author: HAZOURI, J.

text:
    Michael F. LAPP, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 4D03-2622.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Rehearing Denied June 29, 2004.
    Andrew Schein of Beverly L. Vesel, P.A. & Associates, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara Rockhill Edwards, Assistant Attorney General, Tallahassee, for appel-lee Construction Industry Licensing Board.
   HAZOURI, J.

Michael Lapp appeals the Final Order, issued by the Construction Industry Licensing Board (Licensing Board) of the State of Florida on behalf of the Department of Business & Professional Regulation, denying his application for a Swimming Pool/Spa Contractor License. He contends that the Final Order is not supported by substantial competent evidence. We agree and reverse with instructions that Lapp be issued a license.

Lapp applied to the State of Florida Department of Business and Professional Regulation for state licensure as a swimming pool/spa contractor. The Licensing Board reviewed Lapp’s application and issued a Notice of Intent to Deny. As grounds for the denial, the Licensing Board found that Lapp lacked the good moral character required by section 489.111(2)(b), Florida Statutes (2002). Lapp sought review of the Notice of Intent to Deny and requested an informal hearing pursuant to section 120.57(2), Florida Statutes (2002). A hearing was held before the Licensing Board on May 9, 2003. The hearing was very brief, it consisted of the Licensing Board asking Lapp a series of questions.

The Licensing Board subsequently issued a Final Order denying Lapp’s application on the basis that Lapp lacked the good moral character required under the statutes. The Final Order indicates that the Licensing Board found that Lapp violated several applicable statutes by: making misstatements of fact on his application; being involved in the unlicensed practice of contracting; and aiding and abetting other contractors in the unlicensed practice of contracting.

A review of the record indicates that the alleged misstatements of fact made on Lapp’s application were insignificant and not intended to mislead the Licensing Board. These technical misstatements do not constitute clear and convincing evidence of a lack of good moral character as required by section 489.111(3)(a)(2).

The Licensing Board’s finding that Lapp engaged in the unlicensed practice of contracting is based on two Notices of Violation that Lapp received by the Palm Beach County Construction Licensing Board. Lapp acknowledged at the hearing that he received these violations. However, he argued that the violations were incurred only because the qualifying agent that he was working under had moved before the jobs were completed. The record reflects that after issuing the Notices of Violation, the Palm Beach County Construction Licensing Board found Lapp to be in substantial compliance with its requirements and determined that no further action would be taken. Lapp testified at the hearing that these incidents were a result of confusion and procedural obstacles. Lapp had previously been involved in the pool maintenance and repair business for several years in Broward County. When Lapp moved to Palm Beach County and attempted to open a business, he was required to obtain state licensure. Lapp was in the process of obtaining this licensure when the violations occurred. There was no evidence that Lapp had ever received notices of violation throughout his eleven-year career in Broward County. We hold that these violations were minor and do not provide clear and convincing evidence of a lack of good moral character.

The Licensing Board argues that there may have been several other incidents of unlicensed contracting during that time. However, there was no evidence presented at the hearing relating to any other incidents; therefore any allegation of additional violations is purely speculation and cannot form a basis for the denial.

With respect to the Licensing Board’s finding that Lapp aided and abetted other contractors in the unlicensed practice of contracting, there is no substantial, competent evidence to find that Lapp violated either section 455.227(l)(j) or section 489.129(l)(d) and (e).

Therefore, we reverse and direct the Licensing Board to issue Lapp a license.

REVERSED.

FARMER, C.J., and GUNTHER, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas Hiram COLLINS, a/k/a Thomas H. Collins, a/k/a T.H. Collins, Appellant, v. THE SOCIETY OF LLOYD’S, Appellee.
    No. 4D03-2674.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Rehearing Denied June 25, 2004.

      John E. Moore, III, and Thomas W. Tierney of Rossway Moore & Taylor, and Lisa D. Harpring of Harpring & Harpring, L.L.P., Vero Beach, for appellant.
    Peter H. Levitt of Adorno & Yoss, P.A., Miami, for appellee.
   PER CURIAM.

Affirmed. See Society of Lloyd’s v. Turner, 303 F.3d 325 (5th Cir.2002).

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    Little Willie HARPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-408.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Rehearing Denied June 22, 2004.
    Little Willie Harper, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Little Willie Harper filed a rule 3.800(a) motion challenging the trial court’s retention of jurisdiction over one-third of his sentence. His claim is that the trial court failed to enter a written order to justify such retention. Hernandez v. State, 825 So.2d 513 (Fla. 4th DCA 2002).

