiction. (citation omitted). When such forum-selection provisions have been obtained through “freely negotiated” agreements and are not “unreasonable and unjust,” (citation omitted) their enforcement does not offend due process.

729 So.2d at 454.

Accordingly, because compliance with both the Florida long-arm statute and the federal due process clause have been met, we reverse the trial court’s order granting the motion to dismiss for lack of personal jurisdiction as to Sudline.

AFFIRMED in part, REVERSED in part and REMANDED.

STONE and WARNER, JJ., concur.

      . Since we have concluded that the trial court was correct in finding that Sultan was not personally liable on the contract, the trial court’s order finding a lack of personal jurisdiction as to Sultan was also correct since Sultan would not have performed any act subjecting himself to the statutory long-arm jurisdiction of Florida.


text:
    SUBLIME, INC., Appellant, v. BOARDMAN’S INC., and Michael and Deborah Anderson, jointly and severally, Appellees.
    No. 4D02-1403.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.
    Wayne Kaplan of Wayne Kaplan, P.A., Boca Raton, for appellant.
    Michael Anderson and Deborah Anderson, Lauderhill, pro se.
   STONE, J.

The issue in this appeal is whether the trial court correctly limited the amount of Sublime’s judgment because the parties’ settlement agreement did not specify that time was “of the essence.” We reverse.

Sublime and Boardman’s entered into a three year commercial lease for premises in Sublime’s shopping center. Boardman’s had financial trouble and fourteen months before its expiration, Sublime agreed to an early termination of lease by a settlement agreement that provided for the payment of a termination fee and that the lease would be terminated under the following conditions:

the above Termination Fee is paid by Lessee by the fifth of the month as follows:
02/01/01 $2,457.67
03/01/01 $2,457.67
04/01/01 $2,457.67
05/01/01 $2,457.67

Should Lessee default on any of the above payments the total rent for the remainder of the lease in the sum of $36,865.05 shall be immediately due and payable.

Boardman’s failed to tender the payment due April 1st and Sublime sent Boardman’s a letter demanding payment of the remainder of the lease as specified in the settlement agreement. Subsequently, eighteen days past due and thirteen days past the grace period, the defaulted ' payment was tendered by check and rejected.

Sublime sued for breach of contract, alleging that it was due $36,865.05. At the hearing, Michael Anderson, for Board-man’s, testified that Sublime’s practice under the original lease had been to give him three days to make up late payments. (The three day notice was given immediately upon failure to make payment on the date due.)

Because the settlement agreement did not specify that time was of the essence, the trial court entered a final judgment in favor of Sublime for only $4,915.34, the payments past due for April and May. On de novo review, we conclude that the trial court erred in deciding that Sublime’s damages must be so limited.

To constitute a vital or material breach, a defendant’s non-performance must be such as to go to the essence of the contract. Beefy Trail, Inc. v. Beefy King Int’l, Inc., 267 So.2d 853, 857 (Fla. 4th DCA 1972). In National Exhibition Co. v. Ball, 139 So.2d 489 (Fla. 2d DCA 1962), the Second District correctly observed,

The modern trend of decisions concerning brief delays by one party in performance of a contract or conditions thereunder, in the absence of an express stipulation in the contract that time is of the essence, is not to treat such delays as a failure of a constructive condition discharging the other party unless performance on time was clearly an essential and vital part of the bargain.

Id. at 492,

As a general rule, time is considered to be of the essence where an agreement specifies, or where such may be determined from the nature of the subject matter of the contract, or where treating time as non-essential would produce a hardship, or where notice has been given to the defaulting party requiring that the contract be performed within a stated time, which must be a reasonable time according to the circumstances. See Blaustein v. Weiss, 409 So.2d 103, 105 (Fla. 4th DCA 1982).

Here, although there was no provision expressly stating that time was of the essence, any delay in payment was sheltered by a built in five day grace period and the agreement clearly specified that upon default, the stated amount would be “immediately” due and payable. This was sufficient to put Boardman’s on notice that failure to pay at the allotted time would result in a default and trigger the acceleration provision.

In Treasure Coast, Inc. v. Ludlum Construction Co., 760 So.2d 232 (Fla. 4th DCA 2000), this court reversed a trial court’s decision not to enforce the terms of a settlement agreement contract dispute. There, the agreement provided, in part:

1. Defendant shall pay the Plaintiff the total sum of $37,000.00 payable as follows: the first payment of $4,000.00 on or before June 1, 1999, and $5,000.00 on the first of each month until paid in full (final payment will be $3,000.00). If any payment is more than ten days late then the Plaintiff will be entitled to a judgment upon Affidavit against the Defendant for $65,000.00 less payments made.

