text:
    Janet Marie YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2319.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.
    Janet Marie Young, Fort Lauderdale, pro se.
    No appearance required for appellee.
   PER CURIAM.

Janet Marie Young timely challenges the dismissal of her motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm without prejudice to her right to file a legally sufficient motion addressing her claim of entitlement to jail credit. See Trapkin v. State, 830 So.2d 172 (Fla. 4th DCA 2002); Toro v. State, 719 So.2d 947 (Fla. 4th DCA 1998); Gethers v. State, 798 So.2d 829 (Fla. 4th DCA 2001), approved, 838 So.2d 504 (Fla.2003).

WARNER, POLEN and KLEIN, JJ., concur.


source: Caselaw Access Project

author: COPE, J.

license: Public Domain

text:
    Fernando VEGA, Appellant, v. Sharon VEGA, Appellee.
    No. 3D02-1087.
    District Court of Appeal of Florida, Third District.
    July 14, 2004.
    David S. Rosenthal, Miami, for appellant.
    Peter M. Hodkin, for appellee.
    Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
   COPE, J.

Fernando Vega appeals a final judgment of dissolution of marriage, contending that the amount of alimony he has been ordered to pay is excessive. We agree and reverse for a new hearing.

According to the amended final judgment, the husband’s net income is $6,281 per month. The court awarded the wife $4,000 per month in permanent periodic alimony. For a two-year period, the court awarded the wife an additional $1,000 per month in rehabilitative alimony. Thus, the award for the first two years is $5,000 per month in alimony out of the husband’s net income of $6,281. This is 80 percent of the husband’s net income. After the two years, the award is $4,000 per month out of the husband’s net income of $6,281, which is 64 percent of the husband’s net income.

We reverse the awards as excessive. See Gandul v. Gandul, 696 So.2d 466, 468 (Fla. 3d DCA 1997) (70 percent of net income excessive); de Armas v. de Armas, 471 So.2d 185, 185-86 (Fla. 3d DCA 1985) (80 percent of net income excessive); Parham v. Parham, 385 So.2d 107, 108 (Fla. 3d DCA 1980) (60 percent of net income excessive), see also Lambertini v. Lambertini, 817 So.2d 942 (Fla. 3d DCA 2002); Gomez v. Gomez, 659 So.2d 705, 706 (Fla. 3d DCA 1995) (excessive imputation of income; award exceeds ability to pay); Schwartz v. Schwartz, 427 So.2d 232 (Fla. 3d DCA 1983) (reversing under Parham and Blum,); Scott v. Scott, 408 So.2d 1089, 1090 (Fla. 3d DCA 1982) (excessive awards); Blum v. Blum, 382 So.2d 52, 55 (Fla. 3d DCA 1980) (award left husband $50 per week).

It is axiomatic that the court must set an award which the payor has the ability to pay, and is as fair as possible to both parties.

“[A] trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be ‘shortchanged.’ ” Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980) (citation omitted); Gandul.

The wife argues that an alimony award should be based on gross income, not net income. She contends that when the alimony award is compared to the husband’s gross income, the award is reasonable. The wife is in error.

In reality, the case law states that net income is the relevant benchmark. Canakaris v. Canakaris, 382 So.2d at 1202 (Fla.1980); Lambertini v. Lambertini, 817 So.2d at 943; Gandul v. Gandul, 696 So.2d at 468; de Armas v. de Armas, 471 So.2d at 185; Parham v. Parham, 385 So.2d at 108; Blum v. Blum, 382 So.2d at 54.

It is our understanding that' the wife has now completed her course of studies in nursing, and has begun work. On remand, the wife’s income should be taken into account in establishing the level of permanent periodic alimony. The husband does not dispute the wife’s right'to permanent alimony, but argues, correctly, that the amount which has been set exceeds his ability to pay.

For the stated reasons, we reverse the permanent and rehabilitative alimony awards, contained in the amended final judgment, and remand for a hearing to set reasonable amounts which the husband can afford to pay.

Reversed and remanded.

       The Canakaris decision states that "[a] spouse’s ability to pay may be determined not only from net income, but also net worth, past earnings, and the value of the parties’ capital assets.” 382 So.2d at 1202 (citation omitted). In the present case, given the limited amount of the parties’ other assets, the husband's ability to pay depends on his net income.


author: PER CURIAM.

text:
    Paul CAVANAGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1582.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.
    Rehearing Denied Aug. 12, 2004.

      Paul Cavanagh, Monticello, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Paul Cavanagh, appeals from an order summarily denying his motion for post-conviction relief. We reverse and remand for further review of Cavanagh’s Heggs based point. Heggs v. State, 759 So.2d 620 (Fla.2000).

Cavanagh pleaded guilty to four counts of aggravated assault. He was sentenced to community control followed by a probationary term. A subsequent violation led to revocation of Cavanagh’s probation. Cavanagh alleges that he pleaded to the violation, and was sentenced by the trial court to a bottom of the guidelines sentence, seventy three months.

Cavanagh’s claim is that the sentencing guidelines used by the trial judge have been declared unconstitutional. Heggs, 759 So.2d at 620, Trapp v. State, 760 So.2d 924 (Fla.2000); Latalian v. State, 786 So.2d 1242 (Fla. 4th DCA 2001).

Though not entitled to resentencing automatically, Cavanagh is entitled to further review of this claim. See Latalian, 786 So.2d at 1243. Accordingly, we reverse and remand for an evidentiary hearing or further attachments refuting the claim. If the trial court determines that Cavanagh is entitled to relief, the state will have the option of either agreeing to a new sentence or withdrawing from the plea agreement and proceeding to a violation of probation hearing.

FARMER, C.J., STONE and GROSS, JJ., concur.


text:
    Wayman E. DARDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1821.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.
    Wayman E. Darden, Sanderson, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Cala v. State, 854 So.2d 840 (Fla. 3d DCA 2003).

WARNER, GROSS and TAYLOR, JJ., concur.


author: KLEIN, J.

text:
    Willie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1840.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, and Cherish De La Cruz, Certified Legal Intern, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

We reverse appellant’s conviction of burglary and grand theft because the prosecutor improperly commented on his right to remain silent.

•Appellant was charged with breaking into a home and taking jewelry and other items. When he was apprehended with the property, he explained to the-officer that he had found it next to a cane field. This explanation was inconsistent with an earlier explanation in which appellant had stated that two men had given the stolen items to him. Referring to this in closing argument as an indication of guilt, the prosecutor stated:

Why else would Mr Williams give two different versions of how he obtained the property, unless he can’t get it together because he can’t really tell you the truth because he hasn’t got a complete story that — .

At this point, appellant interruptecl with an objection and moved for a mistrial on the ground that this was a comment on his right to remain silent. The trial court properly denied that motion; however, the prosecutor then "continued:

One thing I want to make perfectly clear, I refer .to the two inconsistent statements. I am referring to the two statements that Mr. Williams made at the day in question to Mr. Stein. Please, that’s what I am suggesting to you when I talk about statements. The defertdant has no obligation whatsoever to ever, in court, come in and testify or give us a statement and I can in no way ever suggest to you, you should negatively infer something from his incorporating or exercising his constitutional right to remain silent. I just want to make- that clear if you could segregate those — . [emphasis added.]

Appellant again objected and moved for a mistrial, but the court overruled the objection.

Although we recognize that the prosecutor may have been well intentioned, and only attempting to elaborate on his earlier comment about the inconsistent stories, we find that the statement is “fairly susceptible” of being perceived as a comment on defendant’s failure to testify, which is improper. State v. Kinchen, 490 So.2d 21, 22 (Fla.1985).

In Varona v. State, 674 So.2d 823, 824 (Fla. 4th DCA 1996), the prosecutor made the following statement during voir dire:

Now, you understand obviously that the defendant has a right to remain silent ... [I]f the defendant does decide to testify, and he doesn’t have to do anything. He could sit there and play crossword puzzles as long as he behaves himself. [I]f the defendant were to choose to testify, were to give a statement, would you look at his testimony as you would the testimony of any other witness or person? ...
And you understand he doesn’t have to do anything in a criminal case. He doesn’t have to even say one word and that’s his right, okay?... You understand I can’t comply [sic] the defendant to take the witness stand either. So I can’t call him as a witness for any reason ...

We concluded in Varona, citing a number of other cases involving similar comments, that this was an impermissible violation of the constitutional right to remain silent and reversed for a new trial. Because the comment in the present case is not substantially different from the comments we addressed in Varona, we conclude that this comment was harmful error. We find no error as to the second issue raised by appellant. Reversed.

WARNER and TAYLOR, JJ., concur.


author: ERVIN, J.

text:
    Patricia McGRAW, Appellant, v. R AND R INVESTMENTS, LTD., Appellee.
    No. 1D03-5032.
    District Court of Appeal of Florida, First District.
    July 20, 2004.

      W. Dexter Douglass and Thomas Crapps of Douglass Law Firm, P.A., Tallahassee, and Gillis E. Powell, Jr., of Powell, Powell & Powell, Crestview, for Appellant.
    Bobby L. Whitney, Jr., of Seymour & Whitney, Fort Walton Beach, for Appellee.
   ERVIN, J.

This is an appeal from a final summary-judgment finding appellee, R and R Investments, Ltd. (R & R), an equine activity sponsor, not liable for injuries suffered by appellant, Patricia McGraw, an equine trainer employed by R & R, after she was thrown by a horse which R & R owned, by reason of the immunity afforded to equine sponsors by section 773.02, Florida Statutes (2000). McGraw asserts that because R & R failed to comply with the notice provisions of section 773.04, Florida Statutes (2000), requiring all such sponsors to post warnings of their nonliability for injuries or death resulting from the inherent risks of equine activities, the trial court erred in holding that the immunity provided therein applied to bar the action. We agree, and reverse and remand with directions.