We have held that this is a proper claim for relief under Florida Rule of Criminal Procedure 3.800(a). See Hernandez, Sapp v. State, 864 So.2d 75 (Fla. 4th DCA 2003); See also Bingham, v. State, 813 So.2d 1021 (Fla. 1st DCA 2002); Hampton v. State, 764 So.2d 829 (Fla. 1st DCA 2000); Macias v. State, 614 So.2d 1216 (Fla. 3d DCA 1993). Accordingly, we certify conflict with the opinions from the second district holding to the contrary. Wright v. State, 864 So.2d 1153 (Fla. 2nd DCA 2003); Garcia v. State, 867 So.2d 625 (Fla. 2nd DCA 2004). The case is reversed and remanded to the trial court to either relinquish the retention of jurisdiction over Harper’s sentence or to make specific individual findings in accordance with the statute on retention of jurisdiction. Hernandez.

POLEN, GROSS and HAZOURI, JJ., concur.


author: DAMOORGIAN, DORIAN K., Associate Judge.

text:
    Sally O’CONNELL and Donna Meltzer, individuals, and Martin County Conservation Alliance, Inc., a Florida not-for-profit corporation, Appellants, v. FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, Martin County, Florida, Dick Blydenstein and Economic Council of Martin County, Inc., Appellees.
    No. 4D03-380.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Rehearing Denied July 1, 2004.

      Joan Wilcox, Regional Counsel, of the Environmental and Land Use Law Center, Inc., Stuart, (withdrawn as counsel after filing brief) and Richard Grosso, General Counsel, of the Environmental and Land Use Law Center, Inc., Fort Lauderdale, for appellants.
    David L. Jordan, Deputy General Counsel, of the Department of Community Affairs, Tallahassee, for appellee Florida Department of Community Affairs.
    David A. Acton, Senior Assistant County Attorney, and Stephen Fry, County Attorney, Martin County Administrative Center, Stuart, for appellee Martin County, Florida.
    Johnathan A. Ferguson of Ruden, McClosky, Smith, Schuster & Russell, P.A., Port St. Lucie, and John H. Pelzer of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellee Dick Blydenstein.
   DAMOORGIAN, DORIAN K., Associate Judge.

The Appellants, Sally O’Connell, Donna Meltzer, and Martin County Conservation Alliance Inc. (“MCCA”), a Florida not-for-profit corporation, are appealing a final order of the Department of Community Affairs (“Department”). Because we find that Appellants lack standing to appeal this order, we dismiss the appeal.

The Appellants challenged three amendments to the Martin County Comprehensive Growth Management Plan adopted by Martin County, Florida. A formal hearing was conducted by an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings. The ALJ issued a Recommended Order to the Department, recommending entry of a final order finding the amendments in compliance. After considering the Exceptions to the Recommended Order, the Department accepted the order with minor changes and found the amendments in compliance pursuant to section 163.3184(1) (b) of the Florida Statutes. Appellants appeal this final order.

Standing on appeal requires more than standing at the administrative level. See Daniels v. Fla. Parole & Prob. Comm’n, 401 So.2d 1351, 1354 (Fla. 1st DCA 1981), aff'd sub nom., Roberson v. Fla. Parole & Prob. Comm’n, 444 So.2d 917 (Fla.1983), abrogated on other grounds by, Griffith v. Fla. Parole and Prob. Comm’n, 485 So.2d 818 (Fla.1986). In Daniels, the court stated that:

[t]he fact that a person may have the requisite standing to appear as a party before an agency at a de novo proceeding does not mean that the party automatically has standing to appeal. The APA’s [Administrative Procedure Act] definition of a party recognizes the need for a much broader zone of party representation at the administrative level than at the appellate level- [A] person who participates in such a proceeding by a statute, rule, or by an agency’s permission, may not necessarily possess any interests which are adversely, or even substantially, affected by the proposed action.

Id. at 1354; see also Fox v. Smith, 508 So.2d 1280, 1281 (Fla. 3d DCA 1987). In order to have standing on appeal under section 120.68(1), Florida Statutes (2003), the Appellants must be not only “affected,” but “adversely affected by [the] final agency action.” Here, the Appellants have failed to demonstrate that they were adversely affected by the agency’s action.

We start our analysis with the United States Supreme Court’s ruling in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), where the Court considered whether the Sierra Club, an organization “with a historic commitment to the cause of protecting our Nation’s natural heritage from man’s depredations” had standing to object to the construction of a Walt Disney ski resort located next to the Sequoia National Park in the Sierra Nevada Mountains. Id. at 729-32, 739, 92 S.Ct. 1361. As in this case, the controlling statute required a person to be “ ‘adversely affected or aggrieved’ ” to seek judicial review. Id. at 732-33, 92 S.Ct. 1361 (quoting 5 U.S.C. § 702).

The Court found that the Sierra Club’s asserted interest to preserve the area from commercialization and to protect the environment, while being important “ingredients of quality of life,” did not meet the requirements of the injury in fact test requiring a “party seeking review be himself among the injured” to have standing. Id. at 734-35, 92 S.Ct. 1361. Neither the Sierra Club nor its members asserted that they owned property in the area in question or that they even used the area. Id. at 735, 92 S.Ct. 1361. The Court stated that “a mere ‘interest in a problem,’ no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization ‘adversely affected’ or ‘aggrieved’ within the meaning of’ the statute. Id. at 739, 92 S.Ct. 1361.

