author: LEVY, Judge.

text:
    Pledge DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3533.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Rehearing and Certification Denied Feb. 12, 2003.
    Bennett H. Brummer, Public Defender, and Sheryl J. Lowenthal, Special Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.

      Before SCHWARTZ, C.J., and LEVY and GREEN, JJ.
   LEVY, Judge.

Defendant appeals his convictions on the ground that the trial court failed to inquire into the potential conflict involving defendant’s counsel. We disagree with defendant’s argument on appeal that the trial court’s failure to inquire into the conflict involving defense counsel requires automatic reversal. Defendant relies on Thomas v. State, 785 So.2d 626 (Fla. 2d DCA 2001) and Lee v. State, 690 So.2d 664 (Fla. 1st DCA 1997) to support his argument. However, this argument was specifically dismissed by the Supreme Court of the United States in Mickens wherein the Court explained:

[Defendant’s proposed rule of automatic reversal when there existed a conflict that did not affect counsel’s performance, but the trial judge failed to make the Sullivan[ ]-mandated inquiry, makes ’ little policy sense. As discussed, the rule applied when the trial judge is not aware of the conflict (and thus not obligated to inquire) is that prejudice will be presumed only if the conflict has significantly affected counsel’s performance— thereby rendering the verdict unreliable, even though Strickland prejudice cannot be shown. The trial court’s awareness of a potential conflict neither renders it more likely that counsel’s performance was significantly affected nor in any other way renders the verdict unreliable. Nor does the trial judge’s failure to make the Sullivan-mandated inquiry often make it harder for reviewing courts to determine conflict and effect, particularly since those courts may rely on evidence and testimony whose importance only becomes established at the trial.
Nor, finally, is automatic reversal simply an appropriate means of enforcing Sullivan’s mandate of inquiry.

Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 1244, 152 L.Ed.2d 291, 304-05 (2002) (citations omitted)(footnote added). Moreover, Lee and Thomas address a much different question regarding whether a defendant properly waives his right to conflict-free counsel after the trial court recognizes the conflict but fails to address the defendant regarding his understanding of the conflict and available options. Additionally, counsel’s conflict in each of those cases manifested itself during the course of the trial. In each case, counsel was restricted during cross-examination of state witnesses by the attorney-client privilege because counsel had previously represented the state witnesses in unrelated matters. See Lee, 690 So.2d at 665; Thomas, 785 So.2d at 627-28. See also United States v. McLain, 823 F.2d 1457, 1464 (11th Cir.1987)(where defense counsel was under investigation during the course of trial by the same United States Attorney’s office prosecuting the defendant, the “conflict manifested itself in [counsel’s] benefit from [defendant’s], prolonged trial” where evidence reflected that the government would not indict counsel until defendant’s trial ended.); see also Forsett v. State, 790 So.2d 474 (Fla. 2d DCA 2001).

In Herring v. State, the Supreme Court of Florida distinguished an “actual conflict” from a potential or speculative conflict. See Herring, 730 So.2d at 1267. The Court explained:

To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were impaired or compromised for the benefit of the lawyer or another party.... Without this factual showing of inconsistent interests, the conflict is merely possible or speculative, and, under Cuyler, such a conflict is “insufficient to impugn a criminal conviction.”

Herring, 730 So.2d at 1267 (citations omitted). See also Mickens v. Taylor, 122 S.Ct. at 1243. Thus, where, as here, defendant raises the conflict after he was convicted, the defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance.” See Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); see also Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 1245, 152 L.Ed.2d 291, 305-06 (2002); Hunter v. State, 817 So.2d 786, 791-92 (Fla.2002); Herring v. State, 730 So.2d 1264, 1267 (Fla.1998).

While defendant in the instant case demonstrated that a conflict involving his trial counsel existed, defendant failed to show that the conflict impaired or compromised his interests for the benefit of counsel. See Hunter v. State, 817 So.2d 786, 793 (Fla.2002). The Record is devoid of any evidence which demonstrates that such conflict adversely affected counsel’s representation. See id. In fact, the trial court specifically commended counsel’s representation of the defendant.

On the authority of Herring and Mick-ens, we conclude that automatic reversal is not warranted simply upon a defendant demonstrating that a conflict involving defense counsel exists. Rather, a defendant challenging his conviction on the basis of conflict with their counsel must also demonstrate that the conflict affected counsel’s performance. Cf. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)(approving automatic reversal where counsel was required to continue his representation of the defendant despite counsel’s own objection on the basis that the conflict was affecting his representation). Accordingly, we affirm defendant’s conviction and sentence.

Affirmed.

      . In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Court declined to extend automatic reversal and held that "absent objection, a defendant must demonstrate that 'a conflict of interest actually affected the adequacy of his representation.’ " The Court addressed the trial court’s duty to inquire into the propriety of multiple representation of defendants where the court knows or should know that a conflict exists. See Sullivan, 446 U.S. at 349-50, 100 S.Ct. 1708.


source: Caselaw Access Project

author: COBB, J.

license: Public Domain

text:
    Zeferino Ortiz RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-26.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.
    Rehearing Denied Feb. 12, 2003.

      James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COBB, J.

The Appellant, Rodriguez, caused a two-car accident in which one person was killed and several others were injured. The van Rodriguez was driving contained two beer bottles between the driver and passenger seats. One of the beer bottles was open and the bottles were cold to the touch. Another cold beer bottle was on the ground near the van. Rodriguez had a strong odor of alcohol.

A state trooper, Gikas, investigated at the scene and spoke with witnesses Tom and Donna Luffman. In addition, Gikas reported Rodriguez had noticeably bloodshot eyes. Based on his investigation, Trooper Gikas believed that there was a reasonable basis for him to conclude that Rodriguez was under the influence to the extent that his normal faculties were impaired. As such, a blood draw was ordered. See § 316.1933(1), Fla. Stat. (2000).

Trooper Kline testified that when he arrived at the accident scene he observed a twist-off cap to a Bud Light beer bottle on the driver’s side floor board and another twist-off cap to a Bud Light beer bottle up on the dashboard of Rodriguez’s van. The accident was caused, according to Kline, by Rodriguez failing to yield the right of way when he turned left across the intersection. His van impacted with a truck, which was traveling 55-65 miles per hour. Kline also entered Rodriguez’s hospital room while Rodriguez was asleep and detected the odor of alcohol coming from Rodriguez’s breath. Finally, Kline testified that Rodriguez, after being released from the hospital, acknowledged to him that he drank 5 beers and that he could not see the truck. During Kline’s testimony, the following exchange took place:

State: And, if you would, tell the jury exactly what the transaction was between the two of you; what did he say and what were your responses.
Kline: When I stopped at the red light, waiting to make the left turn, he looks over at me, and says, “Why am I being arrested?” And basically I told him the reason he was being arrested was because he was at-fault in a traffic crash, somebody had died as a result of it, and his blood alcohol level was over twice the legal limit. And with that he said he only had 5 beers. And I told him I don’t know how much he had, but his BAC, his blood alcohol level, was over twice the limit, the legal limit.

Rodriguez was charged, inter alia, with DUI manslaughter. He filed two pretrial motions to suppress any and all evidence seized during a search of his person or the van he was driving, including observations as to his appearance while in custody and any physical evidence such as blood samples. The first motion asserted that the “odor of alcohol,” by itself, was insufficient to establish probable cause for a blood .draw. The second motion asserted that Rodriguez, as a Mexican national, was not advised of his right to engage the assistance of consular officials nor was the Mexican Consulate notified at any point in time of his arrest and detention. This motion was based on the authority of Article 36, Vienna Convention on Consular Relations, April 24,1963, TIAS 6820, 21 U.S.T. 77. Rodriguez argued he was denied his rights under international law and deprived of the advice and assistance of officials of the Mexican Consulate.

The motions to suppress were denied, the case proceeded to jury trial, and Rodriguez was convicted of DUI manslaughter, 2 counts of DUI with injury, and one count of DUI with property damage. He raises three issues on appeal.

The first issue concerns the correctness of the pretrial denials of the suppression motions. This issue is without merit. Probable cause for a blood draw pursuant to section 316.1933, clearly was established by the information available to Trooper Gikas. His conclusion that Rodriguez’s normal faculties were impaired at the time of the accident was supported by much more than merely the odor of alcohol, e.g., the beer bottles, the redness of eyes, the incoherence of Rodriguez, and the nature of the accident itself. See State v. Brown, 725 So.2d 441 (Fla. 5th DCA 1999). As to the second motion to suppress, it is clear that treaties are between countries, and individual citizens have no standing to challenge violations of such treaties in the absence of the protest of the sovereign involved. See Maharaj v. State, 778 So.2d 944 (Fla.2000); see also MattaBallesteros v. Henman, 896 F.2d 255 (11th Cir.1990).

The second issue concerns the denial of two mistrial motions by the defense. The first was occasioned by the testimony of Trooper Kline that he had explained that the reason for the latter’s arrest was that his blood alcohol level was over twice the legal limit. This was not prejudicial because the fact of the blood alcohol level was later admitted into evidence at trial, and, indeed, it was more than twice the legal limit. The second mistrial motion dealt with the prosecutor’s comment in closing argument that the parents of Keith Sullivan, who was killed in the accident, were now without a son. Given that this fact was already known to the jury, the prosecutor’s reference to it could not have vitiated the fairness of the entire trial. See State v. Murray, 443 So.2d 955 (Fla.1984).

The third issue is Rodriguez’s claim that the trial court committed fundamental error by instructing the jury as to the statutory presumptions under section 316.1934(2), Florida Statutes. Rodriguez relies on State v. Miles, 775 So.2d 950 (Fla.2000), Bonine v. State, 811 So.2d 863 (Fla. 5th DCA 2002), and Servis v. State, 802 So.2d 359 (Fla. 5th DCA 2001).