This is a case of first impression. In that this is an appeal from the entry of summary judgment which involves a pure question of law, our review standard is de novo. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001). In reaching its decision, the lower court concluded that no provision therein “conditions the protection of the statute upon compliance with section 773.04 [the posting requirements], and the fact that the defendant failed to comply with [it] is of no effect.” McGraw claims that if the trial court had correctly construed all pertinent provisions of chapter 773 in pañ materia, it should have been obvious that a reasonably prudent person would not have failed to post the notice demanded by section 773.04; therefore, the court erred in its construction, requiring reversal of the summary judgment. R & R responds, arguing that because the only exceptions to the broad grant of immunity given equine activity sponsors from liability for injuries suffered by participants while engaging in inherent risks of equine activities are found solely in section 773.03, Florida Statutes (2002), and, because the statutory duty to warn of the sponsor’s nonliability is otherwise provided in section 773.04, the breach of such duty, if it occurred, does not meet any of the narrow categories of exceptions set out under section 773.03.

A proper resolution of the issue requires a careful examination of sections 773.02, 773.03, and 773.04.

Section 773.02 provides:

General provisions. — Except as provided in s. 77S.0S, an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities and, except as provided in s. 773.03, no participant nor any participant’s representative shall have any claim against or recover from any equine activity sponsor, equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities.

(Emphasis added.) It is undisputed that R & R is an “equine activity sponsor” and McGraw a “participant” under the facts of this case. Moreover, there is no disagreement that McGraw’s injuries were the result of “an inherent risk of an equine activity,” defined in part in section 773.01(6), Florida States (2002), as “those dangers or conditions which are an integral part of equine activities.”

In that section 773.02 explicitly refers only to the limitations from liability as provided in section 773.03, we must carefully examine the exceptions expressed therein to determine whether they reasonably permit an in pari materia construction with provisions not included. Section 773.02(2) provides:

(2) Nothing in s. 773.02 shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person:
(a) Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and it was so faulty as to be totally or partially responsible for the injury;
(b) Provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, or to determine the ability of the participant to safely manage the particular equine based on the participant’s representation of his or her ability;
(c) Owns, leases, rents, has authorized use of, or is otherwise in lawful possession and control of the land or facilities upon which the participant was injured, and the injury was due totally or in part, to a dangerous latent condition which was known to the equine activity sponsor, equine professional, or person and failed to post warning signs;
(d) Commits an act or omission that a reasonably prudent person would not have done or omitted, under the same or similar circumstances or that constitutes willful or wanton disregard for the safety of the participant, which act or omission was a proximate cause of the injury; or
(e)Intentionally injures the participant.

(Emphasis added.)

Section 773.04 provides in full:
Posting and notification.—
(1) Every equine activity sponsor and equine professional shall:
(a) Post and maintain one or more signs which contain the warning notice specified in subsection (2). These signs shall be placed in a clearly visible location near to where the equine activity begins. The warning notice specified in subsection (2) shall appear on the sign in black letters, with each letter to be a minimum of 1 inch in height, with sufficient color contrast to be clearly distinguishable.
(b) Give the participant a written document which the participant shall sign with the warning notice specified in subsection (2) clearly printed on it. Said written document may be used in lieu of posting the warning on the site of the equine activity sponsor’s or equine professional’s facility, and shall be given to any participant in an equine event not on the location of the equine activity sponsor’s or equine professional’s facility-
(2) The signs and document described in subsection (1) shall contain the following warning notice:
WARNING
Under Florida law, an equine activity sponsor or equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.

Nothing in section 773.04, or elsewhere in chapter 773, expressly provides a consequence attending a sponsor’s neglect for not posting the warning there required. Thus, despite the mandatory language, “shall,” directing that signs be prominently displayed warning all persons of a sponsor’s nonliability for injuries resulting from the inherent risk of equine activities, the legislature failed to state what sanction should attach to such omission. Although it is a general rule that courts will not ordinarily imply exceptions to the provisions of a statute, such exceptions may be supplied where they are necessary to give effect to the legislative intent. See 73 Am.Jur.2d Statutes § 213 (2001). For example, in the interest of justice, proof of fraudulent concealment may constitute an implied exception to the statute of limitations, thereby tolling the running of the statute until discovery or reasonable opportunity of discovery of the concealment by the owner of the cause of action. See Nardone v. Reynolds, 333 So.2d 25, 39 (Fla.1976), modified on other grounds, Tanner v. Hartog, 618 So.2d 177 (Fla.1993); S.A.P. v. Dep’t of Health & Rehab. Servs, 704 So.2d 583, 585 (Fla. 1st DCA 1997).

In resolving the question of whether the legislature reasonably intended to exclude from the ambit of protection an equine owner that had not posted the required warning, it is necessary for us to consider certain pertinent maxims of statutory construction.

We note that before the enactment of chapter 773, effective May 5,1993, chapter 93-169, section 93, Laws of Florida, the common law permitted an injured equine rider to bring an action against an equine owner upon a showing that the horse had a propensity to do the act that caused the injury, and the owner knew of such propensity. See 4 Am.Jur.2d Animals § 115 (1995); Deese v. White Belt Dairy Farms, Inc., 160 So.2d 543 (Fla. 2d DCA 1964). The rule is well-established that statutes in derogation of common law, such as those provided in chapter 773, must be strictly construed, and if any doubt exists as to the legislature’s intent, the doubt should be interpreted in favor of the injured party. See State ex. rel. Grady v. Coleman, 133 Fla. 400,183 So. 25 (1938).

Another rule of statutory construction, particularly applicable to the case at bar, is that statutes relating to the same subject matter should be read in pari materia, and such rule is particularly applicable where such statutes are enacted as part of a single act. Major v. State, 180 So.2d 335 (Fla.1965). By reading all three statutes of chapter 773 in pari materia, we conclude that the consequence not stated by the legislature for the failure of an equine owner to comply with the posting requirements of section 773.04 is supplied •by conjoining the provisions therein with the exceptions enumerated in section 773.03. Thus, the omission of the equine sponsor in not posting the sign required in section 773.04 is one “that a reasonably prudent person would not have done or omitted under the same or similar circumstances.” § 773.03(2)(d), Fla. Stat (2002). In our judgment, such construction is consistent with the legislative intent, although not expressly stated, that the failure to post such warning disqualifies the sponsor from the protections afforded by section 773.02. Our conclusion in this regard is supported, we believe, by the legislative staff notes explaining the purposes leading to the enactment of chapter 773, which are, in pertinent part:

This amendment would create a complete bar to recovery for an equine activity participant except when law would expressly place specific responsibilities on an equine owner or sponsor. In effect, the provisions of the amendment would bring back the affirmative defense of assumption of risk for equine owners or sponsors unless a specified responsibility has been breached. When such responsibility is breached, the comparative negligence standard would apply. The owner or sponsor would be specifically responsible to: (1) provide functional tack; (2) make a reasonable effort to determine the ability of the participant to engage safely in the equine activity, such a determination could be based upon the participant’s representation of their ability; (3) post warning signs of all dangerous, latent conditions known to the equine owner or sponsor; (4) act as a reasonably prudent person would act under the circumstances; (5) disclose what a reasonable prudent person would disclose under the circumstances; and (6) refrain from intentionally injuring the participant.
The equine professional or sponsor would be required to post a sign warning participants of their limited liability, or to give participants a written document stating the warning. The warning language would be expressly provided by law.

Fla. S. Comm, on Agrie., CS/SB 1658 (1993) Staff Analysis 5-6 (Mar. 24, 1993) (Fla. State Archives, Dep’t of State) (emphasis added).

The staffs explanation that the effect of the statutory amendments was to restore the defense of assumption of risk unless a specific responsibility had been breached by equine owners or sponsors is particularly helpful regarding the extent of the immunity provided. We must presume that in making such comments, the legislature understood that only the affirmative defense of implied assumption of risk is now subsumed within the doctrine of comparative negligence. See Blackburn v. Dorta, 348 So.2d 287, 293 (Fla.1977). In contrast to implied assumption of risk, one who expressly assumes a risk may be completely barred from any right of recovery. The court in Dorta explains:

Included within the definition of express assumption of risk are express contracts not to sue for injury or loss which may thereafter be occasioned by the covenan-tee’s negligence as well as situations in which actual consent exists such as where one voluntarily participates in a contact sport.

Id. at 290. Actual consent requires actual knowledge of the risk assumed by the injured party. As pointed out in Van Tuyn v. Zurich American Insurance Co., 447 So.2d 318 (Fla. 4th DCA 1984):

Preliminary to any finding of express assumption of risk is a showing that the particular risk was known or should have been known and appreciated by the person injured.
For express assumption of risk to be valid, either by contract or by voluntary participation in an activity, it must be clear that the plaintiff understood that she was assuming the particular conduct by the defendants which caused her injury. No agreement to assume unknown risks shall be inferred.

Id. at 320-21 (emphasis added) (citations omitted).

It appears reasonably clear to us from our reading of the committee’s comments that the legislature’s restoration of the affirmative defense of assumption of risk for equine owners or sponsors referred only to express assumption of risk, meaning that unless the plaintiff actually knows or fully understands the nature of the risk, the risk assumed would be, as the current state of the law requires, only implied. In the absence of a participant’s full appreciation that he or she is undertaking the risk of the sponsor’s nonliability for any injuries, we can only conclude that the committee’s reference to “assumption of risk” as a bar to one’s recovery of damage pertained exclusively to express assumption of risks, and if the participant did not have actual knowledge of this risk, the legislature instead intended that the risk be implied, and, therefore, the statutory bar was inapplicable.