Id. at 234. The defendant, Ludlum Construction, tendered its June and July payments within the ten day grace period; however, the $5,000 payment due August 1 was not received by the plaintiff until August 17, seven days after the expiration of the grace period. The trial court declined to enforce the settlement agreement on the ground that “[e]ntry of a judgment for full amt due to 17 days late payment made before any action taken shocks the conscience of the court.” Id.

This court reversed, stating that the trial court erred in “failing to enforce the unambiguous terms of the settlement agreement and in imposing its own remedy for appellee’s breach.” Id. In so holding, this court explained the consequence of breach of a commercial contract where time is essentially made of the essence, notwithstanding the absence of a clause specifically so stating:

When commercial parties agree that the debtor shall pay the creditor on or before a specific date, time being of the essence, they mean exactly that. The debtor shall deliver money to the creditor on or before the due date. There is almost always no such thing as “substantial performance” of payment between commercial parties when the duty is simply the general one to pay. Payment is either made in the amount and on the due date, or it is not. Although the agreement in this case did not contain a “time is of the essence” clause, the terms in this agreement clearly contained the express provision for payment of a sum certain on a specific date. In providing appellant with a specific remedy, judgment for the entire amount due and owing in the event of nonpayment, the parties essentially agreed that time was of the essence.

Id. at 235 (citations omitted); see also Hufcor/Gulfstream, Inc. v. Homestead Concrete & Drainage, Inc., 831 So.2d 767 (Fla. 4th DCA 2002)(holding that since payment was not received within the grace period following the notice of default, appellant was allowed to collect full amount owed under mediation agreement).

In Treasure Coast, although lacking the precise Blaustein factors, the agreement indicated that the parties had essentially agreed that time was of the essence by the inclusion of a grace period before total default would be triggered, thereby placing the defaulter on notice that payment on the specified date was an essential part of the bargain. Here, the required notice is provided, in a commercial setting, by including both a five day grace period and the term “immediately.” We also note that in this case, as in Treasure Coast, the contract in question was a settlement agreement, here resolving an impending default.

We have considered Rose v. Ditto, 804 So.2d 351 (Fla. 4th DCA 2001), and deem it inapposite. In Rose, a former husband owed $31,700 in child support arrearages. The parties entered into a post-dissolution of marriage mediation agreement in which they agreed to limit the amount of arrear-ages due to $20,000, payable in two equal installments. If payment was not made in accordance with the schedule, the former wife could seek recovery of the “ftill amount of arrears plus interest.” Id. at 352. The former husband made his first payment two days late. The former wife recovered the $31,700 owed, plus interest, and this court reversed, distinguishing the case from Treasure Coast. There, we recognized that the ease did not involve a commercial transaction, nor did the agreement specify that time was of the essence and, unlike Treasure Coast, there was no grace period that would have put the former husband on notice that delay in payment would accelerate payments due. We, therefore, concluded that the breach was not material. Id. at 353.

The circumstances of this case are clearly more analogous to Treasure Coast than to Rose, where, here, the agreement in question is a commercial contract containing a grace period that put Boardman’s on notice that delay in payment would accelerate the balance due. Therefore, the final judgment is reversed and remanded for entry of a modified judgment in favor of Sublime in accordance with this opinion.

WARNER and STEVENSON, JJ., concur.

      . Although Boardman's was barred from participating in the appeal by order of this court, Boardman’s was the tenant in the lease.


author: WARNER, J.

text:
    D.D., The Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D03-160.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.

      Christopher DeSantis, Port St. Lucie, for appellant.
    Crystal Y. Yates-Hammond, Fort Pierce, for appellee.
   WARNER, J.

D.D. appeals the trial court’s order adjudicating his daughter dependent. We affirm as to all issues but write to address his contention that the court erred in denying his motion to dismiss because the state failed to hold a dependency trial within thirty days as provided in section 39.507(l)(a), Florida Statutes (2001).