Our supreme court has also considered the standing of a public interest advocacy-organization in Legal Environmental Assistance Foundation (“LEAF”) v. Clark, 668 So.2d 982 (Fla.1996), where the organization challenged the Public Service Commission’s adoption of “numeric demand-side management goals” to conform with “Florida’s Energy Efficiency and Conservation Act” (“FEECA”). Id. at 983. LEAF’S asserted interest in increasing the efficiency of energy services mirrored the purposes of FEECA and the demand-side goals. Id. at 987. Thus, the court in LEAF, held that LEAF did not have the requisite standing to appeal because its interests were not “adversely affected” by the agency action. Id.

This court addressed a similar standing issue in Challancin (In re Surface Water Management Permit No. 50-01420-S) v. Florida Land & Water Adjudicatory Commission, 515 So.2d 1288 (Fla. 4th DCA 1987). We considered the Audubon Society’s standing to challenge the issuance of a permit by the South Florida Water Management District to the Appellants who were attempting to build a project known as J-Mark Fishing Village on Torry Island in Lake Okeechobee. Id. at 1289. The statute required the Audubon Society to demonstrate that it was “adversely affected” by the permit’s issuance. Id. at 1292. This court noted that unlike the situation in Morton, the parties did allege actual ownership of land in the affected area. Id. at 1293. The Audubon Society’s interest involved a concern with flood waters and the depletion of the water supply, both interests directly touching all property owners. Id. The Audubon Society had therefore demonstrated that it would be “adversely affected” by the issuance of the permit. Id .

Unlike Challancin, however, none of the individual Appellants have stated how the amendments will adversely affect them. The MCCA has also failed to assert how its members will be adversely affected by the amendments. The Appellants state that they or their members own property in Martin County; however, they have not asserted that their property is located near the sites affected by the amendments or how they would be adversely affected by the amendments.

The petition for a formal hearing filed by the Appellants, stated that:

[t]he subject matter of this proceeding is within the scope of interest of the MCCA, which has among its primary purposes and goals involvement and advocacy concerning growth management in Martin County and the enforcement of the Comprehensive Plan on behalf of its members and the citizens at large. It is among the primary purposes of the MCCA to work to preserve community and natural resources and quality of life in Martin County, and to enforce laws designed to further these goals of its members and the citizens at large.

As in Morton, the MCCA’s asserted interest is only a general interest in maintaining the quality of life in Martin County by controlling future land use and managing growth in the county. This general interest, unlike the concern of a devastating flood or the exhaustion of the water supply, does not have a direct impact on individual property owners, sufficient enough to establish that the MCCA or its individual members will be adversely affected by the proposed amendments. See also Fla. Rock Props. v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998) (considering a statute that required a person to be adversely affected to have standing and finding that an allegation that a person owns property in a county where rezoning is to take place is not sufficient to show the plaintiff was adversely affected where the particular plaintiff “never demonstrated any specific injury, only that the county would not be as bucolic as it once was,” and thus finding that the plaintiff was “a citizen with an interest in the environment and nothing more”).

Accordingly, we conclude that the Appellants do not have standing to challenge the Department’s final order on appeal.

The appeal is DISMISSED.

POLEN and MAY, JJ., concur.

      . "[Tjhere are four requirements for standing to seek ... [judicial] review [of a final agency action]: (1) the action is final; (2) the agency is subject to provisions of the act; (3) the person seeking review was a party to the action; and (4) the party was adversely affected by the action.” Legal Envtl. Assistance Found, v. Clark, 668 So.2d 982, 986 (Fla.1996). Only the fourth requirement is at issue in this case.

      . The first district suggested that Challancin was sub silencio overruled by LEAF. See Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., 802 So.2d 520 (Fla. 1st DCA 2001). We respectfully disagree. “[A] catastrophic loss of South Florida’s water supply” or "devastating flood waters” would adversely affect the litigants' property. Challancin, 515 So.2d at 1293. Thus, our court applied the same standard as the supreme court in LEAF. The factual differences in the cases simply mandated different outcomes on the issue of standing to appeal.

      . In general, an association has standing to sue "on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Fla. Home Builders Ass’n v. Dep't of Labor & Employment Sec., 412 So.2d 351, 353 (Fla.1982).


text:
    William Guy PETERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-837.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.

      Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant challenges his conviction for one count of battery, one count of trespass, and one count of fleeing or attempting to elude a law enforcement officer. These charges all arose from incidents involving his ex-wife in her home. He argues that the trial court reversibly erred in denying his challenge for cause against a potential juror who said she was still “devastated” by her past experience also involving spousal abuse. We agree and reverse.

During voir dire, a potential juror responded to the state’s inquiry that she had experienced abuse in her former marriage. She testified that her former husband had abused her. Although she had been divorced for twenty years, she said “I’m still devastated over what happened.” When the prosecutor asked if she could decide the case based solely on the evidence and the law, she said yes.