If such construction were not placed on the statute, the interpretation given by the trial court would effectively immunize owners or sponsors from any liability associated with the inherent risks of such activities without any effective enforcement of the legislative demand that they comply with their statutory duty to warn of their nonliability for any injuries ensuing from such activities. The rule is well-established that the courts will not ascribe to the legislature an intent to create an absurd or harsh consequence; therefore, an interpretation avoiding such consequence is always preferred. City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla.1950).

As stated, the legislature has used mandatory language directing sponsors to post notices to the public warning of their nonliability for such injuries. Clearly, a mandatory, not a directory, interpretation of the word “shall” is required. As was observed in Allied Fidelity Insurance Co. v. State, 415 So.2d 109 (Fla. 3d DCA 1982):

Whether “shall” is mandatory or discretionary will depend, then, upon the context in which it is used and the legislative intent expressed in the statute. Thus, for example, where “shall” refers to some required action preceding a possible deprivation of a substantive right, or the imposition of a legislatively-intended penalty, or action to be taken for the public benefit, it is held to be mandatory.

Because an equine participant’s common law right of action is affected by the enactment of chapter 773, we cannot believe that the legislature would cavalierly abrogate an injured person’s substantive right to seek redress in the courts without requiring as well an owner or sponsor in some meaningful way to comply with the posting provisions of section 773.04. In so concluding, we find the following comments by Professor Terence Centner particularly useful:

Another issue involves the consequences if an equine professional or activity sponsor fails to comply with the statutory notice provisions. Several statutes provide that failure to comply with the notice requirements disqualifies the professional or sponsor from invoking the immunity provided by the statute. Thus, it is clear that persons failing to meet this statutory requirement cannot seek solace in the statute’s benefits. Some statutes, however, fail to specify the consequences of not meeting this mandatory requirement. Possibly, the failure to meet the notice requirement also would disqualify persons from the immunity provided by these statutes.159
159 In the absence of language directly stating that failure to provide the required warning notice disqualifies a person from statutory immunity, several rules of statutory construction may assist in determining what happens to persons who do not meet the warning requirement. Perhaps the first issue is whether the statutory directives are directory or mandatory. Norman J. Singer, Statutes arid Statutory Construction § 57.10 (5th ed.1992). The statutes generally use the mandatory "shall” for prescribing the sign requirements.
Making the requirement of notice signs mandatory, however, would be counter to a mandatory grant of immunity. See supra notes 95-98 and accompanying text. Thus, these mandatory notice and immunity provisions are in opposition and may not offer much assistance in interpreting the meaning of the notice requirement. By declining to state the results of a failure to meet the statutory notice requirement, the legislative body may have intended a directory construction for the notice requirement. Singer, supra, § 57.03.
Another rule of statutory construction involves derogation of the common law, which may grant a plaintiff certain rights. Id. § 61.01. Since the equine liability statutes diminish common law causes of action, the violation of the notice requirement may be intended to be mandatory and disqualify persons from the statutory grant of immunity. Id. In opposition to this determination, however, is a rule of statutory construction that the provisions of remedial statutes should be construed as directory. Id. § 57.12.
Of course, the legislative intent is paramount. Id. § 57.02. Legislatures intended the equine liability statutes to narrow the liability of sponsors, professionals and others, yet the command of the statutes generally is couched as “limiting the civil liability of those involved in [equine] activities.” Tenn.Code Ann. § 44-20-101 (1993). If the statutes only limit civil liability, a mandatory interpretation of the notice requirement, whereby failure to provide the required warning notice disqualifies the defendant from statutory immunity, does not obstruct the enumerated statutory purpose. Singer, supra § 57.02. Moreover, if a defendant’s statutory immunity rights are premised on defendant’s compliance with the notice requirement, the defendant controls qualification for the statutory rights. This supports a mandatory construction of the notice requirement. Id. § 57.15.

Terence J. Centner, “The New Equine Liability Statutes,” 62 Tenn. L.Rev. 997, 1016-17 & n. 159 (1995) (emphasis added).

Section 773.02 is a statute only limiting an equine sponsor’s civil liability; therefore, the construction we have placed on the statute is, in our judgment, consistent with the legislative purpose to furnish immunity to a sponsor from liability for injuries resulting from inherent risks of equine activities in circumstances where a participant is fully aware of the sponsor’s nonlia-bility for any injury incurred by the participant in such activities. Because, for the reasons stated, the provisions of chapter 773 are inapplicable to McGraw’s common law action for damages, the final summary judgment is REVERSED and the case is REMANDED for further consistent proceedings.

ALLEN and HAWKES, JJ., concur.

      . Defined in part as one, whether or not operating for profit or nonprofit, "which sponsors, organizes, or provides the facilities for an equine activity.” § 773.01(4), Fla. Stat. (2002).

      . Defined in part as an amateur or a professional who engages in an equine activity. § 773.01(7), Fla. Stat. (2002).

      . Among other things, inherent risks of equine activities include the equine's propensity to behave in certain ways, or its unpredictability in reacting to particular conditions, thereby resulting in injuries to persons on or around them. § 773.01(6)(a), Fla. Stat. (2002).


author: BROWNING, J.

text:
    Aaron HOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3078.
    District Court of Appeal of Florida, First District.
    July 20, 2004.

      Nancy A. Daniels, Public Defender; and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General; and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Aaron Holley (Appellant) contends that the trial court erred in 1) denying motions for judgment of acquittal (JOA) on the charge of robbery with a deadly weapon because a box cutter/razor knife is not a “deadly weapon” or even a “weapon” as a matter of law, and no factual evidence was presented that he used, or threatened to use, a box cutter/razor knife as such; 2) permitting irrelevant testimony (over an objection) and allowing a lay witness to give expert testimony; 3) permitting, and participating in, the State’s frequent interruption of defense counsel during opening statement and closing argument, possibly suggesting to the jury that the court did not care for the defense’s argument; and 4) failing to conduct an adequate inquiry upon being informed that Appellant was generally dissatisfied with his court-appointed lawyer and had implied that he should represent himself. Concluding that the evidence is legally insufficient to support Appellant’s conviction for robbery with a “weapon,” we are constrained to reverse the judgment and sentence in Count One and remand with directions to the trial court to enter a judgment for unarmed robbery and to re-sentence Appellant on that count. We affirm the conviction and sentence in Count Two.

The State charged Appellant with robbery with a “deadly weapon,” contrary to section 812.13(2)(a), Florida Statutes (2001) (Count One); resisting an officer without violence, contrary to section 843.02, Florida Statutes (Count Two); and possession of a concealed weapon by a felon, contrary to section 790.23(1), Florida Statutes (Count Three). Count Three was severed and subsequently nolle prossed. The State filed notice of intent to seek enhanced penalties for Appellant as a prison releasee reoffender (PRR) and habitual felony offender or habitual violent felony offender. The jury found Appellant guilty of the lesser-included offense of robbery with a “weapon” in Count One and guilty as charged in Count Two. The court adjudicated Appellant guilty, classified him as a PRR, and sentenced him to concurrent terms of 30 years (Count One) and 60 days (Count Two).

The charges arose from a May 21, 2002, incident at the Food Lion grocery store in Starke. As the store manager, Mr. Tweedy, observed the interior of the store on a surveillance video located in his elevated office, Appellant removed two cartons of cigarettes, several packets of meat, and other items from the shelves and attempted to conceal them in his clothing. After contacting the police, the store manager stepped out of his office and conversed with Appellant in an effort to stall Appellant’s departure. Appellant’s eyes were bloodshot, his words were slurred, and he appeared to be “under the influence of something.” Noticing the meat products that protruded from Appellant’s pants and the cigarette cartons that bulged in his pockets as Appellant started to leave, the store manager asked whether he could have his “product” back. Appellant then placed his hand on his left rear pocket and said he had a gun, whereupon the store manager wished him “a good day” and tried to get him away from other customers and out of the store. The store manager testified he was scared and did not want to take any chances if Appellant was armed. As the store manager followed Appellant to the exit, Appellant told him to get away, or else Appellant would shoot him with his “nine.” Appellant left the store and rode his bicycle directly into a police car entering the parking lot. He ran off as the officers chased him (after. the store manager identified Appellant as the perpetrator). The police soon apprehended Appellant and brought him back to the Food Lion. A policeman showed the store manager certain items taken from Appellant during the search: cigarette cartons, packets of meat, candy bars, a flashlight, a pack of lighters, and a box cutter/razor knife. No gun was ever found on or around Appellant. Appellant never displayed, used, or threatened to use, the box cutter/razor knife during the incident.

I.