The Department of Children and Families (“DCF”) filed the petition for dependency against the father on June 6, 2002. Prior to his arraignment, DCF met several times with D.D. regarding settling the case. At his arraignment on June 19, 2002, he appeared without counsel and indicated that he was to enter into a case plan. To protect the father’s interest, the trial court entered a denial and indicated a settlement conference could be set with DCF. The court set the case for docket sounding on August 9. Before that date, the father’s counsel called DCF to continue the judicial review until August 19. At the hearing, counsel informed the court that the father had terminated his services and that the father was requesting a continuance because he objected to the proposed findings. The trial court denied the continuance, appointed new counsel, and set the trial for September 3, indicating that the matter was not to be delayed any further. On August 26, D.D.’s new counsel filed a motion to dismiss the petition for lack of timely prosecution, noting the failure to commence a trial within thirty days of D.D.’s arraignment and set it to be heard on the first day of trial. However, at the trial, the court indicated D.D. had waived all of his pre-trial motions when he indicated he was ready for trial. Although the court was willing to continue the proceeding, the father decided to proceed with the trial. DCF, however, requested a continuance because its subpoenas had not been issued. Over the father’s objection, the court granted the continuance but still refused to hear the father’s motion to dismiss.

Before the next trial date, the trial judge recused himself and cancelled all hearings before him. The successor judge granted the father’s motion to expedite and set a trial for November 25. The trial court also heard argument on the father’s motion to dismiss. The father argued that the supreme court’s opinion in State v. Goode, 830 So.2d 817, 825-26 (Fla.2002), holding that the thirty-day time frame for hearing involuntary commitment proceedings under the Jimmy Ryce Act was mandatory, should apply to the time limitation in section 39.507(l)(a). The court denied the motion to dismiss, concluding that dismissal of the petition was not in the child’s best interest. It also found that the time periods in Chapter 39 were directory because, unlike the Jimmy Ryce Act, dependency cases do not involve serious deprivations of children’s liberty interests. The court proceeded with the trial and adjudicated the child dependent as to D.D., the father.

The father maintains the time limitation in section 39.507(l)(a) should be interpreted as a mandatory speedy trial requirement. That section provides:

The adjudicatory hearing shall be held as soon as practicable after the petition for dependency is filed and in accordance with the Florida Rules of Juvenile Procedure, but no later than 30 days after the arraignment.

In M.T. v. Department of Children & Families, 816 So.2d 227, 229 (Fla. 5th DCA 2002), the fifth district rejected a similar argument. Like here, at the parents’ arraignment, the trial court set trial beyond the thirty-day time limitation under 39.507(l)(a), and the adjudicatory hearing was not conducted until six months after their arraignment. The parents moved to dismiss at trial for violation of the statute. The trial court agreed and dismissed the action. See id. at 228. The opinion noted that formerly, the Florida Rules of Juvenile Procedure applied a speedy trial rule to both delinquency and dependency matters, see Fla. R. Juv. P. 8.180 (1984), but due to subsequent amendments a rule governing speedy trial applicable to dependency was eliminated. See Petition of Fla. Bar to Amend Fla. Rules of Juv. P., 462 So.2d 399 (Fla.1984). Currently, the only juvenile rule governing speedy trial is Rule 8.090, which rule applies only to delinquency proceedings. See M.T., 816 So.2d at 229. Thus, the court held the time limitation in section 39.507(l)(a) was not a jurisdictional speedy trial period.

While the father acknowledges the fifth district’s holding in M.T., he argues the case is no longer controlling based upon the holding in Goode, involving the Jimmy Ryce Act time limitation. Because the dependency statute has a similar time limitation, the father contends it also should be mandatory. See 830 So.2d at 828 The particular section under review in Goode, section 394.916(1), Florida Statutes (1999), states, that “[w]ithin 30 days after the determination of probable cause, the court shall conduct a trial to determine whether the person is a sexually violent predator.” (Emphasis added). The court analyzed the use of the word “shall” and noted that its interpretation depended upon the context in which it is used and the Legislature’s intent. See Goode, 830 So.2d at 823. For example, courts generally construe “shall” as mandatory when it refers to an action preceding the possible deprivation of a substantive right. See id. Due to the serious deprivation of liberty which could accompany Jimmy Ryce commitment proceedings, the court concluded that the time period must be mandatory to satisfy due process concerns. To hold otherwise would leave the defendant without any due process protections and the statute without any mechanism to ensure the defendant’s civil commitment was resolved prior to the expiration of the prison sentence as intended by the Legislature. See id.