Defense counsel further questioned this juror about the experience of spousal abuse. She said she was devastated and traumatized by the abuse which had occurred throughout her ten-year marriage. She said that her experiences would play a role in how she decided the case. She also said she would rather sit on another kind of case. The trial judge then asked her whether in spite of her past experiences she could be fair and impartial and decide this case on the law and the evidence. She responded, “I think I could, Yes.”

Defendant challenged this juror for cause, arguing that she had expressed continuing devastation resulting from spousal abuse. Stating that he was convinced that the juror could be fair and impartial, the trial judge denied the challenge. Defendant requested an extra peremptory challenge. The trial judge denied his request, and defendant identified another objectionable seated juror. Over defendant’s renewed objection, the challenged juror was seated on the jury that returned the guilty verdict.

Defendant has preserved his argument that the trial court reversibly erred in refusing to excuse this juror for cause because her traumatic personal experience with spousal abuse affected her ability to be fair and impartial for our review. See Trotter v. State, 576 So.2d 691, 693 (Fla.1990); (defendant must show that all peremptory challenges were exhausted and that objectionable juror had to be accepted); Jenkins v. State, 824 So.2d 977, 981 (Fla. 4th DCA 2002) review denied, 842 So.2d 844 (Fla.2003) (necessary to object to seated juror and attempt to use peremptory challenge in order to preserve issue of seating biased juror).

The test for juror competency is whether a juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. Ault v. State, 866 So.2d 674, 683 (Fla.2003). The trial court should excuse any juror for cause if any reasonable doubt exists as to whether the juror is impartial. Ault, 866 So.2d at 683 (citing Bryant v. State, 656 So.2d 426, 428 (Fla.1995)). In this district, close cases should be resolved in favor of excusing the juror rather than leaving a doubt about the juror’s impartiality. Jaffe v. Applebaum, 830 So.2d 136, 138 (Fla. 4th DCA 2002); Rodas v. State, 821 So.2d 1150, 1153 (Fla. 4th DCA 2002) (same); Bryant v. State, 765 So.2d 68, 71 (Fla. 4th DCA 2000) (same); Henry v. State, 756 So.2d 170, 172 (Fla. 4th DCA 2000) (same); James v. State, 736 So.2d 1260, 1262 (Fla. 4th DCA 1999) (same); Lowe v. State, 718 So.2d 920, 921 (Fla. 4th DCA 1998) (same); Akins v. State, 694 So.2d 847, 848-49 (Fla. 4th DCA 1997) (same); Williams v. State, 638 So.2d 976, 978 (Fla. 4th DCA 1994) (same); Montozzi v. State, 633 So.2d 563 (Fla. 4th DCA 1994) (same); Chapman v. State, 593 So.2d 605, 606 (Fla. 4th DCA 1992) (same); Moore v. State, 525 So.2d 870 (Fla.1988) (same); see also Longshore v. Fronrath Chevrolet, Inc., 527 So.2d 922, 923 (Fla. 4th DCA 1988) (same); Sydleman v. Benson, 463 So.2d 533, 533 (Fla. 4th DCA 1985) (same). While the decision to accept or dismiss a putative juror is considered an exercise in discretion, we view the seating of a juror as to whom there is a reasonable doubt concerning impartiality an abuse of discretion and thus “manifest error”. See Ault, 866 So.2d at 684 (“A trial court’s determination of juror competency will not be overturned absent manifest error.”).

This potential juror expressed that she was still “devastated” by past traumatic experiences of abuse by her own spouse. She also said that she believed that her experience would play a role in how she decided this case. This is the paradigm response casting reasonable doubt on a juror’s ability to be fair and impartial. Again, we note that this case involves charges that defendant battered his ex-wife. See Rodriguez v. State, 816 So.2d 805, 807 (Fla. 3d DCA 2002) (juror’s comments regarding her prior experiences with abuse “should have sent up a red flag that she had no business sitting on a case in which defendant was charged with an offense involving domestic violence.”). We find manifest error in the trial court’s refusal to excuse her.

The state contends that the juror was rehabilitated because she told the court she could be fair and impartial. The juror in fact responded to the court’s leading question with the words, “I think I could, Yes.” Yet, as we have held, a juror’s later statement that she can be fair does not erase a doubt as to impartiality when the juror has previously expressed some attitude or personal experience that continues to affect the juror in some way. Rodas, 821 So.2d at 1153; Williams 638 So.2d at 979.

We thus conclude that the record does not support the trial judge’s exercise of discretion in this case. The juror’s own experience involving the very kind of conduct involved in the trial was still devastating to her some twenty years after the events. At best her record testimony is that she could “try” to be fair. She never even approached testifying that she felt confident that she could be fair. Her qualified response is therefore a legally insufficient indicium of impartiality. See Bell v. State, 870 So.2d 893 (Fla. 4th DCA 2004) (finding juror’s remark that he would try not to be biased legally insufficient); Williams, 638 So.2d at 979 (a juror could “even believe he could be ‘fair and impartial,’ but still interpret the evidence based on his own previously expressed deep feelings”).