The State succinctly and correctly responds that the trial court in this case did not read the statutory presumptions regarding impairment to the jury. Rather, the jury was told that a blood alcohol level of .08 or higher could be an element of the crime. As pointed out in Robertson v. State, 604 So.2d 783, 792 (Fla.1992), this instruction was derived from the statutory elements of DUI manslaughter, not from the statute creating an implied consent presumption of impairment.

Moreover, the cases relied upon by the appellant — Miles, Bonine and Servis— were not fundamental error cases, which also distinguishes them from the instant case. Even had the erroneous presumption instruction been given, there is case authority supporting the proposition that this would not constitute fundamental error. See, e.g., Leveritt v. State, 817 So.2d 891, 897 (Fla. 1st DCA 2002); Cardenas v. State, 816 So.2d 724, 726 (Fla. 1st DCA 2002).

AFFIRMED.

ROUSE, JR., R. K., Associate Judge, concurs.

SHARP, W., J., concurs in result.

      . Rodriguez’s vehicle, according to the Luff-mans, was traveling on U.S. 441 and, as it approached an intersection, turned abruptly into the median and proceeded to hit a truck in front of the Luffmans. Mr. Luffman reported the odor of alcohol coming from Rodriguez’s van and Rodriguez seemed incoherent as he slumped over the steering wheel.


author: SHARP, W., J.

text:
    Eddie L. JOHNSON, Appellant, v. James B. GIBSON and William Gambert, Appellee.
    No. 5D02-145.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.
    Rehearing Denied Feb. 18, 2003.

      Eddie L. Johnson, Raiford, pro se.
    Ronald K. Zimmet, Daytona Beach, for Appellee.
   SHARP, W., J.

Johnson appeals from the trial court’s order dismissing his complaint for alleged malpractice by the Public Defender and Assistant Public Defender in handling his criminal case in 1997. We affirm.

The trial court dismissed the complaint after determining that Johnson failed to comply with the notice requirements of section 768.28, and failed to make sufficient substantive allegations required by the statute. The order also stated that Johnson “has not alleged he was exonerated in regard to the criminal charges. Exoneration is a prerequisite to a claim of legal malpractice arising from criminal prosecution.” The court cited to Steele v. Kehoe, 747 So.2d 931 (Fla.1999).

In Steele v. Kehoe, 724 So.2d 1192 (Fla. 5th DCA 1998), approved, 747 So.2d 931 (Fla.1999), this court held that individuals bringing legal malpractice claims on the basis of a faulty defense in criminal actions are required to allege and prove exoneration of the criminal charge. In Schreiber v. Rowe, 814 So.2d 396 (Fla. 2002), the supreme court held that an element in a criminal legal malpractice case is proof of the plaintiffs innocence of the crime charged in the criminal proceeding. Here Johnson failed to allege either exoneration or his innocence of the underlying criminal charge.

Johnson’s primary claim is that his defense counsel failed to file a notice of appeal. The proper remedy in that situation is to petition for a belated direct appeal, pursuant to Florida Rule of Appellate Procedure 9.141, not file a malpractice suit. Indeed, it appears Johnson may have filed prior petitions for a writ of habeas corpus, seeking a belated appeal, which were denied. None of these documents is in this record.

Further, section 768.28 (the Florida Tort Claims Act) requires that if a person sues a state agency or an employee for a tort (malpractice in this case) that person must first provide notice of intent to file a claim. Here Johnson claims he served the notice on July 6, 2001, but his complaint was not filed until August 21, 2001. The state argues the notice was premature. In any event, the trial court was correct in dismissing the complaint because Johnson failed to allege that the public defenders acted “in bad faith or with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property,” as required by section 768.28(9)(a).

AFFIRMED.

COBB and PLEUS, JJ., concur.

      . The order allowed Johnson twenty days in which to file an amended complaint, but he failed to do so. Instead, Johnson requested issuance of a final order dismissing his complaint with prejudice. More than twenty days after the first order, the trial court dismissed his complaint with prejudice.

      . Presently, belated appeals must be filed under Rule 9.141(C); prior to January 1, 2000, it was rule 9.140(j)- The rule provides that ordinarily, a petition for a belated appeal shall not be filed more than two years after the expiration of time for filing the notice of appeal from a final order. Rule 9.141(c)(4)(A). In Lee v. State, 813 So.2d 275 (Fla. 5th DCA 2002), a belated direct appeal case, this court discussed the rule’s two year provision noting an exception where (1) the petitioner was unaware an appeal had not been timely filed, or was not advised of the right to appeal, and (2) he could not have ascertained such facts by the exercise of reasonable diligence. Although the petition in Lee exceeded the two year provision, it was held that he was entitled to a hearing to determine if his claim, that the trial court failed to advise him of his right to appeal, was valid. If so, a determination of whether the reasonable diligence component had been met was necessary. See also Coyle v. City of Ft. Lauderdale, 785 So.2d 1254, 1255 (Fla. 4th DCA 2001), rev. denied, 807 So.2d 653 (Fla.2002). This court appointed the trial judge as commissioner to make fact findings, and directed him to the factors discussed in the Coyle dissent, for guidance.


author: ROUSE, R.K., Jr., Associate Judge. COBB, J.,

text:
    ST. PAUL MERCURY INSURANCE COMPANY, Appellant/Cross-Appellee, v. Linda COUCHER, etc., Appellee/Cross-Appellant.
    No. 5D02-278.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.

      John W. Weihmuller, David B. Krouk and Anthony J. Russo of Butler, Burnette, Pappas, LLP, Tampa, for Appellant/Cross-Appellee.
    Lefferts L. Mabie, III, Tampa; Mark A. Avera, Gainesville, and Sharon H. Proctor, Avon Lake, Ohio, for Appellee/Cross-Ap-pellant.
   ROUSE, R.K., Jr., Associate Judge.

St. Paul Mercury Insurance Company (“St. Paul”) appeals an adverse $25,000 final judgment for uninsured motorist (UM) benefits entered after a jury trial. Linda Coucher, as Personal Representative of the Estate of Walter Luckner, cross appeals, complaining of the trial court’s rulings on evidentiary issues.

Coucher is the daughter of decedent Walter Luckner and the personal representative of his estate. After a car crash, which resulted in the death of both of her parents, she brought this action against the underinsured tortfeasor driver, Margaret Licht, for compensatory and punitive damages, and against St. Paul and other insurers alleged to provide UM coverage.

The pleadings included St. Paul’s admission that its policy provided UM benefits to decedents in the amount of $50,000 per incident. St. Paul’s pretrial compliance also specifically conceded that its UM policy afforded “coverage to Walter Luckner with policy limits of $25,000 per person.” The compliance further advised that Luck-ner’s estate would be entitled to those UM benefits, provided that the amount of loss “exceeds all other available liability insurance coverage.” (Emphasis supplied.) No other limitation with respect to St. Paul’s obligation to pay the UM benefits was stated.

A settlement was reached with the other defendant insurers, and the case proceeded to trial against St. Paul and Licht. Both St. Paul and Licht admitted that Licht caused the accident while intoxicated, and, two days before trial, Licht admitted that Coucher was entitled to recover punitive damages. Thus, the only remaining issues were the amount of compensatory damages and the amount of punitive damages.

Immediately before trial began, St. Paul renewed its pretrial motions for bifurcation, which had sought one trial on compensatory damages and a separate trial on all punitive damages issues. The trial court had denied those motions, but ordered that the case was to proceed to trial on the issues of compensatory damages and entitlement to punitive damages, followed by a separate consideration, by the same jury, to determine the amount of punitive damages. St. Paul contended that Licht’s admission of liability changed the posture of the case, and argued that the jury would be unfairly influenced to award excessive compensatory damages if it was provided any knowledge of the co-defendant tortfeasor’s intoxication. The trial judge denied the renewed motion to bifurcate, and permitted the intoxication issue to be discussed on voir dire and in opening statements.

Trial commenced, and the court read a statement of the case to the prospective jurors, which advised that St. Paul and Licht had admitted Licht’s liability, and that Licht was intoxicated at the time of the accident. Several prospective jurors responded negatively when questioned about their opinions of drunk driving, but none of them were empaneled.

Immediately after the first witness testified, Licht’s attorney announced outside the presence of the jury, that'the punitive damages claim had settled for $500. Contending that a new jury should be selected, St. Paul moved for mistrial, which was denied. Trial continued, and evidence was presented on the issue of compensatory damages. No evidence was admitted of any insurance other than that afforded by the St. Paul UM policy, and no mention was made of intoxication.

During closing arguments, Coucher’s trial counsel made one reference to the prior punitive damages aspect of the action, stating: “It ought not to be the prerogative of those that, coming from their own negligence, unexpectedly, needlessly, and senselessly steal the life of a loved one to set the price of this kind of horrible loss.” The court sustained St. Paul’s objection to this decidedly improper argument, but St. Paul did not move for mistrial or request a curative instruction. Following closing arguments and the court’s instructions, including a cautionary instruction advising that the punitive damage claim had been settled and should not be considered, the jury returned its verdict finding $775,000 in compensatory damages.

St. Paul’s timely motion for new trial was denied. St. Paul also filed a motion seeking a reduction of the verdict, raising for the first time the “other insurance” language of the policy. St. Paul argued that this “other insurance” provision would limit Coucher’s recovery to the $200,000 she had received in UM benefits from Luckner’s Allstate Insurance Company policy, and, therefore, no judgment should be entered against it. Coucher responded that St. Paul waived that argument, and, in addition, that St. Paul had failed to prove that the insured had rejected “stacked” UM coverage. The trial court announced that it was rejecting St. Paul’s arguments; however, St. Paul moved for reconsideration, attaching to its unsworn motion what appeared to be a UM selection/rejection form signed by Luckner. The trial court denied the motion for reconsideration, and entered judgment against St. Paul in the amount of its UM policy limits of $25,000.