The theory of defense was that Appellant’s acts involved nothing more than shoplifting and, possibly, “resisting detainment.” He moved unsuccessfully for a JOA on the charge of robbery with a deadly weapon. The denial of a motion for JOA presents a legal -issue subject to de novo review. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (en banc). In moving for a motion for JOA, Appellant admitted every conclusion, favorable to the State, that the jury might fairly and reasonably infer from the evidence. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

We must determine whether the facts .adduced in the State’s case support the conviction for robbery with a “weapon.” Count One charged robbery with a deadly weapon. § 812.13(2)(a), Fla. Stat. (2001) (designating robbery as a first-degree felony, punishable by imprisonment for a term of years not exceeding life if, in the course of committing robbery, the defendant “carried a firearm or other deadly weapon”). “Deadly weapon” is not defined in the statutes. See Butler v. State, 602 So.2d 1303, 1304 n. * (Fla. 1st DCA 1992). Subsection (2)(b) of the robbery statute addresses offenders who, in the course of committing the robbery, carried a “weapon.” “Florida courts have generally utilized the statutory definition of ‘weapon’ provided in section 790.001(13) to determine whether a particular object constitutes a ‘weapon’ for purposes of section 812.13(2)(b).” Williams v. State, 651 So.2d 1242, 1242-43 (Fla. 2d DCA 1995); see also Stanley v. State, 757 So.2d 1275, 1276 (Fla. 4th DCA 2000). A box cutter/razor knife is not among the specifically enumerated items in section 790.001(13), Florida Statutes (2001), which defines “weapon” as “any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.” As used in this statute, “other deadly weapon” has been defined by the courts to mean either 1) an “instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction,” Robinson v. State, 547 So.2d 321, 323 (Fla. 5th DCA 1989), or 2) “an object which is used or threatened to be used during a crime in such a way that it would be likely to cause death or great bodily harm.” Butler, 602 So.2d at n.*. “An object can become a deadly weapon if its sole modern use is to cause great bodily harm.” Robinson, 547 So.2d at 323. A box cutter/razor knife is not a “deadly weapon” under that definition. See id. (“A razor blade was not designed or constructed with the purpose of causing death or great bodily harm and the ordinary contemplated social use is constructive.”). The other way an object can be construed as a “deadly weapon” is its particular use, or threatened use, during the crime. See Fletcher v. State, 472 So.2d 537 (Fla. 5th DCA 1985) (affirming conviction for attempted robbery with weapon, where defendant-placed cold, hard object against victim’s throat and said it was a razor blade). Appellant did not display, use, or threaten to use, the box cutter/razor knife during the robbery. Because the State presented no evidence that the object was used, or threatened to be used, as a weapon, the trial court reversibly erred in denying the motion for JO A insofar as it related to any offense greater than unarmed robbery. See Gaines v. State, 869 So.2d 603 (Fla. 1st DCA 2004) (reversing and remanding for entry of judgment of unarmed robbery and for re-sentencing, because evidence that defendant carried drill covered with bandana during robbery was insufficient to establish that defendant carried weapon in manner likely to cause death or great bodily harm during robbery, where defendant made no threatening motion with drill toward victims, never orally threatened to shoot or harm victims, and never threatened to use drill as bludgeon or other type of weapon); Blanco v. State, 679 So.2d 792 (Fla. 3d DCA 1996); Bates v. State, 561 So.2d 1341 (Fla. 2d DCA 1990) (reversing conviction for armed robbery with deadly weapon and remanding for entry of judgment of second-degree robbery and for re-sentencing, because nut driver held by defendant under a rag as he demanded money from store clerk was not “deadly weapon” under circumstances where defendant neither used, nor threatened to use, nut driver in violent way but merely stated that he was holding a gun).

II.

In his next issue, Appellant argues that the trial court abused its discretion, first, in permitting the store manager’s irrelevant testimony (over relevance objections) and, second, in allowing the store manager to give expert testimony. The court allowed the store manager to testify from personal experience that he still would have been fearful had he known that the purported gun Appellant carried was actually a box cutter/razor knife. The store manager testified from personal experience that a razor knife can hurt someone, and he opined that “[a] razor knife can kill you just as fast as a gun or knife.” The jury already had heard that the store manager was placed in fear because of Appellant’s indication that he had a gun and would shoot him. Therefore, allowing the witness to give this cumulative testimony is nothing more than harmless error. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The specific argument that a lay witness was improperly allowed to give expert opinion testimony was not raised and preserved in the trial court. See § 924.051(1)(b), Fla. Stat. (2002); Tillman v. State, 471 So.2d 32, 35 (Fla.1985); State v. Cornuz, 816 So.2d 827 (Fla. 3d DCA 2002).

III.

Appellant asserts that the trial court erred in permitting and participating in the constant interruption of defense counsel during opening statement, and closing argument, possibly suggesting to the jury that the judge did not care for the defense’s arguments. Our review of the opening statement and closing argument reveals that the State’s objections were “invited” by defense counsel’s repeated failure to heed the trial court’s reasonable instructions to avoid digressions and simply set out what the evidence would show (or had shown). When the prosecutor repeatedly objected to defense counsel’s lengthy digressions, the trial court properly reminded counsel of its admonitions not to exceed the bounds of appropriate, relevant commentary. In fact, defense counsel’s repetitious remarks in opening statement prompted one juror spontaneously to comment aloud (and inappropriately) that the same point had been made three times. Appellant has not shown an abuse of discretion in the court’s rulings.

IV.

Finally, Appellant argues the trial court failed to conduct an adequate inquiry upon receiving notice that Appellant was dissatisfied with his court-appointed attorney. We find no abuse of discretion in the court’s response. “[A]s a practical matter, the trial judge’s inquiry can only be as specific as the defendant’s complaint.” Morrison v. State, 818 So.2d 432, 440 (Fla.2002). This issue was first raised after the guilty verdict and before sentencing in defense counsel’s written “Motion to Determine Defendant’s Ability to Self Represent.” The motion alleged generally 1) that Appellant “has consistently appeared to be dissatisfied with the efforts of [defense counsel]” and “appears more dissatisfied with [defense counsel] than ever,” and 2) that Appellant “implies that he should represent himself.”

The'first ground alleged in counsel’s motion is facially insufficient. See Cummings-El v. State, 863 So.2d 246, 255 (Fla.2003) (finding defendant’s “general allegations of dissatisfaction” with court-appointed counsel did not constitute express allegation of lawyer incompetence); Davis v. State, 703 So.2d 1055 (Fla.1997) (holding that defendant was not entitled to inquiry on whether to discharge court-appointed counsel, even though defendant expressed dissatisfaction with his lawyer before trial, where defendant did not make unequivocal request to discharge attorney and his “motion to discharge” was ambiguous, at best); Branch v. State, 685 So.2d 1250, 1252 (Fla.1996) (finding no need for further inquiry where defendant’s comments constituted “a general complaint, not a formal allegation of incompetence”); Comer v. State, 730 So.2d 769 (Fla. 1st DCA 1999). As to the second ground in the motion, the mere implication that a defendant should represent himself is facially insufficient. See Davis, 703 So.2d at 1059; Kearse v. State, 605 So.2d 534, 537 (Fla. 1st DCA 1992) (stating that a criminal .defendant’s request to proceed pro se must be “clear and unequivocal”). Thus, the allegations are insufficient to trigger the need for an inquiry under Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), and Hardwick v. State, 521 So.2d 1071 (Fla.1988), and their progeny on the issue of defense counsel’s competency, or to require further questioning under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), regarding whether Appellant wished to proceed pro se.

We AFFIRM the conviction and sentence for resisting an officer without violence, REVERSE the conviction and sentence for robbery with a weapon, and REMAND for the trial court to impose judgment and to re-sentence Appellant for unarmed robbery pursuant to section 812.13(2)(c), Florida Statutes (2001), in Count One.

KAHN and WEBSTER, JJ., concur.


text:
    Virginia J. SINK and Deborah A. Cross, Appellants, v. FLORIDA COMMUNITY SERVICE CORPORATION OF WALTON COUNTY, et al., Appellees.
    No. 1D03-1327.
    District Court of Appeal of Florida, First District.
    July 20, 2004.

      W. Dexter Douglass, Julius F. Parker, III, and Thomas P. Crapps of Douglass Law Firm, P.A., Tallahassee, for Appellants.
    Toni L. Craig of Craig Family Legal Services, Mary Esther, for Appellees.
   BROWNING, J.

This is an appeal from summary judgment for Appellee, F.P. Morgan (Morgan), entered against Appellants. Appellants claimed in the court below that Morgan failed to disclose a known defect in a condominium before its sale to Appellants. Finding a genuine dispute of material fact, we reverse.

In reviewing summary judgment, this Court reviews the facts in the record in the light most favorable to the party against whom summary judgment was entered. E.g., St Joe Corp. v. McIver, 875 So.2d 375, 377 (Fla.2004) (unreleased) (in reviewing summary judgment, the court “must examine the record in the light most favorable to ... the non-moving party”).

In 1995, Appellants’ ground-floor condominium was flooded with raw sewage due to a backup in the building’s sewage system. Appellants claim that the cause of the backup was a power failure that disabled the pumps that pull sewage up from holding tanks below sewer level to the level of the sewer lines. The viability of Appellants’ claim depends upon whether, at the time of sale, Morgan had knowledge of this defect in the plumbing system. If Morgan had such knowledge, and the defect materially affected the value of the property, Morgan had a duty to disclose it to Appellants. See Johnson v. Davis, 480 So.2d 625, 628 (Fla.1985).

Morgan testified that she had no knowledge of the plumbing defect and never heard or participated in any discussion concerning sewage backups. However, Appellants produced evidence that sewage flooded all the ground floor condominiums in 1986 and that all homeowners, including Morgan, were notified of the problem at that time; that Morgan attended a 1991 homeowners’ association meeting at which the flooding was discussed; and that efforts to remedy the problem had been unsuccessful. Because this evidence, viewed in the light most favorable to Appellants, demonstrates a genuine issue of material fact as to whether Morgan was aware of the defects at the time of her sale to Appellants, the trial court reversibly erred by entering summary judgment.

REVERSED and REMANDED.

KAHN and WEBSTER, JJ., concur.