This juror’s remarks cast a broad shadow of doubt on defendant’s right to a fair and impartial jury. That shadow was not removed by her responses to the later questioning. She should have been excused for cause. We reverse the conviction and remand for a new trial. See Singer v. State, 109 So.2d 7, 23-24 (Fla.1959).

REVERSED.

FARMER, C.J., GUNTHER and HAZOURI, JJ., concur.


author: STEVENSON, J.

text:
    WM SPECIALTY MORTGAGE, LLC, Appellant, v. Alan F. SALOMON and Frances Salomon, et al., Appellees.
    No. 4D03-3318.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Mark Broderick of Echevarria & Associates, P.A., Tampa, for appellant.
    Gary Barcus, Pembroke Pines, for ap-pellees Alan and Frances Salomon.
   STEVENSON, J.

In the instant case, WM Specialty Mortgage, LLC, (WM Specialty) appeals a final order dismissing its mortgage foreclosure action with prejudice and an order vacating default. We affirm the order vacating default, but reverse the order of dismissal.

On December 3, 2002, WM Specialty filed a mortgage foreclosure complaint against the borrower/appellee, Alan F. Sa-lomon. Salomon failed to respond to the complaint and a default was entered. He subsequently hired an attorney, however, who moved to vacate the default. In addition, Salomon filed a motion to dismiss, along with affidavits. Salomon challenged the complaint as not complying with Florida Rule of Civil Procedure 1.130(a) in that it attached a mortgage in favor of Fremont Investment and Loan (Fremont), but no assignment of mortgage showing that WM Specialty was in privity with Fremont. In his affidavit, Salomon stated that he did not execute a mortgage with WM Specialty. In response, WM Specialty filed an assignment of mortgage.

The assignment reflected that the mortgage was transferred to WM Specialty by Fremont on November 25, 2002; however, the jurat indicated that the assignment was not executed until January 3, 2003. Following a hearing, the trial court entered an order vacating the default against Salomon, finding that

[T]he present plaintiff, WM Specialty Mortgage, LLC, did not own and hold the note when it filed its foreclosure lawsuit on December 3, 2002; did not own and hold the note when it served Alan Salomon and Frances Salomon on December 17, 2002; and only on January 3, 2003, at the earliest did the plaintiff acquire the mortgage note by assignment, long after the lawsuit was filed and after these named defendants were served. The complaint is therefore void ab initio.

In a subsequent order entitled “Final Order,” the court denied a motion to compel discovery as moot, stating

The July 23, 2003 Order Vacating Defaults found that plaintiffs complaint was void ab initio since the assignment of mortgage was executed after the complaint was filed. The effect of this finding was to dismiss the complaint as of July 23, 2003. Plaintiff may file refile [sic] a separate [sic] action as the July 23, 2003 . Order did not provide for amending the complaint.

WM Specialty filed a timely notice of appeal.

Procedurally, the instant case presents itself to this court in a somewhat awkward posture. Instead of challenging WM Specialty’s interest in a motion to dismiss, Salomon did so in his motion to vacate the default. In disposing of that motion, the court granted the motion, but went further than vacating the default and found that the complaint was “void, ab initio.” Subsequently, in denying a motion to compel discovery as moot, the trial court indicated that the effect of the earlier order vacating the default was to dismiss the complaint as of the date of that order. Because the trial court clearly intended that the two orders finally dispose of the case, this court has jurisdiction.

In vacating the default against Salomon and essentially dismissing the cause for lack of standing, the trial court relied upon Jeff-Ray Corp. v. Jacobson, 566 So.2d 885, 886 (Fla. 4th DCA 1990). In that case, the defendant sought to dismiss a foreclosure complaint on the ground that it failed to state a cause of action. The trial court denied the motion to dismiss. This court reversed because the complaint for foreclosure, which had been filed on January 4, 1988, had alleged an assignment of mortgage dated in 1986, but the assignment was not attached to the complaint. When the assignment was produced, it was dated April 18, 1988, some four months after the lawsuit was filed. Id

The court in Jejf-Ray held that the trial court erred in not dismissing the complaint for failure to state a cause of action because it relied upon an assignment which was not in existence at the time the complaint was filed. The court cited rule 1.130, which requires a plaintiff to attach to the complaint all documents upon which the action is based. Id

In Jejf-Ray, there was no mention in the opinion as to whether, although the assignment was executed after the complaint was filed, equitable transfer of the mortgage occurred prior. This situation was addressed in Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938). In Johns, a homeowner purchased building materials from a lumber company in 1923 and gave, in exchange for the debt, the promissory note and mortgage on her home. Id at 141. The homeowner thereafter died. In 1927, the lumber company fell on hard times and received an advance of money from Gillian. In exchange, the company delivered to Gillian a number of securities, among which was the homeowner’s note and mortgage. No assignment of the mortgage was executed. Id