Relying upon this rationale, the father maintains the thirty-day time period under section 39.507(l)(a) should be interpreted as a mandatory time limitation where Chapter 39 implicates the “longstanding and fundamental liberty interest of parents in determining the care and upbringing of their children free from the heavy hand of government paternalism.” Padgett v. Dep’t of Health & Rehabilitative Serv., 577 So.2d 565, 570 (Fla.1991). However, the father’s argument overlooks the fact that this parental right is not absolute “but subject to the overriding principle that it is the ultimate welfare or best interest of the child which must prevail.” Id. As such, the government has a compelling interest to protect children from threats of abuse, neglect and death. See id. The state does not violate the compelling state interest standard when, pursuant to its authority under Chapter 39, it interferes with the parent’s fundamental right to raise their children. See Beagle v. Beagle, 678 So.2d 1271, 1276 (Fla.1996), abrogation recognized by, Lonon v. Ferrell, 739 So.2d 650, 651-52 (Fla. 2d DCA 1999).

Despite this precedent, the father maintains the state is not exercising its right to protect the child in the least restrictive manner when it fails to conduct the adjudicatory hearing within the thirty-day time limitation under section 39.507(l)(a), impeding his fundamental right to parent. We disagree that the time limitation should be interpreted as mandatory, as it was in Goode, where different interests are sought to be protected under these statutes. The thirty-day limitation in the Jimmy Ryce Act protects the due process rights of the individual facing further indefinite commitment subsequent to the expiration of the prison sentence. See Goode, 830 So.2d at 825-26. In dependency proceedings, the state’s interest is to protect the child’s well-being, which is paramount to the parent’s interest.

Moreover, unlike the Jimmy Ryce Act, Chapter 39 contains exceptions to the time limitations contained therein. Section 39.013(10) allows for reasonable periods of delay as the result of continuances granted to the parents or the child’s guardian, the unavailability of witnesses or evidence, and to accomplish notice on the parents. Further, section 39.013(10)(e) and (f) show that the child’s best interests are the overriding interest:

(e) Notwithstanding the foregoing, continuances and extensions of time are limited to the number of days absolutely necessary to complete a necessary task in order to preserve the rights of a party or the best interests of a child. Time is of the essence for the best interests of dependent children in conducting dependency proceedings in accordance with the time limitations set forth in this chapter. Time limitations are a right of the child which may not he waived, extended, or continued at the request of any party in advance of the particular circumstances or need arising upon which delay of the proceedings may be warranted.
(f) Continuances or extensions of time may not total more than 60 days for all parties within any 12 month period during proceedings under this chapter. A continuance or extension of time beyond the 60 days may he granted only for extraordinary circumstances necessary to preserve the constitutional rights of a party or when substantial evidence demonstrates that the child’s best interests will be affirmatively harmed without the granting of a continuance or extension of time.

(Emphasis added). These provisions reinforce the conclusion that the time limitation is not mandatory for the protection of the parent’s rights but directory for the protection of the child.

Finally, the trial court determined that dismissal for failure to try the dependency action within the thirty days provided in section 39.507(l)(a) was not in the best interest of the child. Such a ruling would be subject to review on an abuse of discretion, which clearly is not shown here.

Affirmed.

KLEIN and SHAHOOD, JJ., concur.

      . Although these sections became effective on July 1, 2002, after the petition was filed in this case, because they are procedural or remedial, they apply retroactively to pending cases. See Gupton v. Village Key & Saw Shop, Inc., 656 So.2d 475, 477 (Fla.1995).


text:
    Jon C. FORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4013.
    District Court of Appeal of Florida, Fourth District.
    July 16, 2003.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant entered pleas of nolo conten-dere in open court to five counts as charged in the Information, including grand theft of a motor vehicle (count I) and grand theft of construction equipment and/or tools (count II) and was given consecutive sentences on these two counts.

On appeal, appellant claims that his conviction for grand theft in count II is viola-tive of the double jeopardy clause, as it was subsumed into his conviction for grand theft in count I. The state concedes error and we agree that reversal is required.

Because appellant pled in open court to the charges against him, there is nothing to suggest that he waived his right to raise this double jeopardy violation. See Novaton v. State, 634 So.2d 607, 608 (Fla.1994).

In Beaudry v. State, 809 So.2d 83 (Fla. 5th DCA 2002), the defendant stole a car containing computer equipment and was convicted of grand theft of a motor vehicle and grand theft of $10,000 or more. The Fifth District held that double jeopardy precluded convictions for both grand theft of a motor vehicle and grand theft of the contents of the vehicle (computer equipment), when there was only one act of taking, i.e., the car and its contents, with no geographic or temporal separations between the two acts of taking. See id. at 84; see also Sirmons v. State, 634 So.2d 153 (Fla.1994)(defendant could not be convicted separately for offenses of robbery with a weapon and grand theft of automobile based on single taking of the automobile at knife point; both offenses were merely aggravated forms of the same underlying theft and occurred simultaneously).