St. Paul contends that the trial court erred in entering judgment against it, because the “other insurance” language in the policy should have been applied to preclude recovery of any UM benefits. We disagree, and hold that St. Paul waived any application of the “other insurance” clause by failing to timely raise the issue in the trial court.

Generally, a defense which is not pled in the answer or affirmative defenses is waived, and may not be raised for the first time in a post-trial motion. See Fla. R. Civ. P. 1.110 and 1.140(h); see also Republic Nat’l Bank v. Araujo, 697 So.2d 164, 166 (Fla. 3d DCA 1997) (holding argument based on economic loss rule waived when raised for first time in post-trial motions). An affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability. See Henry P. Trawick, Jr., Florida Practice & Procedure § 11-4, at 205 (2000 ed.)(citing Fla. E. Coast Ry. Co. v. Peters, 72 Fla. 311, 73 So. 151 (1916)). Ordinarily, an insurer’s defense based on an exclusion in the policy should be raised as an affirmative defense. See, e.g., Fla. Farm Bureau Gen. Ins. Co. v. Ins. Co. of N. Am., 763 So.2d 429, 432 (Fla. 5th DCA 2000) (“Policy exclusions are generally pled as affirmative defenses.”) (citing Peninsular Life Ins. Co. v. Hanratty, 281 So.2d 609 (Fla. 3d DCA 1973)).

The “other insurance” clause in this case is not a policy exclusion; its application does not result in a voiding or absence of coverage. Instead, when it applies, it reduces, limits or eliminates the recovery due with respect to a covered loss or occurrence. Although the “other insurance” language St. Paul seeks to have applied is not an exclusion, we conclude that the rationale which requires exclusions to be specifically raised in the pleadings also applies to such limiting language.

Pleadings frame the matters at issue. Parties are entitled to be fairly placed on notice of specific language which is sought to be applied by one party to a contract to avoid liability for payment, in whole or in part. This is especially true where, as here, an insurer has admitted coverage, and expressly stated that the claimant would be “entitled to [UM] benefits” where the loss exceeded available liability coverage. We further note that facts extrinsic to the insurance contract determine the application of the clause; it follows that the insurer should plead that which it bears the burden of proving. Requiring such defenses to be raised permits full discovery regarding the issues, reduces unfair surprise, and may result in earlier resolution of suits.

St. Paul relies on Reliance Mutual Life Insurance Company of Illinois v. Booher, 166 So.2d 222 (Fla. 2d DCA 1964) in support of its contention that its policy language should not be required to be pled as an affirmative defense. That case is distinguishable, however, because in Booher, the plaintiffs complaint for declaratory judgment affirmatively alleged all of the terms and conditions of the policy, and thus, the court held that the complaint brought into issue the time limitation provision upon which the insurer relied. Those facts are in marked contrast to the facts of this case, where all terms and conditions were not alleged by Coucher in her complaint, and the insurer specifically admitted coverage and Coucher’s entitlement to UM benefits, provided that the amount of loss exceeded available liability insurance, which it concededly did.

The Booher court specifically declined to determine whether the time limitation at issue in that case was an affirmative defense. We hold that the “other insurance” clause of the St. Paul policy is an affirmative defense, and the failure to plead it in this ease resulted in waiver. Although the trial court did not base its ruling on waiver, the ruling should be affirmed if it is correct on any basis. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999); Home Depot U.S.A. Co., Inc. v. Taylor, 676 So.2d 479 (Fla. 5th DCA 1996).

St. Paul next contends that the trial court erred in denying St. Paul’s request for bifurcation, mistrial, and new trial, arguing that the jury’s knowledge of Licht’s intoxication resulted in unfair prejudice to St. Paul. We hold that the trial court’s decision not to bifurcate and its denial of the motion for mistrial was not an abuse of discretion entitling St. Paul to a new trial.

Florida Rule of Civil Procedure 1.270(b) governs the bifurcation of trials, and provides: “The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim ... or of any separate issue or of any number of claims ... or issues.” Cases involving bifurcation uniformly provide that the trial court’s decision to bifurcate is subject to an abuse of discretion standard of review. See Microclimate Sales Co., Inc. v. Doherty, 731 So.2d 856, 858 (Fla. 5th DCA 1999); Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So .2d 1022, 1024 (Fla. 1st DCA 1998); Hardee Mfg. Co. v. Josey, 535 So.2d 655, 656 (Fla. 3d DCA 1988).

The trial court followed the bifurcation protocol established by the Florida Supreme Court in W.R. Grace & Co. v. Waters, 638 So.2d 502 (Fla.1994). In Grace, the supreme court held that when there is a claim for punitive damages in a negligence action, the jury should hear evidence on negligence, compensatory damages, and liability for punitive damages in phase one, and then the same jury should determine the amount of punitive damages in phase two. Bifurcating in this manner will always result in a jury being questioned about, and hearing evidence of, alleged willful and wanton conduct in the same phase of the trial in which the jury is required to assess compensatory damages.

We cannot conclude that a procedure prescribed by the supreme court results in excessive and unfair compensatory damages verdicts. If that procedure is deemed to be not unfairly prejudicial to defendants charged with bad conduct, we must presume that it is certainly not unfairly prejudicial to co-defendants who are not charged with any bad conduct. This presumption survives, even when there is a settlement of the punitive damages claim during trial. We find that the trial court did not abuse its discretion when it followed the procedure described in Grace, or when it denied the motion for mistrial upon the settlement of the punitive damages claim during trial.

We have carefully considered St. Paul’s two remaining issues on appeal and found them to also be without merit. Coucher’s cross-appeal is moot.

AFFIRMED.

SHARP, W., J., concurs.

COBB, J., dissents with opinion.

COBB, J.,

dissenting.

This wrongful death action for the death of Walter Luckner, who was killed in an automobile accident, was brought by his daughter, Linda Coucher, seeking compensatory damages against St. Paul, a secondary uninsured motorist carrier for Luckner with $25,000 coverage , and punitive damages against the underinsured tortfeasor, Margaret Licht, who was intoxicated at the time of the accident. Liability was admitted in regard to each claim. Since liability was not an issue, and because punitive damages were recoverable only from Licht and evidence of her intoxication admissible only against her, St. Paul filed a pretrial motion to bifurcate and in limine, seeking to sever the claim for damages against Licht from the claim for UM benefits against St. Paul and to exclude any evidence of drunk driving from the compensatory claim against St. Paul. The purpose of this motion was to prevent the jury in St. Paul’s case from hearing any prejudicial evidence of Licht’s intoxication, which had resulted in two deaths, and thereby be influenced and inflamed into awarding disproportionately high compensatory damages.

Although the trial court agreed with St. Paul’s argument that the evidence of Licht’s drunk driving was irrelevant and inadmissible in respect to the compensatory damage claim against St. Paul, the court refused to have two separate juries. Instead, the court provided for a two-phase trial with a single jury and prohibited evidence of Licht’s intoxication during the first (or compensatory) phase of the trial, but permitted consideration of drunk driving matters during voir dire and opening statements. This strikes me as an illogical non-solution to the problem. It would have been simple to have avoided the problem with the use of two juries. Cf. Neering v. Johnson, 390 So.2d 742 (Fla. 4th DCA 1980).

The apprehensions of the defense were soon to be realized. Two days before trial, Licht answered and admitted Coucher was entitled to punitive damages. St. Paul’s renewed motion to bifurcate was denied. Trial commenced and the court read a statement to the jury venire informing them that Licht was intoxicated at the time of the accident. During voir dire, reference was made to drunk driving. Immediately following the first witness’s testimony, Licht’s counsel announced to the court (outside the presence of the jury) that the punitive damage claim against Licht had been settled for $500. .Licht was dismissed from the case and her counsel left the courtroom, leaving a solvent St. Paul to confront a tainted jury. Only someone fresh from Sunnybrook Farm could have been surprised by this maneuver. Nevertheless, St. Paul’s immediate motion for mistrial was denied. Predictably, at closing argument, plaintiffs counsel attacked St. Paul with the following punitive damage argument:

It ought not to be the prerogative of those that, coming from their own negligence, unexpectedly, needlessly, and senselessly steal the life of a loved one to set the price of this kind of horrible loss.

Although objection to this argument was sustained, the skunk had already been thrown into the jury box. The fact of the matter, of course, was that St. Paul, the only remaining party defendant, was not alleged to have committed any actionable negligence and the culpable wrongdoer, Licht, was long gone from the case at this point. The only negligence committed by St. Paul was in overlooking its coverage defense until it was too late to assert it. The jury returned a verdict of $775,000, whereupon judgment was entered against St. Paul for $25,000. This appeal ensued.

At oral argument of the case it was indicated that the instant case is a prelude to a bad faith action by Coucher against St. Paul for an amount predicated upon the jury verdict below. Such an action was created by a 1992 statute (section 627.727(10)), which greatly expanded the damages recoverable against an uninsured motorist carrier in a bad faith action. Now, the UM claimant may seek to recover any amount in excess of the policy limits awarded by a jury in the underlying claim. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 56 (Fla.1995).