In 1937, Gillian began foreclosure proceedings in the name of the company against the homeowner’s surviving husband and heirs. After suit was initiated, the company executed an assignment purporting to assign the note and mortgage to Gillian and Gillian was substituted as the plaintiff. Id The assignment was found to have been defectively executed because the corporate seal was not used; the court nevertheless held that equitable interest in the property had passed to Gillian, based on the following reasoning:

However, it has frequently been held that a mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt, unless there be some plain and clear agreement to the contrary, if that be the intention of the parties.
Although the assignment of the mortgage from Everglade Lumber Company to Gillian was defectively executed, it may be taken as evidence to show that the company had, before the commencement of the suit, sold and transferred to Gillian its entire interest in the note and mortgage. A mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered.
Any form of assignment of a mortgage, which transfers the real and beneficial interest in the securities unconditionally to the assignee, will entitle him to maintain an action for foreclosure. Or if there had been no written assignment, Gillian would be entitled to foreclose in equity upon proof of his purchase of the debt.

Id at 143-44 (citations omitted).

The analysis applied in Johns is applicable to this case; therefore, the dismissal was error. Here, the assignment indicates that on November 25, 2002, Fremont physically transferred the mortgage to WM Specialty, even though the assignment was not actually executed until January 3, 2003. At a minimum, as WM Specialty suggests, the court should have upheld the complaint because it stated a cause of action, but considered the issue of WM Specialty’s interest on a motion for summary-judgment. An evidentiary hearing would have been the appropriate forum to resolve the conflict which was apparent on the face of the assignment, i.e., whether WM Specialty acquired interest in the mortgage prior to the filing of the complaint.

Accordingly, we reverse the order of dismissal and remand for further proceedings. Appellant has failed to demonstrate error with respect to the order vacating default.

AFFIRMED in part, REVERSED in part, and REMANDED.

GUNTHER and TAYLOR, JJ., concur.

      . In the order on the motion to compel, the trial court indicated that WM Specialty could refile a separate action since the order vacating default and dismissing the complaint did not provide the opportunity for WM Specialty •to amend the complaint.


text:
    Ted PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4919.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Ted Parker, Punta Gorda, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Ted Parker (“Parker”) appeals a trial court order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence in which he challenged his sentencing under the Prison Releasee Reoffender Punishment Act (“PRRPA”) and the sentencing guidelines. After an appeal to this court, in which we reversed his sentence, see Parker v. State, 764 So.2d 888, 889 (Fla. 4th DCA 2000), Parker was resentenced to a guidelines sentence of twelve and a half years in prison along with a five year mandatory minimum term as a prison releasee reoffender. This too was appealed to this court and affirmed. See Parker v. State, 849 So.2d 317 (Fla. 4th DCA 2003). Parker then filed a motion to correct an illegal sentence which was denied. We reverse.

Parker argues that the sentence as imposed was illegal in light of section 775.082(9)(a)2., Florida Statutes (Supp. 1998), which provided in part:

Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows:
d. For a felony of the third degree, by a term of imprisonment of 5 years.

The state, however, points to a later provision of the same statute, section 775.082(9)(c), which provides:

Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law.

If this latter section were read as the state has urged here, it would have the effect of cancelling out the earlier, more specific provision of the same section expressly barring a prison releasee reoffen-der from being eligible for guidelines sentencing. “A basic principle of statutory construction requires that ‘all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” M.W. v. Davis, 756 So.2d 90, 101 (Fla.2000) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)). We do not believe that this section overrides the express prohibition against guidelines sentencing for a defendant found to be a prison releasee reoffender.

We find support for our conclusion in Nettles v. State, 850 So.2d 487 (Fla.2003). The supreme court reviewed Nettles in light of possible conflict with State v. Wilson, 793 So.2d 1003 (Fla. 2d DCA 2001), in which the second district held that a defendant found to qualify as a prison releasee reoffender cannot be sentenced under the guidelines but rather could only be sentenced pursuant to the mandatory sentence provided by the PRRPA. This is the same issue as presented in our case. In Nettles, the supreme court held that a defendant could lawfully be sentenced to both PRRPA and Criminal Punishment Code (“CPC”) sentencing, and that, therefore, a defendant’s sentence to 66.4 months in prison, with 60 months to be served under the PRRPA and 6.4 months to be served under the CPC, was a legal sentence. See Nettles, 850 So.2d at 492. The majority opinion recognized, in dicta, that the statute (renumbered as 775.082(9)(a).3, Fla. Stat. (2000)) “specifically excludes sentencing under the guidelines ...” Id. at 490.