       F.P. Morgan is now deceased, and her estate has been substituted as the proper party.


author: HAZOURI, J.

text:
    Cheryl McKENNA, Appellant, v. CAMINO REAL VILLAGE ASSOCIATION, INC., Appellee.
    No. 4D03-4786.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.
    Richard W. Glenn of Law Office of Richard W. Glenn, West Palm Beach, for appellant.
    David A. Core of St. John, Core & Lemme, P.A., West Palm Beach, for appellee.
   HAZOURI, J.

Camino Real Village Association, Inc. (the Association) filed a Complaint for Foreclosure, Damages, Pre-Judgment Interest, Costs, and Attorneys’ Fees against Cheryl McKenna. The suit is based on a Claim of Lien filed against McKenna’s condominium for unpaid assessments. McKenna denied owing the amounts alleged and asserted several affirmative defenses including the Association’s failure to comply with its regulations regarding notice of delinquency in payment of assessments and acceleration of future assessments. The Association filed a Motion for Summary Judgment. The trial court granted the motion and entered a Summary Final Judgment of Foreclosure. We reverse.

The standard of review of the entry of summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party. See Bruckner v. City of Dania Beach, 823 So.2d 167, 170 (Fla. 4th DCA 2002). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it. Id.

All owners of condominiums in Camino Real Village are necessarily members of the Association. On August 29, 2002, the Association sent McKenna a letter stating that she owed money for past due assessments, interest, late fees, and attorneys’ fees and costs. The letter informed McKenna that the Association filed a Claim of Lien against her property and included a copy of the Claim of Lien for her review. The letter also stated that if the Association did not receive payment by October 1, 2002, the Association would bring legal action to foreclose the Lien and for a judgment against McKenna personally. The Claim of Lien, which was recorded on August 30, 2002, states that McKenna owes the Association the following assessments:

Due Amount
July 1, 2002 $ .78
August 1, 2002 $508.82
August 1, 2002 $229.89
September 1, 2002 $229.89 (accelerated assessment)
October 1, 2002 $229.89 (accelerated assessment)
November 1, 2002 $229.89 (accelerated assessment)
November 1,2002 $503.82 (accelerated assessment)
December 1, 2002 $229.89 (accelerated assessment)

The Declaration of Condominium and Bylaws allow the Association to accelerate assessments if a unit owner is in default in the payment of an assessment. The relevant provisions are as follows:

Paragraph 19.2 of the Declaration of Condominium:

Interest on Default. Assessments and installments thereon, not paid when due, shall bear interest from the date when due until paid at the highest rate allowed in Florida which is not then usurious. In the event any unit owner shall be more than thirty (30) days delinquent in the payment of any assessment, the Board of directors, at its discretion, may upon seven (7) days written notice to the unit owner, declare due and payable all assessments applicable to such unit for the fiscal year of the Association in which the delinquency occurs.

Article VII, Section 3 of the Bylaws:

Acceleration of Assessment Installments Upon Default. If a unit owner shall be in default in the payment of an installment upon any assessment, the Board of Directors may accelerate the remaining monthly installments for the fiscal year upon notice thereof to the unit owner and, thereupon, the unpaid balance of the assessment shall become due upon the date stated in the notice, but not less than fifteen (15) days after the delivery of or the mailing of such notice to the unit owner.

Both of these provisions require the Association to give the unit owner proper notice prior to any acceleration of assessments.

McKenna argues that she established a genuine issue of material fact when she filed the Affirmative Defenses alleging that: 1) she did not owe the amounts due under the Claim of Lien and 2) the Association had failed to comply with the procedural requirements set out in the Declaration and Bylaws, including providing prior notice of the acceleration to McKenna. When the Association filed its Motion for Summary Judgment, it addressed the issue of amount due by submitting an affidavit. However, the Association failed to address McKenna’s allegations that she did not receive proper notice of the acceleration and that the Association did not follow its outlined procedures regarding delinquency. Therefore, McKenna contends that the trial court should not have entered final summary judgment in favor of the Association. We agree.

In Berg v. Bridle Path Homeowners Association, 809 So.2d 32 (Fla. 4th DCA 2002), this court dealt with a similar situation and reversed the entry of final summary judgment. In Berg, the homeowners association filed suit against Berg seeking to foreclose assessment liens recorded against the property. Id. at 33. In her answer, Berg asserted that the ■liens were improper because the association had failed to comply with certain requirements in its own declarations and bylaws. The trial court ruled that Berg had failed to prove her “defenses” by the greater weight of the evidence and entered judgment in favor of the association. Id. at 34. However, on appeal this Court reversed. ’This Court held that the trial court erroneously shifted the burden of proof. Once a defendant makes a specific denial of a particular element of the claim, the plaintiff has the burden of proving its entitlement to judgment. Berg’s affirmative defenses placed the burden on the association to prove every material allegation of its complaint which is denied by the party defending against the ■ claim. This Court stated:

We hold that in order to prevail on a suit to foreclose an assessment lien; a homeowners association is obligated-' to show that it has properly levied the assessment in accordance with the community’s declaration of restrictive covenants and by-laws when the defendant challenges the lack of compliance “specifically and with particularity.”

. Id.

In the instant case, the Association argues that McKenna failed to create issues of fact because she did not file any memo-randa or affidavits in opposition to its Motion for Summary Judgment. However, applying the reasoning in Berg, once McKenna filed the Affirmative Defenses asserting the Association’s failure to comply with the requirements in the Declaration and Bylaws, the Association had the burden to prove .that it complied with the requirements in its Declaration and Bylaws.

When the Association issued the Claim of Lien on August 29; 2002, the Association listed both the July 1, 2002 assessment and the August 1, 2002 assessments as being delinquent. The Association used those delinquent payments as the basis for the acceleration of future assessments. However, when the Claim of Lien was filed, the only assessment that was more than thirty days delinquent was the $.78 that was due on July 1, 2002. The August assessments were not yet more than thirty days delinquent. Therefore, the only delinquent assessment that could form the basis for the acceleration of future payments was the $.78.. In addition, .the Association has not provided any evidence to establish that it gave McKenna the written notice required in the provisions prior to filing the Claim of Lien which accelerated the future payments.

McKenna concedes that she did not make the payments required in August; however, the Association’s Complaint sought damages not only for the August payment, but also based on accelerated futuré assessments through the end of the year. It appears from the record that there is at least a question of fact whether the Association complied with its provisions regarding acceleration of future assessments. We, therefore, reverse the entry of Final Summary Judgment and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

GUNTHER and STEVENSON, JJ., concur.


author: WARNER, J. MAY, J.,

text:
    CHRYSLER REALTY CORPORATION, a Delaware Corporation, and University Dodge, Inc., a Florida Corporation, Appellants, v. Michael K. DAVIS, as Trustee of the Irrevocable Raynold Saar Trust, General Electric Capital Corporation, a New York Corporation, Bank Atlantic, a Federal Savings Bank, Joseph P. Schumacker, Individually and as acting under the guise of Schumacker Holdings, LLC, a non-existent entity, William D. Seidle, Individually, Betty Seidle, his wife, Individually, Robert K. Seidle, Individually and Michael A. Seidle, Individually, Appellees.
    No. 4D02-3755.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.

      Philip M. Burlington of Philip M. Burlington, P.A., West Palm Beach, for appellants.
    Matthew Triggs, Joelle C. Sharman, and Mary F. April of Proskauer Rose LLP, Boca Raton, for appellee Schumacker.
    Linda A. Conahan and Ann M. Burke of Gunster, Yoakley & Stewart, P.A., Fort Lauderdale, for appellees William D. Sei-dle, Betty Seidle, Robert K. Seidle, and Michael A. Seidle.
    Mark H. Muller of Quarles & Brady LLP, Naples, for appellee General Electric Capital Corporation.
   ON MOTION FOR CLARIFICATION

WARNER, J.

We grant the motion for clarification to correct a name, withdraw the previous opinion, and substitute the following in its place.

Chrysler appeals a final summary judgment entered after a trial court determined that Chrysler’s right of first refusal and option to purchase, contained within a sublease of property, were no longer valid due to the termination of the prime lease. Because the prime landlord executed a non-disturbance agreement to protect all of Chrysler’s rights in the sublease even upon termination of the prime lease, we conclude that the court erred in entering summary judgment as to the right of first refusal. However, we conclude that the non-disturbance agreement bound only owners of the premises, and therefore the option to purchase that part of the prime lease property other than the premises was terminated. We therefore affirm in part and reverse in part.

The facts are somewhat lengthy and complicated, but not in dispute. In the late 1970’s or early 1980’s, Michael K. Davis (“Davis”) became the Trustee of “The Irrevocable Raynold Saar Trust” (“Trust”) which owned various parcels of real estate in Davie, Florida. On July 10, 1985, Davis entered into a Net Ground 99-year Lease Agreement (“Lease”) with Frontier Realty Services, Inc. (“Frontier”), with respect to 17.42 acres of Trust property. Frontier intended to either sublease or develop the property commercially, and any improvements were to be constructed at Frontier’s expense.

The Lease provided Frontier with an option to purchase at the end of the twenty-first year. The Lease specifically provided for the “Manner of Exercise of the Option to Purchase.” It also provided Frontier with an unrestricted right to assign its rights and interests under the Lease. On October 20, 1986, a Memorandum of Lease was recorded in the public records.

On February 16, 1987, Frontier entered into a Long Term Ground Sublease Agreement (“Sublease”) with Chrysler subletting six of the 17.42 acres. The Sublease provided for an initial term of twenty-five years with seven consecutive options to renew, each for a term of ten years. Chrysler constructed an automobile dealership on the property at its expense.