I believe the trial court erred in denying separate trials with separate juries for the claims against Licht and St. Paul and again in denying a mistrial after Licht was dismissed from the case. The appellee’s reliance on W.R. Grace & Co. v. Waters, 638 So.2d 502, 506 (Fla.1994) is misplaced. Grace is not applicable to the instant case because it dealt with bifurcation of the determination of punitive damages from the remaining issues at trial where only the defendant wrongdoer was sued. The purpose was to insulate the jury during the liability phase of the trial from evidence relevant only to the issue of the amount of punitive damages; that issue would become moot in the event the defendant prevailed in the first phase on that issue. In the instant case, we are dealing with multiple defendants, one of which, St. Paul, was not named in the count seeking punitive damages.

I would reverse and remand for a new trial wherein references to intoxication and punitive damages are excluded.

      . Other claims were settled in advance of trial, including Coucher’s UM claim against St. Paul because of the wrongful death of Coucher’s mother, which was settled for St. Paul’s per person policy limits of $25,000.

      . The trial court instructed the jury as follows:
      The Court has determined and now instructs you as a matter of law that the intoxication and criminal conviction of Defendant Margaret Licht is not relevant and should not be considered to determine the amount of damages necessary to compensate the Plaintiff for the loss of her father.
      The claim for punitive damages against Margaret Licht has been settled. Punitive damages should not be considered in determining the amount of compensatory damages necessary to compensate Linda Couch-er for the loss of her father.

      . OTHER INSURANCE
      If there is other applicable similar insurance under this policy or any other policy: 1. Any recovery for damages sustained by you or any “family member”:
      b. While occupying a vehicle not owned by you or any "family member” may equal, but not exceed, the sum of:
      (1) The limit of liability for Uninsured Motorists Coverage applicable to the vehicle you or any "family member” were occupying at the time of the accident; or
      (2) The highest limit of liability for Uninsured Motorists Coverage applicable to any one vehicle under any one policy affording coverage to you or any "family member.”

      .We also observe that St. Paul did not at any stage of the proceedings properly establish the applicability of the "other insurance” clause to the facts of this case. For example, there was no proof of compliance with section 627.727(9), Florida Statutes (1996), and no showing that the Allstate policy’s UM coverage was "other similar insurance.” See Nationwide Gen. Ins. Co. v. United Services Auto. Ass’n, 715 So.2d 1119 (Fla. 1st DCA 1998).

      . This coverage resulted from a waiver by St. Paul of an exclusion in its policy based upon the existence of other applicable UM coverage owned by Luckner in the amount of $200,000 and an anti-stacking provision. Unfortunately for St. Paul, it failed to detect this exclusion until after the trial, and it had already admitted coverage in the pretrial proceedings.

      . Coucher's mother was also killed in the accident. That claim had been settled prior to trial of the instant case.

      . See Superior Indus. Int'l, Inc. v. Faulk, 695 So.2d 376, 379 (Fla. 5th DCA 1997).

      . See Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289 (Fla.1991).


author: PER CURIAM.

text:
    Carlos L. JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1634.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2003.
    Rehearing and Certification Denied Feb. 14, 2003.
    Carlos L. Jackson, in proper person.
    Richard E. Doran, Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Carlos L. Jackson appeals the denial of his petition for writ of mandamus in which he alleges that the sentencing document was defective. As the document’s defectiveness was an issue which should have been raised in any of Jackson’s multiple motions for post conviction relief filed after he received the document, Jackson has waived any defect. See Fla. R.Crim. P. 3.850(f).

Affirmed.


text:
    Michael BARYCHKO, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-562.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2003.
    Marisa Tinkler Mendez of Marisa Tink-ler Mendez, P.A., Coral Gables, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Michael Barychko appeals from an order summarily denying his motion for post-conviction relief. Fla. R.Crim. P. 3.850. We affirm in part, reverse in part, and remand for further proceedings.

Barychko was charged with second degree murder in the beating death of victim Luyen Nguyen in a racially motivated fight on August 15, 1992. He was tried along with a co-defendant, Derek Kozma. The jury found Barychko guilty of the lesser included offense of aggravated battery. He timely appealed to this court. We affirmed per curiam without prejudice to Barychko’s right to seek post-conviction relief. See Barychko v. State, 699 So.2d 765 (Fla. 4th DCA 1997).

Barychko promptly filed the instant rule 3.850 motion. He raised seven claims of ineffective assistance of counsel. The trial court denied all seven claims without a hearing. We have thoroughly reviewed the record to determine the legal sufficiency of each claim and write to address those claims we deem not to be clearly refuted by the record.

As a general proposition, “[A] defendant is entitled to an evidentiary hearing on a post-conviction relief motion unless (1) the motion, files, and records in the case conclusively show the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” Atwater v. State, 788 So.2d 223, 228 (Fla.2001). When the defendant makes such a motion, he bears the burden of establishing a valid claim. If the basis of the motion is ineffective assistance of counsel, a defendant must allege sufficient evidence to establish counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When no hearing is held on the motion, the reviewing court must accept the facts as alleged by the defendant unless refuted by the record. Atwater, 788 So.2d at 228.

We find Barychko’s second, third, and fourth claims to be worthy of an evidentia-ry hearing. Baryehko alleges he was prejudiced by counsel’s ineffectiveness when counsel improperly opened the door to the admissibility of an incriminating hearsay statement, allowed the incriminating statement to be utilized in closing argument without objection, and failed to properly and timely file a motion to suppress statements made by him during the taped interviews taken by the police.

While the record attachments do suggest that counsel may have delayed in moving to suppress until jeopardy attached for strategic purposes, “a trial court’s finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing.” Guisasola v. State, 667 So.2d 248, 249 (Fla. 1st DCA 1995). In any event, it seems very likely that employing such a trial strategy in this case may have constituted deficient performance. This is especially true, in light of the fact that the trial court emphasized over and over to counsel that it would hear a defense motion to suppress any time before trial, but that it would not hear one after jeopardy attached unless the motion raised matters that could not have been raised earlier.

We find that the record and attachments before us do not conclusively show that Baryehko is not entitled to relief on these claims. Furthermore, it cannot be determined from the facts and circumstances in the existing record whether counsel’s determinations are acceptable “tactical or strategic” decisions. Id.

Accordingly, we reverse the summary denial of the second, third, and fourth grounds of Barychko’s motion and remand either for the attachment of additional portions of the record or an evidentiary hearing. The order of summary denial is affirmed in all other respects.

Affirmed in part, reversed in part, and remanded.

STONE, FARMER and MAY, JJ., concur.


author: STRINGER, Judge.

text:
    David COOK and Mary Cook, Petitioners, v. CITY OF WINTER HAVEN POLICE DEPARTMENT, Respondent.
    No. 2D02-2081.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 2003.
    Rehearing Denied Feb. 17, 2003.

      Michael P. McDaniel of C. Ray McDaniel, P.A., Bartow, for Petitioners.
    Robert J. Antonello of Antonello & Feg-érs, Winter Haven; and Donald T. Ryce of Hogg, Ryce & Spencer, Bay Harbor Island, for Respondent.
   STRINGER, Judge.

David and Mary Cook (the Cooks) challenge an order dismissing their petition for writ of certiorari. Because the circuit court departed from the essential requirements of law by dismissing the petition, we quash the dismissal order and remand for further proceedings.

The Cooks were employed as law enforcement officers by the City of Winter Haven (the City). Based on events not relevant to this court’s review, both were charged by administrative complaint with, among other things, conduct not becoming an officer. The City terminated the Cooks’ employment following a full administrative review of the charges, and the Cooks filed a timely petition for writ of certiorari in the circuit court.

The Cooks’ petition alleged that the city manager erred in rejecting the administrative hearing officer’s findings and recommendation. The City moved to dismiss the petition alleging that it failed to state a preliminary basis for relief and was “fatally flawed” because it was not accompanied by an appendix containing a record of the administrative proceedings. The Cooks subsequently filed a transcript of the administrative hearing and a motion to amend their petition to include an appendix and references to the administrative record. Nevertheless, the circuit court dismissed the Cooks’ petition before ruling on their motion to amend. The order dismissing the petition was rendered more than a month after the Cooks had filed the administrative hearing transcript.

In reviewing the circuit court’s ruling on the Cooks’ petition, this court must determine whether the circuit court afforded them due process and applied the correct law, i.e., did not depart from the essential requirements of the law. Broward County v. G.B.V. Int'l, Ltd., 787 So.2d 838, 843 (Fla.2001); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995). Where, as here, a petitioner moves to amend a petition and ultimately files the administrative record before the court rules on a motion to dismiss, we conclude that it is an abuse of discretion to dismiss the petition without hearing argument and ruling on the petitioner’s motion to amend. The circuit court failed to afford the Cooks procedural due process by failing to allow them to amend their petition. See DSA Marine Sales & Serv., Inc. v. County of Manatee, 661 So.2d 907 (Fla. 2d DCA 1995) (granting petition for writ of certio-rari and finding that the circuit court violated petitioner’s due process rights by denying its petition and failing to rule on its motion to supplement the petition with documents from the proceedings below).

As a general policy, all parties should be given a full and fair opportunity to have their disputes settled on the merits. This policy is evident in our rules of appellate procedure with regard to supplementing the record and may reasonably and logically be extended to amending petitions to add or supplement appendices. See Fla. R.App. P. 9.200(f)(2) (“If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined, because of incomplete record, until an opportunity to supplement the record has been given.”) (Emphasis added). Furthermore, amendments to petitions for writ of certiorari are generally allowed to include additional substantive argument when the interests of justice require. Fla. R.App. P. 9.040(d) (“At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits.”); see also N. Beach Ass’n of St. Lucie County, Inc. v. St. Lucie County, 706 So.2d 62, 63 (Fla. 4th DCA 1998). If amendments which include substantive changes are permissible, certainly a party should be able to amend a petition to comply with procedural rules requiring an appendix and appropriate references thereto.