In this case, like Beaudry, appellant’s taking of the vehicle occurred simultaneously with the taking of the construction equipment which was inside the vehicle at the time of the vehicle theft. Thus, there was no separation of time, place or circumstances between the takings to make the two offenses separate and distinct. Accordingly, the grand theft of construction equipment in count II is subsumed into the grand theft of a motor vehicle in count I.

REVERSED AND REMANDED.

WARNER and KLEIN, JJ., concur.


author: KELLY, Judge.

text:
    Stephanie NICHOLS, Appellant, v. Monty L. PREISER, Appellee.
    No. 2D01-5495.
    District Court of Appeal of Florida, Second District.
    July 18, 2003.

      Joseph C. Hood, Tampa, and Carmen R. Gillett, Sarasota, for Appellant.
    Monty L. Preiser, pro se.
   KELLY, Judge.

Stephanie Nichols appeals from a final summary judgment in an action for legal malpractice against Monty Preiser. Because the record reflects a genuine issue of material fact, we reverse.

In her action against Preiser, Nichols alleges she retained Preiser in early 1996 to pursue a malpractice action against a dentist who had performed two surgeries on her, one in May of 1993 and the second in January of 1994. Nichols contends that because of Preiser’s negligence, her malpractice claims against the dentist were ultimately found to be barred by the statute of limitations. Preiser moved for summary judgment arguing that Nichols’ interrogatory answers established that the statute of limitations on her dental malpractice claims had expired before she retained Preiser. Nichols contends that summary judgment was not proper because there is a question of fact regarding when the statute of limitations began to run on her dental malpractice claims.

We agree with Nichols that a factual issue remains regarding when the statute of limitations began to run on her claims. The record reflects that Nichols served interrogatory answers indicating that the statute of limitations began to run on each claim on the corresponding date of surgery. Shortly thereafter, Nichols served a second set of interrogatory answers indicating that the statute began to run in January 1996 when another doctor advised her the surgeries had been negligently performed. Preiser moved for summary judgment based on Nichols’ first interrogatory answers and asked the trial court to strike the second set of answers. The trial court denied Preiser’s motion to strike, and Preiser has not cross-appealed that ruling. Accordingly, the record contains conflicting statements from Nichols regarding when the statute of limitations began to run on her claims.

This does not end our inquiry, however, because the existence of a disputed issue of fact does not preclude summary judgment if the disputed fact is not material. See Fla. R. Civ. P. 1.510(c). Accordingly, we must consider whether in this case the date the statute of limitations began to run is material. To state a claim for legal malpractice, the plaintiff must have some valid claim that is compromised by the negligent actions or omissions of her attorney. Silvestrone v. Edell, 721 So.2d 1173 (Fla.1998). Accordingly, if Nichols’ dental malpractice claims were not compromised by Preiser’s actions regardless of when the statute of limitations began to run, then the issue of when the statute began to run is immaterial and will not preclude summary judgment.

As to the 1993 surgery, if the two-year statute of limitations began to run on that claim in May 1993, Nichols’ claim would have been barred before she ever met with Preiser. If, on the other hand, the statute of limitations began to run in January 1996, Nichols’ claim would not have been barred until January 1998; however, her claim would have been extinguished by the statute of repose in May 1997. See § 95.11(4)(b), Fla. Stat. (2000). Nichols retained Preiser in early 1997, and in April 1997, he filed a notice of intent to sue as required by section 766.106, Florida Statutes (1997). The notice did not mention Nichols’ 1993 surgery, instead indicating only that it was Nichols’ intent to bring a claim as a result of the 1994 surgery.

When Preiser eventually filed suit on Nichols’ behalf in October 1997, he asserted claims based on the 1993 surgery, but those claims were dismissed for failure to comply with presuit screening requirements. By that time, more than four years had elapsed since the 1993 surgery, and the statute of repose precluded Nichols from trying to again assert those claims. Accordingly, the date the statute of limitations began to run on Nichols’ claim based on the 1993 surgery is material to the issue of whether she can state a claim against Preiser, and the summary judgment must be reversed as to that claim.

As to the 1994 claim, if the statute of limitations began to run in January 1994, Nichols’ claim would have been extinguished before she ever met with Preiser. If, however, it began to run in January 1996, Nichols’ claim was still viable when she first met with Preiser. Nichols alleged that when Preiser filed suit on her claim, he failed to allege any negligent conduct or occurrence relating to the 1994 claim and that he failed to cure the defective complaint before the statute of limitations ran on her claim. Preiser argues that Nichols discharged him before the statute of limitations ran, and Nichols and the attorney that succeeded him had an opportunity to cure the defect before her claim was extinguished and failed to do so.