The Sublease included a provision giving Chrysler the option to purchase “under the same terms and conditions in the 21st year of the lease or at the time the Lessor [Frontier] has opportunity to exercise its option to purchase under its lease.” It also gave Chrysler a right of first refusal to purchase the premises. The Memorandum of Lease recorded at the time of the Sublease contained reference to the right of first refusal.

Davis signed the Sublease acknowledging that he received and' reviewed a copy of it. His signature appears right below the option to purchase. At the same time, he executed a Non-Disturbance Agreement (“NDA”) with Frontier and Chrysler. It provided:

If the Prime Lease shall terminate, the Sublease, if then in existence, shall continue with the same force .and effect as if the Landlord as Lessor and the Subtenant as Lessee had entered into a lease for a term equal to the then unexpired term of the Sublease, as of the termination of the Prime Lease, containing the same terms, covenants and conditions as those contained in the Sublease, including the rights of renewal therein and further, Landlord shall not, in the exercise of any of the rights arising or which may arise out of the Prime Lease or of any Instrument modifying or amending the same or entered into in substitution or replacement thereof, disturb or deprive Subtenant in, or of, its possession or its right to possession of the premises demised under the Sublease or of any right or privilege granted to or inuring to the benefit of Subtenant under the Sublease, provided the Sublease is then in full force and effect.

The NDA contained a specific attornment provision, which stated that if the Lease terminated, “[t]he Subtenant will attorn as Tenant to the Landlord, and the Landlord will accept such attornment.” A Memorandum of Sublease was recorded in the public records on February 16, 1987.

Frontier defaulted on the Lease in 1988. Chrysler filed suit against Frontier and Davis. Davis filed a cross-claim against Frontier for breach of the Lease. On September 11, 1989, the court entered an order on Davis’s Motion for Entry of Judgment After Default, which specifically determined that the Lease was terminated as a result of Frontier’s material breach of its terms and conditions, and that Frontier no longer had any right, title or interest in the property by virtue of the Lease. With respect to Chrysler, the order provided:

Nothing in the relief hereinbefore granted to the Crossclaimant, MICHAEL K. DAVIS, Trustee, against the Crossde-fendant, FRONTIER REALTY SERVICES, INC., shall invalidate or amend the lease-hold rights of Plaintiff in Inter-pleader, CHRYSLER REALTY CORPORATION, by virtue of that certain Sublease dated February 16, 1987, the rights whereof the Defendant, 'MICHAEL K. DAVIS, Trustee, has agreed to recognize upon the performance of obligations thereof pursuant to Non-Disturbance Agreement also dated the 16th of February, 1987, which the said MICHAEL K. DAVIS, Trustee, acknowledges to be in full force and effect at the time of these proceedings.

On April 26, 1990, Davis and Chrysler executed a document entitled “First Amendment to Long Term Ground Sublease Agreement.” It stated, “[p]ursuant to the Order [of September 11, 1989], Landlord agreed to recognize the rights of Tenant under the Sublease.It further provided, “4. Landlord ratifies that he is the Landlord under the Sublease, bound by all of its terms and conditions.... 6. Except as amended herein, all terms and conditions of the [Long Term] Sublease are and shall remain in full force and effect.”

On December 25,1995, Davis, individually and as Trustee, executed a warranty deed in favor of defendants, William D. Seidle, Betty Seidle, Robert K. Seidle, and Michael A. Seidle, for approximately 11.42 acres of Trust property that had previously been leased to Frontier, but not the six acres sublet to Chrysler. Davis executed the deed without notifying Chrysler. That warranty deed was subject to restrictions of record.

On April 14, 1999, Davis executed a Quit Claim Deed in Lieu of Foreclosure for a forty-acre parcel of Trust property, which included the six acres sublet to Chrysler. The deed stated that Schumacker Holdings, L.L.C., took title subject to “[r]estrie-tions and easements of record.” The quit claim deed was executed without notice to Chrysler. Approximately two years later, Davis executed a corrected quit claim deed identifying J.P. Schumacker Holdings of Florida, L.L.C. as grantee even though the Trust was no longer in existence.

Chrysler filed the current complaint against Davis, the Seidles, and Joseph P. Schumacker, individually and as Schu-maeker Holdings, L.L.C., alleging four counts for declaratory relief, specific performance of the right of first refusal, breach of contract, and to quiet title. The defendants filed motions for summary judgment contending that Chrysler’s option to purchase and right of first refusal expired with the termination of Frontier’s Lease.

The Seidles and Schumacker argued, and the trial court concluded, that Chrysler had no valid right of first refusal and no property interest other than its leasehold interest in the six-acre parcel. The court found “the best rights that Chrysler ever obtained was [sic] the rights that — that Frontier had and Frontier’s rights were extinguished” when Frontier defaulted. We disagree.

The parties are bound by the unambiguous terms of their contract. See Allied Van Lines, Inc. v. Bratton, 351 So.2d 344, 347-48 (Fla.1977). One of the precatory clauses to the NDA provides, “WHEREAS the parties hereto desire to assure the Subtenant’s possession of its part of said lands upon the terms and conditions prescribed in the Sublease for the full balance of the term therein mentioned irrespective of a termination of the Prime Lease.... ” (Emphasis added). The plain language of the NDA demonstrates the intent to guarantee to the subtenant all rights it held under its lease, even if the Prime Lease terminated. One of the terms in the Sublease was the subtenant’s option to purchase, “under the same terms and conditions, in the 21st year or at the time the Lessor has opportunity to exercise its option to purchase under its lease.” Moreover, the Landlord also granted “to tenant during the initial term or any extension or renewal of this lease the right of first refusal to purchase the premises.”

The NDA provided that if the Prime Lease terminated, then the Sublease would continue “with the same force and effect as if the Landlord as Lessor and the Subtenant as Lessee had entered into a lease ... containing the same terms, covenants, and conditions as those contained in the Sublease .... ” (Emphasis added). Moreover, contrary to Davis’s contention that it only prevented him from depriving Chrysler of possession of the premises, the agreement he signed also stated that “Landlord shall not ... disturb or deprive Subtenant in, or of ... any right or privilege granted to or inuring to the benefit of Subtenant under the Sublease.” The right of first refusal and option to purchase were rights and privileges under the Sublease.

Landlord Davis signed the Sublease, signed the NDA, and then signed the first amendment to the Lease, which stated that he agreed to recognize all of the rights of the Tenant under the Sublease and to be bound by all of its terms and conditions. If he had wanted to limit the terms for which he would be bound, he had ample opportunity to restrict Chrysler’s rights. He did nothing. The unambiguous terms of the contract, ratified several times by Davis, gave Chrysler a right of first refusal for the six acres and an option to purchase.

Through these agreements Davis obligated himself to fulfill the terms of the Sublease. See Cassidy v. Billy M. Corp., 365 So.2d 520, 524 (La.Ct.App.1978) (interpreting a non-disturbance agreement as establishing an “obligation of the owner to step into the shoes of the lessee, vis-a-vis the sublessee, in the event that the lease between the owner and the lessee falls” and stating, “[i]f and when this occurs, the conditions of the sublease then become binding upon the owner”). An analogous case is MTS Co. v. Taiga Corp., 365 N.W.2d 321 (Minn.Ct.App.1985). There, the prime landlord entered into a lease with the prime lessee. The lessee entered into a sublease with Taiga Corporation for the operation of a restaurant. The sublease specifically prohibited Taiga from selling alcohol. A restaurant lease was also executed between the lessee and Taiga which provided that the lessee would sell alcohol on the restaurant premises, as the lessee had a liquor license. MTS executed a non-disturbance agreement with Taiga, agreeing that in the event of the termination of the prime lease the subtenant’s rights and privileges under the sublease would not be disturbed or diminished. The lessee breached the prime lease, and the lease was terminated. Taiga then acquired the right to sell alcohol, and MTS sought to terminate the sublease because Taiga violated the prohibition against the sale of alcohol.

Finding that the lessee and sublessee had intended that the restaurant lease and the sublease be construed together as one indivisible' transaction, the court held that the non-disturbance agreement obligated MTS to perform the lessee’s obligations under both documents, including the sale of liquor. See 365 N.W.2d at 326. The court explained,

The source of MTS’s obligation to Taiga is the non-disturbance agreement; it is the only agreement directly between MTS and Taiga. The language in the non-disturbance agreement is quite clear: MTS agrees to step down to the sublessor’s position in the sublease upon Egbert Souse’s default, in effect transforming the sublease into a prime lease. Upon assuming Egbert Souse’s position as sublessor, the sublease defines the extent of MTS’s responsibility.

Id. at 325. Similarly, in this case the Landlord agreed to “step down into the shoes of the sublessor” and perform the duties and obligations required under the Lease. Therefore, Davis was obligated to fulfill the terms of the right of first refusal as well as the option to purchase.

As to the right of first refusal, the Sublease required the landlord to give Chrysler the right of first refusal as to any offer to purchase the premises, which was the six-acre parcel occupied by the automobile dealership. Therefore, the NDA, together with the First Amendment to - the ■ Lease, required Davis to honor this condition of the Lease and give Chrysler the ability to exercise this right. We think it was a normal business decision to provide a right of first refusal to protect Chrysler’s substantial interest in the parcel. If, and when, Davis received an offer to sell, Chrysler would have the right of first refusal to purchase the six acres.

The Sublease gives the tenant the option to purchase under the same terms and conditions in the twenty-first year of the lease or “at the time the lessor has opportunity to exercise its option to purchase under its lease.” While the NDA provided that the landlord was bound by the terms of the Sublease, “landlord” meant only the current owner, i.e., Davis. See NDA § 4. In the event of a sale of the “premises,” comprised of the six-acre parcel, the landlord would be relieved of responsibility, but the provisions of the Sublease would bind any subsequent owner of the “premises.”