This is not a case where a petition has been properly dismissed based on a party’s complete failure to supply an appendix or failure to move to amend their petition. See, e.g., Dunn v. Sentry Ins., 434 So.2d 45 (Fla. 5th DCA 1983) (denying petition for writ of certiorari due to petitioner’s failure to supply an appendix); Aleshire v. Ackerman, 418 So.2d 307 (Fla. 5th DCA 1982) (same); see also City of Miami v. Powers, 313 So.2d 35 (Fla.1975) (dismissing petition based on petitioner’s persistent failure to comply with court orders setting due dates for filing an appendix). Errors and omissions in the record, or in this case an appendix, should not thwart review on the merits when, as here, the record demonstrates the parties’ earnest effort to amend their petition to in-elude an appendix. See DSA Marine, 661 So.2d at 909.

We therefore quash the dismissal order and remand the matter for further proceedings.

ALTENBERND and WHATLEY, JJ„ Concur.


author: KAHN, J.

text:
    Alfonso PENA, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2999.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2003.
    Rehearing Denied Feb. 20, 2003.
    Appellant Alfonso Pena, pro se.
    Robert A. Butterworth, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

We affirm the trial court’s denial of appellant Pena’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850 motion. Pena alleges in his motion that the trial court wrongly failed to advise him of the direct consequences of a plea and, in particular, that one who is not a United States citizen could be subject to deportation. We acknowledge that the circuit judge in the underlying •criminal case did in fact fail to comply with all the requirements of Florida Rule of Criminal Procedure 3.172(c)(8), in that the judge did not inform appellant at the time of the plea that “the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service....” One might speculate that the circuit -judge felt he had no need to comply with the rule. During the plea colloquy, the judge asked appellant whether he was a United States citizen. Appellant, presumably under oath, replied that he was a United States citizen. Appellant, nevertheless, now argues that the judge was not, by virtue of appellant’s falsehood, relieved of the duty to advise appellant that if he was not a United States citizen, he might be subjected to deportation.

Unfortunately for appellant, Exhibit A to his Rule 3.850 motion defeats the claim. This exhibit is the notification from the Immigration and Naturalization Service concerning appellant’s possible deportation. In addition to noting the present conviction, the notice also reminds appellant that several years earlier, he was convicted in the United States District Court for the offense of possession of cocaine with the intent to distribute, in violation of federal law. “[B]ecause the defendant’s deportation consequences may have resulted from his [earlier] felony conviction, he cannot demonstrate the prejudice required under Peart [v. State, 756 So.2d 42 (Fla.2000)].” Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002). Appellant’s motion is self-defeating in terms of the prejudice requirement, and the trial court did not err in summarily denying the motion.

AFFIRMED.

BARFIELD and PADOVANO, JJ., concur.


author: WOLF, J.

text:
    TOP RANK, INC., America Presents, Ltd., and Showtime Networks, Inc., Appellants, v. FLORIDA STATE BOXING COMMISSION, et al., Appellees.
    No. 1D01-4951.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2003.
    Rehearing Denied Feb. 20, 2003.

      Stephen H. Grimes and Susan L. Kelsey, Holland & Knight LLP, Tallahassee, for Appellants.
    Robert A. Butterworth, Attorney General; Eric J. Taylor, Assistant Attorney General, Tallahassee, for Appellees.
   WOLF, J.

Appellants, Top Rank, Inc. (Top Rank), America Presents, Ltd. (America Presents), and Showtime Networks, Inc. (Showtime), argue on appeal that the trial court erred in determining that section 548.06, Florida Statutes, which imposes a 5% tax on boxing promoters, did not violate the freedom of speech provisions of the First Amendment of the United States Constitution. Showtime additionally argues that the trial court erred in dismissing Showtime as a party plaintiff. We do not find error as to either of the trial court’s rulings at issue here.

Section 548.06, Florida Statutes (2000), provides in pertinent part as follows:

(1) A promoter holding a match shall, within 72 hours after the match, file with the commission a written report which includes the number of tickets sold, the amount of gross receipts, and any other facts the commission may require. For the purposes of this chapter, total gross receipts include:
(a) The gross price charged for the sale or lease of broadcasting, television, and motion picture rights without any deductions for commissions, brokerage fees, distribution fees, advertising, or other expenses or charges;
(b) The portion of the receipts from the sale of souvenirs, programs, and other concessions received by the promoter; and
(c) The face value of all tickets sold and complimentary tickets issued.
(2) The written report shall be accompanied by a tax payment in the amount of 5 percent of the total gross receipts exclusive of any federal taxes, except that the tax payment derived from the gross price charged for the sale or lease of broadcasting, television, and motion picture rights shall not exceed $40,000 for any single event.

A “promoter” is defined as “any person ... who produces, arranges, or stages any match involving a professional.” § 548.002(15), Fla. Stat. (2000).

Two of the appellants, Top Rank and America Presents, are licensed boxing promoters that arrange live professional boxing events. Many of these events are made available to consumers on a pay-per-view basis through distributers or broadcasters such as Showtime which distribute the programs through local cable TV operators who charge viewers a fee. Section 548.06, Florida Statutes, requires a promoter to pay a tax on these boxing events in the amount of 5% of the total gross receipts, as defined in the statute. The Florida Boxing Commission sent demand letters to Top Rank and America Presents, seeking the 5% gross receipts tax due pursuant to the statute. Top Rank has refused to pay the 5% tax since 1998 or to comply with associated regulations on the grounds that the tax and regulations are unconstitutional; America Presents likewise refused to pay the tax or comply with the requirements in connection with a boxing event that it promoted. Showtime claimed that it could be considered a promoter under Florida law and thus potentially liable for the tax; it joined Top Rank and America Presents in filing a complaint in which the three sought declaratory and injunctive relief based on allegations that the statute imposing the tax is unconstitutional under the First Amendment.

The trial court granted a motion to dismiss Showtime on the basis that Showtime lacked standing since it had not yet been assessed the boxing tax, and the court entered final summary judgment against Top Rank and America Presents, finding section 548.06, Florida Statutes, facially valid under the First Amendment. We determine that a boxing match does not constitute either pure or symbolic speech and • decline to extend First Amendment protection to the promoters of a boxing match. We, therefore, uphold the facial validity of the statute. We also determine that the statute on its face does not apply to the distributors of boxing matches to cable networks; thus, we find that the trial court did not err in dismissing Showtime’s facial challenge to the statute.

The United States Supreme Court has determined that cable TV is a member of the media for conveying speech which is protected by the First Amendment. Leathers v. Medlock, 499 U.S. 439, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991). Subsequently, in Turner Broadcasting System v. Federal Communications Commission, 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), the court recognized that the cable television industry, including “cable operators” and “cable programmers,” are entitled to First Amendment protections. Appellant relies on three cases where taxation of cable operators and cable programmers for broadcasting boxing matches has been found to violate the First Amendment: United States Satellite Broadcasting Co. v. Lynch, 41 F.Supp.2d 1113 (E.D.Cal.1999); Showtime Networks, Inc. v. Georgia State Boxing Commission, slip, op. (Ga. Superior Ct. Nov. 23, 1999) (Case No.1999CV04184); and TVKO v. Howland, 2001 WL 562822, (15 Or. Tax 335 May 17, 2001) (Case No. 4445). None of these cases, however, involve taxation of a boxing promoter.

In United States Satellite, the State of California imposed a five percent tax on the actual broadcast of a fight, which was assessed directly against the broadcaster or cable operator who directly transmitted the fight to the viewers. There, the court specifically noted that it was not dealing with a tax on the promoter of the fight, but a tax on the dissemination of entertainment. Id. at 1121. In Showtime Networks, Inc., the Georgia tax purportedly applied to boxing promoters, but the Georgia statute was so broad it encompassed distributors, broadcasters, and cable programmers, all of which were held to be protected by the First Amendment in Turner Broadcasting. In fact Showtime, which is a cable programmer, was determined to be a promoter under the broad language of the Georgia statute. In TVKO, the Oregon taxing statute specifically defined a promoter to include the person who has the distribution rights to a pay-per-view telecast. Id. at 338. Unlike the California, Georgia, or Oregon statutes at issue in United States Satellite, Showtime Networks, Inc., and TVKO, the Florida statute clearly does not apply to a cable operator, to a distributor, or to a cable programmer. See § 548.002, Fla. Stat. (2000). Section 548.06 specifically applies only to a promoter.

Appellants urge us to extend the First Amendment safeguard from taxation to transactions other than those relating directly to the right to broadcast or the right to distribute to the broadcaster, arguing (1) the result is mandated by the holding in Simon & Schuster, Inc. v. New York State Crime Victims Bd., 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991); (2) the act of promoting a boxing match and broadcasting the match is protected by the First Amendment and any burden placed solely on this activity would be a content related regulation which runs afoul of the First Amendment; and (3) the method of calculating the tax is a direct burden on the right to broadcast in violation of the First Amendment. For the reasons stated herein, we reject these arguments.

In Simon & Schuster, the supreme court struck down New York’s “Son of Sam” law, which required that an accused or convicted criminal’s income from works describing his crime be deposited in an escrow account and be made available to the victims of the crime. There, the court found that the statute impermissibly imposed a financial burden on the speakers because of the content of their speech. Id. at 508. In Simon & Schuster, the State Victims Crime Board argued that the burden of the tax fell on the promoter of the book and the criminal rather than the media which is directly involved in the distribution process. The Boxing Commission makes the same argument in this case. The supreme court rejected the state’s argument in Simon & Schuster:

Finally, the Board claims that even if the First Amendment prohibits content-based financial regulation specifically of the media the Son of Sam law is different, because it imposes a general burden on any “entity” contracting with a convicted person, to transmit that person’s speech.... This argument falters on both semantic and constitutional grounds. Any “entity” that enters into such a contract becomes by definition a medium of communication, if it was not one already. In any event, the characterization of any entity as a member of the “media” is irrelevant for these purposes. The government’s power to impose content-based financial disincentives on speech surely does not vary with the identity of the speaker.