The problem with this argument is that Preiser failed to conclusively establish whether or when Nichols discharged him. To establish this fact, Preiser attached some letters to his motion for summary judgment. Simply attaching documents that are not sworn or certified to a motion for summary judgment does not satisfy the procedural requirements of Florida Rule of Civil Procedure 1.510(e). Bifulco v. State Farm, Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997). Because the documents Preiser relied on were not properly authenticated, the trial court could not properly consider them in deciding a motion for summary judgment. See Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So.2d 617, 618 (Fla. 2d DCA 1997). Without that information, the trial court had no basis to conclude that Nichols’ claim was not compromised by Preiser’s actions. Accordingly, the summary judgment as to the 1994 claim must also be reversed.

Reversed and remanded.

CASANUEVA and DAVIS, JJ., concur.

      . The applicable statute of limitations is contained in section 95.1 l(4)(b), Florida Statutes (2000), which requires that the claim be filed within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence. That section also provides that in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued.

      . We have not considered whether Preiser's argument constitutes a meritorious defense to Nichols’ claim.


author: FULMER, Judge.

text:
    Sandra LYNN, Appellant, v. Carolyn FELDMETH, Appellee.
    No. 2D02-3760.
    District Court of Appeal of Florida, Second District.
    July 18, 2003.

      John T. Golding of the Law Office of John T. Golding, P.A., Tampa, and Betsy E. Gallagher and Dorothy C. Venable of Gallagher & Howard, P.A., Tampa, co-counsel for Appellant.
    Mark C. Menser of Viles Law Firm, P.A., Fort Myers, for Appellee.
   FULMER, Judge.

Sandra Lynn appeals the final judgment entered against her in an action arising out of an automobile accident. Lynn specifically challenges the trial court’s denial of her motion to reduce the judgment which she filed pursuant to section 324.021(9)(b)(3), Florida Statutes (1999), a provision that, under certain circumstances, limits the liability of a motor vehicle owner who loans the vehicle to a permissive user. The trial court denied Lynn’s motion because it concluded that the statute did not apply to the factual circumstances of this case. We disagree with the trial court’s interpretation of the statute and reverse for further proceedings on the motion.

Carolyn Feldmeth sued Tonya Dykstra as the driver of the vehicle at fault in the accident and Sandra Lynn as the owner of the vehicle driven by Dykstra. The jury returned a total compensatory verdict for Feldmeth in the amount of $252,471.78, which was reduced by setoffs to $242,471.78. The verdict form does not differentiate between Dykstra and Lynn as to liability for compensatory damages. The jury also assessed punitive damages of $5000 against Dykstra.

Lynn filed a motion seeking to reduce the judgment against her pursuant to section 324.021(9)(b)(3), which provides:

The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the permissive user of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the owner shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the owner for economic damages shall be reduced by amounts actually recovered from the permissive user and from any insurance or self-insurance covering the permissive user. Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.

After a hearing, the trial court entered an order denying Lynn’s motion. The order recites the trial court’s conclusion “that [section] 324.021(9)(b)(3), Florida Statutes, applies only to motor vehicle lessor/lessee relationships, which was not present in the subject case.” We disagree.

A plain reading of this section leads us to conclude that the trial court erred in construing it to only apply to lessor/lessee relationships. Because Lynn is a “natural person” and she loaned the vehicle to a “permissive user,” the statute is applicable to the facts of this case.

Feldmeth argues on appeal that even if the trial court’s interpretation of the statute was incorrect, this court should affirm because Lynn waived the right to assert the statutory cap on liability. The first reason Feldmeth gives for the waiver argument is that Lynn did not plead the statutory cap as an affirmative defense. We reject this argument because we agree with Lynn that the statutory damage cap is not an affirmative defense because it does not, in whole or in part, bar or void the cause of action. See Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Meeks, 560 So.2d 778, 780 (Fla.1990); FDIC v. Brodie, 602 So.2d 1358, 1362 (Fla. 3d DCA 1992); see also Cohen v. DeYoung, 655 So.2d 1265, 1267 (Fla. 5th DCA 1995) (distinguishing statutory cap on damages from affirmative defense to underlying suit).