As to the remaining 11.42 acres which were part of the Prime Lease, the NDA did not bind the Seidles as subsequent purchasers of that parcel because they were never owners of the “premises,” 1.e., the six-acre parcel. Therefore, they are not bound by the terms of the option to purchase contained in the Sublease.

Finally, we must determine whether an option to purchase the six acres continues under the Sublease. The Prime Lease conditioned Frontier’s option to purchase upon the following things being true in 2006, the end of the twenty-first year: (1) the Lease had not been terminated; (2) Frontier was not in default; and (3) Frontier had been and continued to pay rent on the 17.42 acre parcel. Because Frontier defaulted and the Lease terminated by virtue of the September 11, 1989 court order, none of those conditions were satisfied and Frontier’s option to purchase expired. As those conditions could not be satisfied, Davis argues that the option to purchase terminated with the default by Frontier.

But for the NDA, we would agree with Davis. However, that agreement was entered into specifically to assure Chrysler that its rights under the Sublease would be preserved “irrespective of the termination of the Prime Lease.” That being the case, he cannot now claim that Chrysler’s rights are invalid specifically because of the termination of the Prime Lease. Just as in MTS, the terms of the Sublease, not the Lease, define the extent of Davis’s responsibility, and the NDA also binds Schu-macker, as subsequent owner of the premises.

Davis argues that he. is deprived of the full benefit of the Prime Lease conditions on the exercise of the option to purchase, because the rental payments by Frontier were considered part of the purchase price. Davis loses nothing because he has received all of the rental payments from Chrysler for the six-acre premises which are subject to the option to purchase. By his own admission those payments constituted at least two-thirds of the rentals due under the Prime Lease. Thus, Davis has received the full rental on the six-acre parcel, and the monetary condition to exercise the option as to the premises has been met.

We therefore affirm the final judgment as to the declaration that the Seidles are not bound by an option to purchase their property. We reverse the final summary judgment in favor of appellees Davis and Schumacker. While we have concluded that the NDA entitles Chrysler to the rights under the option and right of first refusal as to the six-acre parcel, there remain many affirmative defenses raised which have not been adjudicated. Thus, we remand for further proceedings on all other issues. By our rulings determining Chrysler’s rights in the property, we also reverse the final judgment quieting title as to Schumacker.

GUNTHER, J., concurs.

MAY, J., dissents with opinion.

MAY, J.,

dissenting.

I respectfully dissent. The trial court found “the best rights that Chrysler ever obtained was the rights that — that Frontier had. And Frontier’s rights were extinguished” when Frontier defaulted. I would affirm this ruling.

“It is a well-settled principle of landlord-tenant law that a sublease rises and falls with the master lease, and that a sublessee can take no greater rights in demised property than its sublessor.” Thai v. S.G.D. Corp., 625 So.2d 852, 853 (Fla. 3d DCA 1993). Thus, Chrysler could not obtain any greater rights than Frontier had under the Lease.

The majority agrees that the Prime Lease conditioned Frontier’s option to purchase upon the following things being true in 2006, the end of the 21st year: (1) the Lease had not been terminated; (2) Frontier was not in default; and (3) Frontier had been and continued to pay rent on the 17.42 acre parcel. It also agrees that none of those conditions were satisfied when Frontier defaulted and the Lease terminated through the September 11, 1989 court order. However, it holds that the NDA superceded the fulfillment of those conditions precedent. I disagree.

. Chrysler’s option under the Sublease stated “[tjenant shall have the option to purchase, under the same terms and conditions', in the 21st year or at the time the Lessor has opportunity to exercise its option to purchase under its Lease.” (Emphasis added). In other words, Chrysler’s option was also conditioned upon the existence of the Lease in the 21st year, no default by Frontier, and full payment of monies due under the Lease. As these conditions wére not satisfied, Chrysler’s option to purcháse expired with that of Frontier’s.

Chrysler’s right of first refusal, which was not contained in Frontier’s Lease, gave it the ability to purchase the property from Frontier before anyone else. But because Frontier never owned the property, Chrysler was never in a position to exercise its right. The documents that Davis signed ' did not extend Chrysler rights greater, or impose fewer obligations, than Davis gave Frontier under the Lease. Rather, the NDA and First Amendment to the Sublease merely guaranteed the perpetuation of the Sublease in the event the Lease failed.

Nevertheless, Chrysler argues and the majority agrees that because Davis and Chrysler entered into the NDA, Davis is bound to honor Chrysler’s option to purchase and right of first refusal despite the failure of the conditions precedent. In essence, through the NDA Chrysler acquired Frontier’s benefits without responsibility for Frontier’s burdens. This position directly conflicts with the principle expressed in Thai.

I respectfully suggest that the majority has misinterpreted the meaning of the at-tornment provision in the NDA. An attornment is a continuation of an existing lease, simply putting another in the place of the landlord. 51 C.J.S. Landlord & Tenant § 22 (2002). It does not however, change the terms of the Sublease. It does not place Chrysler in a better position than it occupied had Frontier not defaulted on the Lease. After attornment, the tenant retains the same conditions as under the former landlord. Id. It does not create or initiate a new lease. Id. Therefore, while Chrysler became a tenant to Davis, it did not acquire new or additional rights when the attornment occurred.

In my view, when Frontier’s Lease terminated, Frontier’s option to purchase the property ended before it matured as did Chrysler’s. Because Frontier never actually owned the property, Chrysler was never in a position to exercise its right of first refusal. See Vandervalk v. Brewer, 436 So.2d 1083 (Fla. 3d DCA 1983). While Davis replaced Frontier as landlord, he did not breathe new life into expired rights. Had Davis intended to provide Chrysler with a new option to purchase and right of first refusal, he could have included such rights within the First Amendment to the Sublease, executed after Frontier’s Lease expired. However, that did not occur, and Chrysler held no more than its leasehold interest in the six-acre parcel.

The trial court correctly interpreted the contractual provisions as a matter of law. I would affirm the summary judgment.

      . Davis is referred to in his capacity as Trustee unless otherwise indicated. Chrysler subleased the six-acre parcel to University Dodge, Inc.

      . We recognize that this argument was not advanced by the parties in the trial court or on appeal but the “tipsy coachman” doctrine allows us to affirm if the judgment is legally correct, regardless of the reasoning of the trial court. See State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363, 365 (Fla.2002).


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    Wilson JEAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-630.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s order revoking appellant’s probation. The trial court found appellant violated probation by committing trespass of a structure or conveyance in violation of section 810.08, Florida Statutes (2002). Appellant argues the state failed to prove that he entered or remained in a structure or conveyance. He did not properly preserve this claim for appellate review because, at the revocation hearing, defense counsel represented to the court that appellant was charged with trespassing under section 810.09, Florida Statutes (2002), which prohibits trespassing on any property other than a structure or conveyance. As the failure to present evidence on a particular element of a charged crime is not fundamental error, but is subject to the contemporaneous objection rule, appellant needed to raise this argument below. See F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003). As to the claim that appellant had permission to enter the property on which he was arrested, it is clear that the court did not believe the testimony of appellant or his witnesses.

WARNER, KLEIN and TAYLOR, JJ., concur.


text:
    Kevin SMALL, Petitioner, v. James CROSBY, Respondent.
    No. 4D04-1614.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.
    Kevin Small, South Bay, pro se.
    No response required for respondent.
   PER CURIAM.

Kevin Small seeks a writ of certiorari, challenging the lower court’s refusal to rule on his mandamus petition because of his failure to pay a filing fee pursuant to section 57.085, Florida Statutes (2004). Small’s mandamus petition alleged that the Department of Corrections miscalculated his tentative release date.

Pursuant to Schmidt v. Crusoe, 2003 WL 1987971, 878 So.2d 361 (Fla. May 1, 2003), Small is not required to comply with section 57.085, because the underlying action is a “collateral criminal proceeding” and, thus, exempt from section 57.085. See § 57.085(10), Fla. Stat. (2004). However, we note that Schmidt does require Small to comply with the general indigency statute, section 57.081, Florida Statutes. See Schmidt, 878 So.2d at 367 n. 7.

Accordingly, we grant Small’s petition and quash the order of the trial court.

GUNTHER, SHAHOOD and TAYLOR, JJ., concur.


author: POLEN, J.

text:
    Willie PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1750.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises from a final order finding Willie Phillips guilty of attempted first degree murder and attempted robbery with a firearm. He was sentenced as a prison releasee reoffender to a mandatory minimum life sentence on count one and to thirty years on count two as a habitual violent felony offender. We affirm the order of the trial court in all regards.

On September 18, 2001, three males with guns entered a grocery store, in an attempt to commit a robbery. After a brief struggle, the clerk was shot in the face and the men left the store with nothing. An eyewitness identified one of the three men, who then named Phillips as a participant in the crime. Phillips later gave a taped confession. On October 25, 2001, Phillips was charged by information with one count of attempted first degree murder and one count of attempted robbery with a firearm.

At a pretrial hearing on Phillips’ motion to suppress, Phillips argued that the confession was coerced and not given freely and voluntarily. The trial court disagreed, and denied the motion. The transcript of Phillips’ statement was published to the jury and the tape of the statement was played for the jury during trial. When the State subsequently sought admission of Phillips’ taped statement, Phillips objected by stating “[njote my objection.” On the taped post-arrest statements, Phillips stated that he was not promised anything in return for his statement, he was confessing on his own free will because he did not mean for it to happen the way it did. Phillips also described the incident and his involvement with specificity.

Phillips moved for judgment of acquittal, which the trial court denied. The jury found Phillips guilty as charged and after Phillips was sentenced, he filed two motions to correct his sentence, both of which were denied.