The majority opinion of the supreme court found that Nettles involved a different issue than presented in the Wilson case because Nettles concerned whether a defendant could lawfully be sentenced under the PRRPA and the CPC, and the Wilson case addressed whether a defendant could lawfully be sentenced under the PRRPA and the sentencing guidelines. The majority opinion concluded that there was no real conflict because the issues were distinct. The majority did state that it was disapproving of the Wilson decision to the extent that it was inconsistent with its opinion, see Nettles, 850 So.2d at 495, but Justice Cantero, joined by Justices Pariente and Bell, pointed out in a special concurrence that this should not be read as a disapproval of the result in that case as it raised different issues than the instant appeal. He reasoned, “[t]he difference [in issues] is critical because the PRRPA specifically prohibits application of the sentencing guidelines, not the CPC,” and concluded the majority correctly determined “that no actual conflict exists between” the cases. Id.

Based on Nettles, which was decided after our decision affirming the resentenc-ing in this case, we reverse the trial court order denying Parker’s motion to correct illegal sentence and remand for resentenc-ing in accordance with this opinion.

WARNER, GROSS and TAYLOR, JJ., concur.


text:
    Desmond ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1682.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Desmond Rolle, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. As we did in Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003)(en banc), which held that Chapter 99-188, Laws of Florida, does not violate the single subject rule, we certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Likewise, we certify conflict with the Fifth District’s recent decision in Jones v. State, 872 So.2d 938 (Fla. 5th DCA 2004)(on rehearing en banc).

POLEN, STEVENSON and GROSS, JJ., concur.


text:
    Joshua WILLINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1883.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Carey Haughwout, Public Defender, and Tara A. Finnigan, 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.
   PER CURIAM.

We affirm appellant’s conviction, but reverse Ms sentence. The trial court added eighteen points to appellant’s scoresheet because there was evidence that he used a firearm; however, the criminal punishment code scoresheet, under which appellant was sentenced, provides that additional points for possession of a firearm are assessed if the offender is convicted of “any felony other than those enumerated in section 775.087(2), Florida Statutes.” § 921.0024(l)(b), Fla. Stat. (2001) (Worksheet Key). The crime, second degree murder, is listed in section 775.087(2), and accordingly the points for possession of a firearm should not have been added to the scoresheet. We accordingly reverse for resentencing.

STONE, KLEIN and TAYLOR, JJ., concur.


author: FARMER, C.J.

text:
    CREEKPATH SYSTEMS, INC., a Delaware Corporation, Appellant, v. RABROB CORP., a Florida Corporation, d/b/a Sales Consultants of Plantation, Appellee.
    No. 4D02-2812.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Caran Rothchild of Greenberg Traurig, P.Á., Fort Lauderdale, and Charles Bradley Sutton of General Counsel At Large, LLC, Boulder, Colorado, for appellant.
    George H. Aslanian, Jr., of Aslanian & Aslanian, Fort Lauderdale, for appellee.
   FARMER, C.J.

We reverse a nonfinal order finding personal jurisdiction over a nonresident defendant.

Essentially plaintiff is in the business of finding personnel for companies in need. Defendant is a Colorado company in the computer software business who hired a new sales consultant.

The background is this. A banker who dealt with defendant recommended a candidate for employment. As a result, the candidate contacted defendant. Shortly after that, plaintiff contacted two of defendant’s staff to sell its recruitment services to defendant, but both staff members declined any engagement. Nevertheless plaintiff sent defendant a form letter purporting to confirm an engagement and stating that if defendant hired anyone referred to it by plaintiff that act would constitute de facto acceptance of the engagement and the terms of plaintiffs standard form agreement. When called by plaintiff, one staff person with defendant said that she would “run [the papers] by the CFO.”

Meanwhile plaintiff happened to speak to the candidate already recommended by the banker and suggested defendant as an employer who would be interested in his services. Plaintiff sent the candidate’s ré-sumé to defendant by e-mail. Later, defendant employed the candidate.

Plaintiff sued defendant here in Florida for breach of contract and on the common counts. Defendant responded with a motion to dismiss for lack of jurisdiction. By affidavits defendant established that it is a Delaware corporation with its only office in Colorado. It showed that it has no office in Florida, nor does it conduct or solicit business here. None of this evidence was contradicted by plaintiff in its evidentiary showing. Plaintiffs affidavits included the papers sent to defendant, with the assertion that defendant’s hiring of the candidate meant acceptance of the engagement which, plaintiff asserted, also meant that defendant had breached the contract by failing to pay plaintiff.

There was absolutely no evidence to support any finding that defendant does business in Florida or solicits business here. Hence the only possible basis for long arm jurisdiction was plaintiffs assertion that defendant breached a contract requiring performance in Florida. See § 48.193(l)(g), Fla. Stat. (2003) (person subjects himself to Florida courts’ jurisdiction by “breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.”). Even if the proposed contract were actually accepted by defendant — and, we stress, we doubt the record shows sufficient evidence of an acceptance — plaintiffs showing was that the only act defendant had to perform in Florida was payment to plaintiff here.