Feldmeth also argues that Lynn waived her right to assert the statutory cap because she entered into a pretrial stipulation by which she agreed to be vicariously hable for all compensatory damages regardless of the statutory cap. Feldmeth’s argument refers to a pretrial stipulation which provides that Lynn “will not pursue any defense with regards to ownership, consent, or vicarious liability.” Lynn counters that Feldmeth has not presented this argument to the trial court and asserts that the intent and purpose of the parties’ pretrial stipulation is a contested issue of fact which cannot be resolved on appeal.

The record reflects that Feldmeth mentioned the stipulation at the hearing on Lynn’s motion, and the trial court made a comment to indicate that it agreed with counsel for Lynn that the stipulation did not operate as a waiver of Lynn’s right to the statutory cap. However, because the trial court accepted the argument presented by Feldmeth that section 324.021 only applies to situations involving leased or rented vehicles, the trial court’s order did not reach the issue of the effect of the parties’ stipulation on Lynn’s right to assert the statutory cap. We leave it to the trial court to decide this issue on remand because to do otherwise would require us to rule on the intent and purpose of the stipulation in the first instance, which is contrary to our function as a reviewing court. See State v. Deferance, 807 So.2d 806 (Fla. 4th DCA 2002); Commercial Union Ins. Co. v. Velazquez, 464 So.2d 210 (Fla. 3d DCA 1985).

Reversed and remanded for further proceedings.

WHATLEY and COVINGTON, JJ., Concur.


text:
    Thomas B. MATTHEWS, as Assignee of Robert L. Jackson, Appellant, v. Davis E. CHAFFEE, Appellee.
    No. 2D02-3005.
    District Court of Appeal of Florida, Second District.
    July 18, 2003.

      Thomas B. Matthews, pro se.
    Lisa N. Kellogg and Gregory M. McCos-key of Glenn, Rasmussen, Fogarty & Hooker, P.A., Tampa, for Appellee.
   FULMER, Judge.

Thomas B. Matthews appeals from an order dismissing his amended complaint with prejudice because Matthews failed to comply with the time limit set by the trial court for fifing the amended complaint. We reverse and remand for further proceedings because the order of dismissal does not make an explicit finding of willful noncompliance with the court’s prior order.

On August 28, 1998, Robert L. Jackson filed a four-count complaint seeking damages from Davis E. Chaffee and The Safety Harbor Group, Inc. The defendants moved to dismiss based on insufficient service of process, failure to state a cause of action, and failure to prosecute. In January 2001, Jackson filed a motion for substitution of parties, requesting the trial court to substitute Thomas B. Matthews as the plaintiff because Jackson had assigned his rights to Matthews. In February 2001, after a hearing, the trial court entered an order dismissing count three with prejudice and dismissing counts one, two, and four with leave to amend within ten days.

Matthews filed an amended complaint in March 2002, alleging breach of contract solely against Chaffee. Chaffee responded with a motion to dismiss, asserting as grounds: (1) that Matthews failed to comply with the February 2001 order by fifing his amended complaint within ten days; (2) that Matthews failed to prosecute for over one year, and therefore dismissal was proper under Florida Rule of Civil Procedure 1.420(e); and (3) that both counts failed to state a cause of action. Matthews submitted an affidavit of Jackson addressing the delay. After a hearing, the trial court entered an order dismissing the complaint with prejudice, which stated: “Plaintiff admits failure to comply with this Court’s order regarding the fifing of an amended complaint within the time specified in the Court’s last order dismissing his complaint, and failed to present sufficient evidence to justify the one year delay in fifing an amended pleading.”

On appeal, Matthews contends that the trial court’s order is deficient in that it dismissed his complaint as a sanction for failure to comply with the ten-day time restriction in the prior order and did so without making an express finding that noncompfiance was willful or in deliberate disregard of the court’s prior order. We agree. Dismissal with prejudice is a severe sanction that should only be employed in extreme circumstances. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1272 (Fla.1990). Such orders are reviewed for an abuse of discretion. Id. at 1273. Where a trial court exercises that discretion, the trial court must make an explicit finding of willful noneompliance or deliberate disregard. Id.; see also Marr v. State Dep’t of Transp., 614 So.2d 619 (Fla. 2d DCA 1993). The court’s order in this case falls short of making the necessary finding to justify dismissal with prejudice.

Accordingly, we reverse and remand for the trial court to reconsider the motion to dismiss and, if appropriate, to make an explicit determination whether Matthews willfully failed to comply with the February 2001 order.

Reversed and remanded.