Id. at 117, 112 S.Ct. 501 (citations omitted, emphasis in original). Thus, if we were dealing with either pure speech or symbolic speech, we would be required to reject the Boxing Commission’s argument that merely because a person or entity may be several steps removed from the actual dissemination of speech, they are not entitled to First Amendment protections.

Financial burdens placed on the cable television process, however, do not necessarily implicate the First Amendment. See Leathers v. Medlock, 499 U.S. at 445-446, 452, 111 S.Ct. 1438. Taxation will implicate the First Amendment if it discriminates against members of the media or if it discriminates based on the content of the speech. Id. at 446, 111 S.Ct. 1438. In the instant case we are not dealing with taxation of a member of the media. Furthermore, the act of boxing does not involve either pure or symbolic speech. See Murdock v. City of Jacksonville, 361 F.Supp. 1083 (M.D.Fla.1973).

The supreme court in Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), stated that “[i]n deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play,” a court has to ask whether “[a]n attempt to convey a particularized message was present, [and whether] the likelihood was great that the message would be understood by those who viewed it.” That inquiry is pertinent in the instant case in determining whether boxing possesses “sufficient communicative elements” to bring it under the protection of the First Amendment. The question here is whether boxing, an athletic event where the participants are attempting to win prize money, is a form of conduct which contains elements of communication or involves pure speech or symbolic speech protected by the First Amendment.

In Justice v. National Collegiate Athletic Association, 577 F.Supp. 356 (D.Ariz.1983), the court ruled that playing football was not pure speech but rather a physical activity:

In its most basic form, athletic competition does not constitute pure speech; rather, participation in athletic competition constitutes physical activity or conduct.

Id. at 374. In Justice, the court found that there was no First Amendment interest at stake relative to the National InterCollegiate Athletic Association’s imposition of sanctions on the university which rendered the football team ineligible for postseason play or television appearances. The court found that those sanctions did not constitute a prior restraint upon the players’ First Amendment freedom of expression. Id. at 375. The Justice case, citing to the United States Supreme Court’s analysis in Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), points out that the issue in determining the applicability of the First Amendment to conduct is whether the conduct is sufficiently communicative. There the court found that a conduct-oriented activity like sports is not entitled to the same First Amendment protection which other more “communicative” forms of entertainment have been afforded, such as jazz concerts and nude dancing. Id. at 374, citing Fact Concerts, Inc. v. City of Newport, 626 F.2d 1060 (1st Cir.1980) (jazz concerts); Venuti v. Riordan, 521 F.Supp. 1027 (D.Mass.1981) (nude dancing). In Sunset Amusement Co. v. Board of Police Commissioners of the City of Los Angeles, 7 Cal.3d 64, 74, 496 P.2d 840, 845-846, 101 Cal.Rptr. 768, 774 (1972), the court, in ruling that roller skating is not a constitutionally protected activity, stated that “no case has ever held or suggested that simple physical activity falls within the ambit of the First Amendment, at least in the absence of some element of communicating or advancing ideas or beliefs.” See also MacDonald v. Newsome, 437 F.Supp. 796, 798 (E.D.N.C.1977) (concluding that surfboarding is not an activity protected by the First Amendment).

In Murdock v. City of Jacksonville, 361 F.Supp. 1083 (M.D.Fla.1973), the plaintiff alleged that he had a substantial interest protected by the First and Fourteenth Amendments to the United States Constitution in promoting wrestling exhibitions. There, the court rejected that argument stating that wrestling is not pure speech, free speech, “akin to free speech,” or a symbolic act protected by the Constitution:

There can be no serious contention, and none has been advanced by plaintiff, that wrestling constitutes “pure speech” as that phrase is used by the Supreme Court. Neither does this Court believe that wrestling is an activity “akin to free speech” as that phrase was used in Tinker v. Des Moines Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In that case the Court held that the symbolic act of wearing politically significant armbands to protest the Vietnam war was “akin to free speech.”
The symbolic acts which were protected by the First and Fourteenth Amendments in [symbolic speech] cases have no constitutional resemblance to the promotion of a wrestling match for entertainment. The promotion of wrestling matches in this case is not a symbolic act, nor is the wrestling match itself a symbolic act, protected by the First Amendment. Wrestling is just not “free speech”, “akin to free speech”, nor a “symbolic act”.

Id. at 1095-1096 (footnote omitted).

In distinguishing a case relied upon by the plaintiff in Murdock, the court further stated,

This case does not involve a speech by a public figure or anything of that nature, but only concerns the right to promote wrestling, a purely entertainment pastime. There is no evidence which could conceivably support the idea that the promotion of professional wrestling involves speech or symbolic acts equivalent to [protected] speech ....

Id. at 1096.

A similar view was expressed in Post Newsweek Stations-Connecticut v. Travelers Insurance Co., 510 F.Supp. 81 (D.Conn.1981):

It is not disputed that entertainment is news, but the entertainment here is the exposition of an athletic exercise. As such, it is on the periphery of protected speech (for purposes of a balancing of conflicting interests), as opposed, for example, to political speech, which is at the core of [F]irst [A]mendment protection.

Id. at 86 (citation omitted).

We recognize that athletic events provide people with a great deal of entertainment. We, however, agree with the views expressed in the previously cited cases that most athletic events do not convey any message, symbolic or otherwise. Thus, the regulated activity in this case is clearly distinguishable from the pure speech which was regulated in Simon & Schuster.

Appellant argues that even if the boxing match itself does not constitute speech, that the interviews and commentary which are broadcast with the fight implicate the First Amendment. We reject this argument. The activity that is being taxed is the promotion of the boxing match and not the provisions of commentary and interviews.

The main argument of appellants is that the taxing statute at issue here violates the First Amendment as an illegal content-based regulation. In Leathers v. Medlock, the supreme court rejected the idea that intermedia and intramedia discrimination violates the First Amendment absent any evidence of intent to suppress speech or any effect on the expression of particular ideas. Id. at 447, 111 S.Ct. 1438. The court in Leathers v. Medlock examined the case of Regan v. Taxation with Representation of Wash., 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), and stated that it “stood for the proposition that a tax scheme that discriminates among speakers does not implicate the First Amendment unless it discriminates on the bases of ideas.” Id. at 450. The entire focus in reviewing content-based regulation is that government will not attempt to limit dissemination of a particular message or idea. As stated herein, boxing conveys no message or idea; therefore, it has no content which is protected by the First Amendment.

The final argument made by appellants is that because the amount of tax assessed is based on the direct receipts of the broadcast, it is an impermissible tax on the cable distributors. As we discussed earlier, however, the tax is assessed on the privilege of promoting a boxing match, which is not protected by the First Amendment. We, therefore, reject this contention.

We find no error in the trial court’s dismissing Showtime from this litigation. Showtime is a provider of cable programming. Appellee concedes in its brief that Showtime is not covered by the definition of promoter in the statute. There is no evidence that the Department of Revenue has ever attempted to apply the statute to Showtime. Showtime’s greatest concern seems to be with the rules adopted by the boxing commission rather than the statute itself. Under these circumstances, the trial court properly dismissed Showtime as a party.

ERVIN and BARFIELD, JJ., concur.

      . I am in fact an enthusiastic sports fan, but I do not believe we should dilute the signifi-canee of First Amendment protection by making it applicable to all athletic endeavors.


author: GREEN, J.

text:
    Paul B. STEINBERG, Appellant, v. Karl M. SACHS, Appellee.
    No. 3D01-2429.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Steinberg & Associates, P.A. and Anthony V. Falzon, Coral Gables, for appellant.

      Markus & Winter, P.A. and Stuart A. Markus, Miami, for appellee.
    Before SCHWARTZ, C.J., and LEVY and GREEN, JJ.
   GREEN, J.

Paul B. Steinberg, plaintiff below, appeals an adverse final summary judgment entered in his contract action against Karl M. Sachs. We reverse for the reasons which follow.

In 1984, Steinberg, Sachs, and a Martin Greenberg were among a group of investors which formed a company called Boca Aviation for the purpose of purchasing the operating license for the airport in Boca Raton. Steinberg purchased 25% of the initial shares in Boca Aviation while Sachs purchased 5% of the shares and Green-berg 40%. Subsequently these investors established another entity named South Hangars in order to construct additional hangar space on property leased by Boca Aviation. Each Boca Aviation shareholder received an interest in South Hangars proportionate to his/her shareholding in Boca Aviation. Sachs was given a 4.95% interest in South Hangars.

In 1991, Sachs was embroiled in divorce proceedings and in need of liquid capital. He offered to sell his 5% interest in Boca Aviation and his 4.95% interest in South Hangars to Steinberg. Steinberg agreed to purchase the same for $32,500. Stein-berg further agreed to grant Sachs the option of repurchasing the stock no later than twenty-four months from the date of the sale of the stock by Sachs to Steinberg. Sachs accepted this offer and the parties executed a bill of sale and assignment of stock interest on December 6, 1991. The assignment provided in relevant part that:

Further, pursuant to the agreement of the parties, [Sachs] is hereby granted the right to repurchase said shares in BOCA AIRPORT, INC. d/b/a BOCA AVIATION, INC. AND SOUTH HANGAR, LTD. upon the payment to [Stein-berg], the sum of Thirty-Two Thousand Five Hundred Dollars ($32,500), plus interest at the rate of fifteen percent (15%) per annum which option may be executed by [Sachs], between eighteen (18) months and two (2) years from the date of this Assignment.