On appeal, Phillips contends that the trial court erred in denying his motion to suppress since he was not adequately advised of his Miranda rights prior to giving a statement. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). More specifically, Phillips contends he was not adequately warned that he had the right to have an attorney present during questioning or that he had the right to discontinue the questioning at any time.

We deny appellant’s claim because this issue was not properly preserved for appellate review. Phillips merely filed a general motion to suppress in the trial court on the ground that he was “illegally interrogated by officers of the Broward Sheriffs Office in violation of [his] rights guaranteed by the Florida Constitution and the United States Constitution.” The only specificity as to the grounds for the motion can be found in defense counsel’s opening statement:

You’re going to hear that Mr. Phillips gave this confession after intimidation and coercion. He gave it after the police told him that other people have implicated him and he better fess up.
The evidence will show that the confession was not made voluntarily. It was coerced. It was made out of fear. It was made out of ignorance. And it was made as a result of intimidation.

Phillips’ own self-serving trial testimony and defense counsel’s closing argument were along the same line: that Phillips’ statement was coerced by police intimidation.

In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation. Lacey v. State, 831 So.2d 1267, 1268 (Fla. 4th DCA 2002) (citing Tillman v. State, 471 So.2d 32, 35 (Fla.1985)). Therefore, Phillips’ claim was not preserved because he failed to lodge a specific, contemporaneous objection on the same ground now raised on appeal.

Further, we do not find fundamental error. “The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Smith v. State, 521 So.2d 106, 108 (Fla. 1988). Fundamental error reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. Cochran v. State, 711 So.2d 1159 (Fla. 4th DCA 1998) (quoting Kilgore v. State, 688 So.2d 895; 898 (Fla.1996)). We do not find the error alleged here to meet this stringent standard.

As a result, Phillips’ argument was not preserved for appellate review and the panel cannot properly reach the merits of his argument. We find Phillips’ remaining argument also to be without merit. Accordingly, we affirm the order of the trial court.

This affirmance is without prejudice to Phillips’ filing any future 3.850 motion, should he so choose.

AFFIRMED.

GUNTHER and GROSS, JJ., concur.


text:
    Jake WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4496.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of possession with intent to sell cocaine. We reverse because the state failed to prove that he possessed the cocaine, which was found in a bedroom in which he was present.

After obtaining a warrant, the police entered the bedroom of an apartment of appellant’s grandmother. The officers, when they entered the bedroom, observed the appellant lying on a bed. Appellant’s cousin was standing next to a dresser. They found crack cocaine on top of the dresser and in a dresser drawer.

Appellant’s cousin pled guilty to possessing the cocaine with intent to sell. At appellant’s trial, the cousin testified that only he lived in the bedroom, and that he had placed the drugs on the dresser and in the drawer while appellant was sleeping in one of the two beds in the bedroom. He further testified that that appellant was asleep when the police entered the bedroom and that appellant was not aware of the drugs.

The grandmother testified that the cousin lived in the bedroom, but that the appellant did not, although he was a frequent visitor. She saw him asleep in the bedroom when the police entered. There was no evidence that the appellant lived in the bedroom, had control of it, or was aware of the presence of illegal drugs.

Appellant correctly argues that the state, in order to prove constructive possession under these facts, had to demonstrate that he had control or dominion over the room, citing Brown v. State, 428 So.2d 250 (Fla.1983). Although Brown is distinguishable on its facts, Brown cited with approval Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975), in which it was held that a defendant who did not have control or joint control of the premises, but was only a visitor, could not be convicted of possession, unless there was evidence of control over the drugs. Similarly, in Brooks v. State, 501 So.2d 176 (Fla. 4th DCA 1987), wfe held that a visitor in a bedroom occupied by another could not be guilty of possession of drugs unless there was evidence that the visitor had dominion and control over the drugs.

The state does not disagree with these cases, but contends that the jury could have found from the evidence that the appellant was more than a visitor, emphasizing that it was his grandmother’s apartment, that he was there almost every day, and he was sleeping in one of the beds. We disagree that this evidence was sufficient and accordingly reverse the conviction.

WARNER and TAYLOR, JJ., concur.


text:
    Charles MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1310.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.

      Charles Miller, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Charles Miller appeals an order denying his motion to correct an illegal sentence.

In Case Number 91-22625, Miller entered a negotiated plea to armed robbery and aggravated battery. He received concurrent terms of ten years probation.

In 1993, Miller violated his probation by committing a new substantive offense, aggravated battery, charged in Case Number 93-5219. On November 23, 1993, he was sentenced for the 1993 aggravated battery to six years in prison. For the violation of probation in the 1991 case, he was placed on seven years probation to run consecutive to his prison sentence for the new offense. The offenses in both cases were scored as primary offenses on the same guidelines scoresheet.

In 1996, Miller again violated his probation by committing a new offense, sexual battery. For violating probation in the 1991 case, he was sentenced within the permissible range on his scoresheet to life in prison for robbery and 15 years in prison for the aggravated battery.

In his motion to correct an illegal sentence, Miller argued that he was entitled to the credit for time served in the 1993 case against his prison sentence for violation of probation in the 1991 case based on Tripp v. State, 622 So.2d 941 (Fla.1993). We agree.

In Tripp, the Florida Supreme Court held that when separate offenses are sentenced together on the same score-sheet, they “must continue to be treated in relation to each other, even after a portion of the sentence has been violated.” Id. at 942. As a result,

if a trial court imposes a term of probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second offense.

Id.

In Cook v. State, 645 So.2d 436 (Fla.1994), the Florida Supreme Court held that Tripp applies to the situation in this case where a defendant is sentenced to prison for a new offense and resentenced to a consecutive term of probation for violating probation in a previous case. The defendant is entitled to Tripp credit in this situation because both offenses were scored on the same scoresheet.

Accordingly, we reverse. On remand, the circuit court shall award Miller credit for the time he served on his 1993 case on the sentence imposed for violating probation in the 1991 case.

GUNTHER, POLEN and TAYLOR, JJ., concur.


text:
    Antrawn PRICE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1482.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.
    Elizabeth Siano Harris of Stadler & Harris, P.A., Titusville, and Brian N. Onek of Balgo, Onek & Mawn, P.A., Melbourne, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Following an evidentiary hearing, Price appeals the denial of his rule 3.850 motion for post-conviction relief. Price was convicted of armed robbery, armed burglary, grand theft, and grand theft of a motor vehicle. This court affirmed the judgment and sentence. After summarily disposing of some post-conviction relief issues, the trial court conducted an evidentiary hearing on three grounds. We reverse as to one of the grounds.

The trial court’s order denying relief was issued seven (7) months after conducting the evidentiary hearing. Although we do not deem the seven-month delay prejudicial, the delay is significant when considering the trial court’s disposition of Price’s sixth claim. The trial court order incorrectly determined that Price abandoned that claim.

In Donn v. Donn, 733 So.2d 581, 582 (Fla. 4th DCA 1999), this court noted that there is “no bright line rule as to what constitutes a ‘reasonable time’ ” for the court to announce an order or judgment. Instead, “a key factor in such cases is whether ... there is any conflict or inconsistency between the judge’s statements or findings at the time of trial and the ultimate judgment entered later, or if there is a factual finding in the final judgment unsupported by the trial evidence.” Id. (quoting Florida Air Academy v. McKinley, 688 So.2d 359, 360 (Fla. 5th DCA 1997)). Therefore, reversal may be in order when there are “^Inconsistencies in the final judgment [which] suggested] that the trial judge may not have recalled the evidence presented at the hearing.” Id. at 583 (citing McKenzie v. McKenzie, 672 So.2d 48, 49 (Fla. 1st DCA 1996)).

The record shows ground six was not abandoned, but was, in fact, litigated at the evidentiary hearing. In that claim, Price alleged ineffective assistance of counsel as to his attorney’s failure to properly advise him regarding a plea offer.

At the evidentiary hearing, Price testified about his conversations with his attorney, Mr. Unruh, regarding the state’s failure to list two eyewitnesses and failure to conduct any DNA testing. Next, Price called the prosecutor, Mr. Taylor, who testified that there was a guidelines plea offer extended to Price, which was the same offer made to each of three co-defendants.

Price testified that Mr. Unruh spent “no more than five minutes” talking about the plea offer. He continued by stating that Mr. Unruh failed to tell Price that the same offer was extended to each of his co-defendants, which, if accepted, required the person to testify against the others. Further, Price testified that Mr. Unruh also failed to tell Price that the state was processing DNA and that the results would be used at trial. Finally, Price said that Mr. Unruh failed to inform him that, if the state listed the two witnesses, his defense strategy would be severely limited. According to Price, if the attorney had informed him of any of these concerns, he would have accepted the plea offer.

At the evidentiary hearing, Mr. Unruh testified that he conveyed the plea offer to Price, but Price was not interested in any plea.

This testimony all related to ground six. The only possible reference in the record to explain the court’s conclusion, seven months later, that Price abandoned the claim, is that after Price finished testifying, and prior to Mr. Unruh’s testimony, the court asked Price’s attorney “did you have any other ... did you have any other witnesses?” Price’s attorney responded, “[n]ot as to ground six, your Honor.” Clearly, the testimony of both Price and Taylor that had preceded this comment was directed to ground six. The state then called Mr. Unruh to rebut the testimony of Price. It, therefore, appears that ground six was not abandoned by Price.

Therefore, we remand for a new eviden-tiary hearing on Price’s sixth claim. As to all other issues, we affirm.

STONE, WARNER and POLEN, JJ., concur.