CASANUEVA and CANADY, JJ„ Concur.


author: SALCINES, Judge.

text:
    Vermont SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1203.
    District Court of Appeal of Florida, Second District.
    July 18, 2003.
    James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Vermont Smith asserts that the trial court erred when it failed to appoint conflict-free counsel to represent him and summarily denied his motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170®. We agree and reverse.

An indigent defendant has the right to court-appointed counsel to assist in filing a rule 3.170(0 motion. Padgett v. State, 743 So.2d 70, 73 (Fla. 4th DCA 1999); see also Lester v. State, 820 So.2d 1078, 1078 (Fla. 1st DCA 2002) (holding “once a defendant indicates his desire to avail himself of the rule 3.170(0 procedure, the trial court must appoint conflict-free counsel to advise and assist the defendant in this regard”).

In the present case, the trial court addressed the merits of Smith’s pro se motion and summarily denied relief. On appeal the State urges this court to hold that it was harmless error for the trial court to have denied Smith’s motion because the plea colloquy demonstrates that Smith understood the consequences of his plea. This argument is not persuasive because the issue on appeal is not whether the motion was meritorious but whether Smith was denied conflict-free counsel at a critical stage of the proceedings. See Williams v. State, 793 So.2d 1112 (Fla. 4th DCA 2001) (holding rule 3.170© proceeding is a critical stage in proceedings at which defendant is entitled to counsel). The denial of the right to counsel is not subject to a harmless error analysis. Pad-gett, 743 So.2d at 74. Accordingly, we reverse the order denying the motion and direct the trial court to appoint conflict-free counsel to advise and assist Smith with his rule 3.170© motion.

Reversed and remanded with directions.

FULMER and VILLANTI, JJ., Concur.


author: /s/ John L. Weimer Justice, Supreme Court of Louisiana CALOGERO, Chief Justice,

text:
    R2D2B2 L.L.C. d/b/a Venetian Isles Marina & Seafood Dock, v. CITY OF NEW ORLEANS.
    No. 2003-C-0281.
    Supreme Court of Louisiana.
    May 2, 2003.
   ORDER

WRIT GRANTED IN PART; DENIED IN PART.

IT IS ORDERED that the portion of the court of appeal opinion reversing the the denial of a preliminary injunction in favor of plaintiff be reversed and the judgment of the trial court denying the preliminary injunction be hereby reinstated. An appeal from an order or judgment relating to a preliminary injunction must be taken within fifteen days from the date of the order or judgment. LSA-C.C.P. art. 3612(C).

IT IS FURTHER ORDERED that the remainder of the writ be denied.

/s/ John L. Weimer Justice, Supreme Court of Louisiana

CALOGERO, C.J., concurs with reasons.

CALOGERO, Chief Justice,

concurring.

I agree that the court of appeal decision reversing the trial court judgment on the preliminary injunction in favor of the plaintiff must be reversed because the appeal was not filed within the 15-day period established by La.Rev.Stat. art. 3612(C) for appealing an order regarding a preliminary injunction. Under the law, a consequence of this court’s action is that the plaintiff will not be enjoined from operating as a marina, but will be enjoined as operating a wholesale seafood dock, until and unless a preliminary injunction is granted by the district court.


author: /s/ John L. Weimer Justice, Supreme Court of Louisiana CALOGERO, Chief Justice

text:
    R2D2B2, L.L.C., D/B/A Venetian Isles Marina & Seafood Dock v. CITY OF NEW ORLEANS.
    No. 2003-C-0310.
    Supreme Court of Louisiana.
    April 30, 2003.
   ORDER

WRIT GRANTED IN PART, DENIED IN PART.

IT IS ORDERED that the portion of the court of appeal opinion reversing the denial of a preliminary injunction in favor of plaintiff be reversed and the judgment of the trial court denying the preliminary injunction be hereby reinstated. An appeal from an order or judgment relating to a preliminary injunction must be taken within fifteen days from the date of the order or judgment. LSA-C.C.P. art. 3612(C).

IT IS FURTHER ORDERED that the remainder of the writ be denied.

/s/ John L. Weimer Justice, Supreme Court of Louisiana

CALOGERO, C.J., concurs with reasons.

CALOGERO, Chief Justice

concurring.

I agree that the court of appeal decision reversing the trial court judgment on the preliminary injunction in favor of the plaintiff must be reversed because the appeal was not filed within the 15-day period established by La.Rev.Stat. art. 3612(C) for appealing an order regarding a preliminary injunction. Under the law, a consequence of this court’s action is that the plaintiff will not be enjoined from operating as a marina, but will be enjoined as operating a wholesale seafood dock, until and unless a preliminary injunction is granted by the district court.