On December 8, 1993, and more than two years later, Sachs attempted to exercise his option to repurchase the stock from Steinberg. Steinberg informed Sachs that the time to repurchase the stocks pursuant to the agreement had expired. Steinberg nevertheless agreed to sell the stocks to Sachs for a total purchase price of $42,429 plus interest upon the condition that Steinberg retained a right of first refusal to repurchase the stock should Sachs decide to resell it in the future. Specifically, the letter of agreement prepared by Steinberg provided:

However, I will reconvey the interest in the various entities to you on the following basis.... The first right of refusal to repurchase said stock and partnership interest should you desire to sell same in the future.

Sachs signed this letter of agreement, issued a check to Steinberg for $42,500 on December 31, 1993, and once again became a shareholder in Boca Aviation and South Hangars.

In February 1995, Steinberg learned that Sachs had sold his 5% interest in Boca Aviation and South Hangar to Greenberg in January 1995 as part of a larger transaction for $120,000 without notifying Stein-berg and giving Steinberg the opportunity to exercise his right of first refusal. Upon learning this, Steinberg attempted to exercise his right of first refusal under the December 15, 1993 agreement by sending Greenberg a check for $120,000. Green-berg refused to sell the shares to Stein-berg and returned the check. Steinberg then attempted to purchase the interests from Sachs directly but Sachs refused to allow him to exercise his contractual right of first refusal.

Steinberg filed suit against Sachs seeking damages for breach of the December 15, 1993 agreement between them containing the right of first refusal. Sachs moved for final summary judgment. This motion was granted on the grounds that the right of first refusal was void because it lacked enforceable terms, most notably the time period during which Steinberg could exercise the right of first refusal and the price at which he could exercise the right of first refusal. Further, the trial court concluded that the right of first refusal was invalid due to the lack of consideration on the part of Steinberg. Steinberg moved for rehearing on the motion, but the same was denied.

Steinberg took the instant appeal and asserts that the lower court erred in its determination that the right of first refusal contained in the December 15, 1993 agreement was void for lack of specificity and adequate consideration on his part. He argues that a right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as those contained in a good faith offer by a third party, if the owner of the property manifests a willingness to accept the third party’s offer. He further asserts that he provided adequate consideration for the right of refusal by permitting Sachs to repurchase Sachs’ 5% interest in Boca Aviation and South Hangars after the option to repurchase contained in the December 1991 agreement had expired. We agree and reverse the summary judgment under review.

Initially, we note that a right of first refusal is sometimes confused with an option. Although they are related, they are distinct legal concepts. As we have previously stated, “[a] right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as those continued in good faith offer by a third person if the owner manifests a willingness to accept the offer.” Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854, 857 (Fla. 3d DCA 1970). That right is clearly an executory right. Id. By its very nature then, a right of first refusal would never contain specific terms such as price because the terms are always dictated by the third party whose offer the holder of the right of first refusal is bound to match in all essential details.

An option contract on the other hand, is one in which a seller makes an irrevocable offer to sell on specified terms and which creates in a buyer a power of acceptance. See 1A Corbin on Contracts 261A (1963). It is therefore an executed contract. See Coastal Bay Golf Club, 231 So.2d at 857. “The option compels performance within the time limit specified, or if none is mentioned, then within a reasonable time, whereas the right of first refusal has no binding effect unless the offeror decides to sell.” Winberg v. Cimfel, 248 Neb. 71, 532 N.W.2d 35, 39 (1995). “A right of first refusal [thus]is not an option but ‘ripens into an option once an owner manifests a willingness to accept a good offer.’ ” Keys Lobster, Inc. v. Ocean Divers, Inc., 468 So.2d 360, 363 (Fla. 3d DCA 1985) quoting Coastal Bay Golf Club, 231 So.2d at 857.

At issue in this case is solely a right of first refusal and the trial court erred as a matter of law in its determination that it was voidable for lack of enforceable terms such as price -and the time period during which Steinberg could exercise his right of refusal. The price was necessarily supplied by the third party’s (Le.Greenberg’s) offer. Moreover, Stein-berg correctly asserts that the courts will impute that his right of first refusal be exercised within a reasonable time period. See De Cespedes v. Bolanos, 711 So.2d 216, 218 (Fla. 3d DCA 1998) (stating that “[t]he general Florida rule is that when a contract does not expressly fix the time for performance of its terms, the law will imply a reasonable time.”); Doolittle v. Fruehauf Corp., 332 So.2d 107, 109 (Fla. 1st DCA 1976) (same).

We further conclude that the trial court erred as a matter of law in its determination that the right of first refusal was not supported by valid consideration. When Steinberg permitted Sachs to repurchase the 5% shares in the December 15, 1993 letter agreement after the expiration of the first option, Steinberg was effectively granting Sachs a new option. This new option was the new consideration. Contrary to the trial court’s findings, the new consideration was the purchase price of $42,500 plus the right of first refusal granted by Sachs to Steinberg. See Brinson v. Herlong, 121 Fla. 505, 164 So. 137 (1935).

Thus, for the foregoing reasons, we reverse the final summary judgment and remand for further'proceedings.

Reversed.


author: PALMER, J.

text:
    Phillip COULOMBE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D02-1417.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2003.
    Rehearing Denied Feb. 13, 2003.
    Phillip Coulombe, Gainesville, pro se.
    Charlie Crist, Attorney General, Tallahassee, Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Respondent.
   PALMER, J.

Phillip Coulombe petitions this court for certiorari review of the trial court’s order dismissing his appeal of a county court conviction for a traffic infraction. Concluding that the trial court departed from the essential requirements of law in dismissing Coulombe’s appeal, we grant the petition.

Coulombe filed a timely notice of appeal in the trial court seeking review of his county court conviction for committing a traffic infraction. Coulombe also filed a motion for stay of the conviction and an affidavit of indigency. The trial court granted the stay, noting therein Cou-lombe’s indigency. However, the affidavit of indigency was apparently lost by the clerk and, accordingly, Coulombe filed a second affidavit of indigency at the same time he filed his initial brief. When Cou-lombe received a notice of the fee for preparing the index of the record on appeal, he submitted a proposed order of indigency and allegedly sent a letter to the trial court reminding the court of the pending indigency affidavit.

Nonetheless, the trial court entered a notice of intent to dismiss Coulombe’s appeal for failure to file a brief. When Cou-lombe notified the court that a brief had been filed, the court sent an amended notice to dismiss for lack of a record. Cou-lombe alleges that he called and wrote the court, again advising that his affidavit of indigency was still pending; however, the trial court dismissed his appeal based on his failure to file a record.

A petition for writ of certiorari can only be properly granted when the trial court’s ruling departed from the essential requirements of the law. See State v. Pettis, 520 So.2d 250 (Fla.1988). In this case, that standard was met.

In Willis v. State, 708 So.2d 939 (Fla.1998), our supreme court explained that a party who claims a right to seek review without payment of costs shall file a motion in the trial court with an affidavit showing inability either to.pay the fees and costs or to give security therefore. Here, Coulombe filed the necessary petition and the court (at least implicitly) granted it. Although the trial court did not specifically enter an order of indigency, it recognized Coulombe’s indigency in its order granting his motion for stay where it explicitly held that the stay was without the giving of security “due to indigency”. Having been found indigent, Coulombe was entitled to obtain a record without providing the requested fee and therefore the trial court erred in dismissing his petition. However, he is not entitled to receive a free transcript. See Fla. R. Traf. Ct. 6.460(b). Alexander v. Bamash, 814 So.2d 1211 (Fla. 4th DCA 2002).

Petition GRANTED, order QUASHED; and cause REMANDED.

SAWAYA and PLEUS, JJ., concur.


text:
    James Daniel SNODGRASS a/k/a James Daniel Cannon, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4889.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.

      Carey Haughwout, Public Defender, Jeffrey Anderson, Assistant Public Defender, and Samuel A. Walker, Assistant Public Defender, Certified to Practice as a Member of an Out-of-State Bar, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

After entering an open plea to the court on various violation of probation and substantive charges, appellant filed a pro se motion to withdraw his plea. He claimed that his trial counsel told him it was in his best interest to enter the pleas because his sentences would run concurrently and the sentence on the cocaine possession charge would be “around [a] Guideline Sentence of 18 months.” Appellant received a five-year sentence on the cocaine charge to be served consecutively to the sentence on the violations of probation.

The court denied the motion to withdraw plea without an evidentiary hearing.

Where a motion to withdraw a plea occurs after sentencing, the appellant has the burden of proving that “a manifest injustice has occurred.” LeDuc v. State, 415 So.2d 721, 722 (Fla.1982); State v. Wiita, 744 So.2d 1232, 1234 (Fla. 4th DCA 1999). This is a more stringent standard than a motion to withdraw a plea filed before sentencing; the burden falls on the defendant to prove that withdrawal is necessary to correct the manifest injustice. See Scott v. State, 629 So.2d 888, 890 (Fla. 4th DCA 1993).

The critical question here is whether the trial court erred in denying the motion to withdraw plea without a hearing. A defendant’s entry of a plea based upon his attorney’s mistaken advice about sentencing can be a basis for allowing a defendant to withdraw the plea. See State v. Leroux, 689 So.2d 235, 237 (Fla.1996); Simeton v. State, 734 So.2d 446, 447 (Fla. 4th DCA 1999). If the trial court decides not to hold an evidentiary hearing, “the allegations of a defendant’s motion for post-conviction relief must be accepted as true, except to the extent that they are conclusively rebutted by the record.” Simeton, 734 So.2d at 447 (quoting Montgomery v. State, 615 So.2d 226, 228 (Fla. 5th DCA 1993)).

“Although rule 3.170(£) [of the Florida Rules of Criminal Procedure] does not expressly require a trial court to hold an evidentiary hearing, ... due process requires a hearing unless the record conclusively shows the defendant is entitled to no relief.” Id.

This case is controlled by Simeton. There, the defendant moved to withdraw his plea after being sentenced to seventy-two months in prison, arguing that his trial counsel had assured him that he would not be sentenced to more than sixty months in prison. See id. Though the trial court denied appellant an evidentiary hearing, this court reversed and remanded for such a hearing:

In this case, nothing in the record refutes Simeton’s allegation that his no contest plea was involuntary because he entered the plea based on the advice of his counsel that he would serve a prison term of no more than 60 months.

Id.; see also Ventura v. State, 820 So.2d 1026 (Fla. 4th DCA 2002) (finding that appellant was entitled to an evidentiary hearing regarding his motion to withdraw plea based upon allegation that counsel had [incorrectly] informed the appellant prior to the plea hearing that his only alternative to accepting a plea was to face life in prison).

If the allegations in appellant’s motion are accepted as true, he entered his plea to the pending criminal charges based upon his attorney’s mistaken advice that appellant would face around eighteen months in prison for the cocaine possession offense.

The plea colloquy included a lengthy discussion with appellant regarding the violation of probation charges. However, the trial court did not explain to appellant the maximum potential sentence for the cocaine possession charge and that he had a right to a jury trial on that charge. It is true that appellant signed a written plea form containing the maximum penalty and describing the court’s discretion in sentencing. The existence of a signed plea form is evidence relevant to the motion to withdraw. Nonetheless, given the very limited coverage of the substantive cocaine charge in the plea colloquy, we cannot say that this record conclusively shows that appellant is entitled to no relief, sufficient to deny the motion without a hearing. See, e.g., Ventura, 820 So.2d at 1026 (Appellant affirmed at plea hearing that he personally understood the terms of his plea agreement and was informed of the consequences of his plea; the appellant was nonetheless entitled to a hearing on the merits of his motion to withdraw based on allegations of trial counsel misadvice and coercion.); Kemner v. State, 770 So.2d 276 (Fla. 4th DCA 2000) (Transcript of hearing did not conclusively rebut appellant’s allegation that his plea was induced by his counsel’s misadvice that he would receive a life sentence if he went to trial and was convicted.); Holmes v. State, 726 So.2d 1228 (Fla. 4th DCA 1999) (holding that appellant was entitled to evidentiary hearing based on allegation his trial counsel told him he would most likely face a life sentence if he went to trial, when the maximum sentence for the charge he plead guilty to was eleven years); Stott v. State, 701 So.2d 917 (Fla. 4th DCA 1997) (finding that nothing in plea colloquy conclusively rebuts appellant’s allegation that his attorney incorrectly told him that if he went to trial he would face a minimum sentence of at least fifteen years, when the maximum possible sentence was 107.6 months).

On the constitutional challenge, we affirm based on Sawyer v. Florida, 819 So.2d 966 (Fla. 4th DCA 2002).

Affirmed in part, reversed in part, and remanded for an evidentiary hearing on appellant’s motion to withdraw his plea.

POLEN, C.J., SHAHOOD and GROSS, JJ., concur.

      . Subsequently, after Simeton, this court de-dared that a motion to withdraw a plea within thirty days of sentencing, pursuant to rule 3.170(Z), is not “one seeking collateral or 'postconviction’ relief.” Padgett v. State, 743 So.2d 70, 72 (Fla. 4th DCA 1999).


author: COBB, W., Senior Judge.

text:
    PONDELLA HALL FOR HIRE, INC., etc., Appellants, v. CITY OF ST. CLOUD, et al., Appellees.
    No. 5D02-1728.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    Thomas F. Egan of Thomas F. Egan, P.A., Orlando, for Appellants.
    Thomas W. Poulton and Christopher J. Steinhaus of DeBevoise & Poulton, P.A., Winter Park, for Appellees.
   COBB, W., Senior Judge.

The issue raised by this appeal is whether Pondella Hall for Hire, Inc., can utilize a replevin action against the City of St. Cloud to recover bingo equipment seized from it by the Osceola County Investigative Bureau (OCIB), of which St. Cloud was a component, and damages for the wrongful seizure of the property. The seizure, which was pursuant to a court order and warrant, was part of a criminal investigation by OCIB and led to a forfeiture action by the State against Pondella, an action subsequently dismissed. A State criminal charge against Pondella resulted in an acquittal in 1999 and a RICO action filed by the Attorney General ultimately was invalidated by the Florida Supreme Court. See Department Of Legal Affairs v. Bradenton Group, Inc., 727 So.2d 199 (Fla.1998). Another criminal action filed by the statewide Prosecutor was nolle prossed after the 1999 acquittal.

In the replevin action against St. Cloud filed below Pondella alleged:

Presently, there are no pending criminal matters involving this property, for which the subject property may be evidence. Likewise, there are no pending forfeiture cases involving the property— the time for filing such an action has long since passed. Finally, there are no injunctions, orders, or judgments of forfeiture as to this property.

St. Cloud contended below, and now contends on appeal, that our recent opinion in Eight Hundred, Inc. et al. v. State of Florida, 781 So.2d 1187 (Fla. 5th DCA 2001) clearly precludes the exercise of jurisdiction in regard to the seized property by the replevin court in this case; rather, the trial court wherein the property was originally seized must decide any issues regarding return or disposition of that property. In that case we wrote:

A trial court that has jurisdiction over criminal charges brought against an individual is vested with inherent authority over property held in custodia legis. Property is held in custodia legis when it is obtained for use as evidence in the criminal proceedings. See e.g., Helmy v. Swigert, 662 So.2d 895 (Fla. 5th DCA 1995). This inherent authority extends to property seized from the accused as well as others and it vests in the trial court the inherent power to assist the true owner in the recovery of his property. See Oleandi v. State, 731 So.2d 4, 6 (Fla. 4th DCA 1999). (“Once a criminal prosecution is instituted, the court in which that prosecution is pending acquires jurisdiction over that property to hear and determine all questions concerning its ownership if the property seized has an evidentiary purpose.”); Kern[ v. State, 706 So.2d 1366 (Fla. 5th DCA 1988) ]; Brown v. State, 613 So.2d 569 (Fla. 2d DCA 1993). This inherent authority to direct return of seized property continues beyond the termination of the- criminal prosecution. See Oleandi; Kern (concluding that subsequent to defendant’s acquittal of the criminal charges, the trial court retained the authority to direct return of seized property); Helmy (holding that the trial court is obligated to exercise its authority to resolve the issue whether the defendant was entitled to return of seized property after the criminal charges were dismissed); Coon v. State, 585 So.2d 1079 (Fla. 1st DCA 1991).
The trial court that has jurisdiction over the criminal proceedings has priority jurisdiction over other courts to determine whether property seized for use in the criminal proceedings is to be retained or returned to the owner. See Sawyer v. Gable, 400 So.2d 992, 995 (Fla. 3d DCA 1981) (concluding that the criminal trial court’s priority jurisdiction “turns on the fact that the warrant and property, by virtue of the filing of criminal charges, have initially come within the jurisdiction of the respondent judge which jurisdiction is not to be intruded upon by any court, though of concurrent jurisdiction”).... Therefore, once a motion for return of property is filed, the trial court with jurisdiction over the criminal proceedings is laden with the responsibility to determine whether a proper basis exists to return the property to the owner. This determination requires notice to the owner of the property and a hearing where all interested parties are given an opportunity to present evidence and argument to the trial court. Oleandi; Kern; Brown; Helmy; Coon.

Eight Hundred, 781 So.2d at 1190-1191.

Based upon our opinion in Eight Hundred, it is clear that the trial judge in the instant case was correct in dismissing the replevin action. It had no jurisdiction to do otherwise. In respect to the claim for money damage, Pondella is confronted with the doctrine of sovereign immunity, which requires notice pursuant to section 768.28(6)(a), Florida Statutes. No such notice was given. See Kelley v. Jackson County Tax Collector, 745 So.2d 1040 (Fla. 1st DCA 1999), review denied, 763 So.2d 1043 (Fla.2000).

Since this matter was dismissed below for lack of jurisdiction, that dismissal should have been without prejudice so that any claims Pondella may have may be properly pursued in the appropriate circuit court in accordance with our opinion in Eight Hundred. Accordingly we reverse the trial court’s dismissal with prejudice, but affirm dismissal for the reasons set forth herein.

AFFIRMED IN PART, REVERSED IN PART.

PETERSON and PLEUS, JJ., concur.


author: COVINGTON, Judge.

text:
    Harold CROOMS and Maudie Lee Crooms, Appellants, v. Lucille CRAWFORD, as Trustee, of the Lucille Crawford Revocable Trust dated November 17, 2000, Appellee.
    No. 2D02-1060.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    Rehearing Denied Feb. 17, 2003.
    Sandra Sanders, Arcadia, for Appellants.
    Kathy B. Gregg, Wauchula, for Appel-lee.
   COVINGTON, Judge.

Harold and Maudie Crooms, plaintiffs below, challenge the trial court’s order granting Lucille Crawford’s motion for summary judgment. In its order, the trial court concluded that the easement for ingress and egress located on Mrs. Crawford’s property was extinguished by virtue of the Marketable Record Title Act (MRTA), Chapter 712, Florida Statutes (2001). On appeal, Mr. and Mrs. Crooms submit that it was error for the trial court to have applied MRTA. We agree. See Holland v. Hattaway, 438 So.2d 456, 468 (Fla. 5th DCA 1983). We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BLUE, C.J., and DAVIS, J., Concur.