The supreme court has said “we do not believe that the mere failure to pay money in Florida, standing alone, would suffice to obtain jurisdiction over a nonresident defendant.” Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla.1989). As the court explained:

“To put this statement in perspective, consider a scenario in which a New York company telephones a Florida resident and convinces him to buy a $5 widget. The Florida resident returns the widget without payment because it does not work. Surely, it could not be said that the Florida resident had sufficient minimum contacts with New York such that he should reasonably contemplate being haled into court there to defend against a suit for nonpayment.”

554 So.2d at 503.

To be sure, it is grossly evident from the affidavits that defendant did nothing to purposefully direct its activities to plaintiff, much less Florida. There is nothing showing that it sought to avail itself of the privilege of carrying on business activities here. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satis fy the requirement of contact with the forum State.... [I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Without such purposeful availment, there is no basis for defendant to foresee being subject to suit in Florida.

REVERSED.

WARNER and MAY, JJ., concur.


author: TAYLOR, J.

text:
    Y.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1132.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Y.J. was adjudicated delinquent and placed on probation for burglary of the girls’ locker room at Plantation High School. Y.J. appeals the adjudication, contending that the trial court erred in denying her motions for judgment of acquittal and abused its discretion in adjudicating her delinquent without stating any facts to support its decision to adjudicate her instead of withholding adjudication.

We affirm the denial of the motions for judgment of acquittal, because the evidence presented at trial established a pri-ma facie case of burglary and supported the trial court’s finding that Y.J. unlawfully entered the girls’ locker room with the intent to commit a theft therein. Among the evidence presented at trial was testimony that Y.J. admitted to entering the locker room and to taking items from the lockers without permission.

We also affirm the trial court’s decision to adjudicate Y.J. delinquent without making any specific findings for the adjudication. Although failure to make specific findings before adjudication and commitment of a juvenile is reversible error, where the court, as here, merely adjudicates the child delinquent and places her on probation without committing her to the Department of Juvenile Justice, there is no statutory requirement for specific findings. See F.N. v. State, 745 So.2d 1149, 1151 (Fla. 4th DCA 1999). As we explained in F.N.:

[Sjection 985.23(3)(a), Florida Statutes (1999), did not require the trial court to make specific findings of its reasons for deciding to adjudicate the defendant to be delinquent. That subsection applies when a court determines “that the child should be adjudicated as having committed a delinquent act and should be committed to the [Department of Juvenile Justice].” Id. (emphasis added).

In urging reversal of the delinquency adjudication, Y.J. relies upon the fifth district’s holding in L.R. v. State, 832 So.2d 875, 876 (Fla. 5th DCA 2002). There, the court, in applying section 985.228, Florida Statutes (2000), stated that “in circumstances where an adjudication is entered, the trial court must state briefly the facts upon which the adjudication was based.” We, however, do not read section 985.228 to impose such a requirement.

The relevant portions of the statute are subsection (4), which provides for the withholding of adjudication, and subsection (5), which governs the entry of adjudication. These subsections provide, in pertinent part, as follows:

(4) If the court finds that the child named in the petition has committed a delinquent act or violation of law, it may, in its discretion, enter an order stating the facts upon which its finding is based but withholding adjudication of delinquency and placing the child in a probation program under the supervision of the department or under the supervision of any other person or agency specifically authorized and appointed by the court....
(5) If the court finds that the child named in a petition has committed a delinquent act or violation of law, but elects not to proceed under subsection (4), it shall incorporate that finding in an order of adjudication of delinquency entered in the case, briefly stating the facts upon which the finding is made, and the court shall thereafter have full authority under this chapter to deal with the child as adjudicated.

(emphasis added)

We do not read subsection (5) as requiring the trial court to make findings for its decision to adjudicate the child delinquent. Instead,, we interpret it as requiring the court to incorporate its finding that the child committed a delinquent act or violation of law into the order of adjudication, and to give a brief statement of the facts upon which it based its finding that the child committed a delinquent act or violation of law. In our view, the required factual findings relate to the court’s determination of guilt and not to its ultimate disposition on delinquency. We acknowledge conflict between the fifth district and our district on this issue.

For the reasons stated above, we affirm the adjudication of delinquency and disposition entered by the trial court.

AFFIRMED.

GUNTHER and STEVENSON, JJ., concur.

      . See T.N. v. State, 786 So.2d 655 (Fla. 4th DCA 2001); J.M. v. State, 692 So.2d 308 (Fla. 4th DCA 1997).


author: GROSS, J. WARNER, J.,

text:
    Gary Stuart Dennis ISRAEL, Appellant, v. Beth A. ISRAEL, Appellee.
    No. 4D03-1627.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Cynthia L. Greene of Law Offices of Greene, Smith & Associates, P.A., Miami, and Richman, Greer, Weil, Brumbaugh, Mirabito & Christensen, P.A., Miami, for appellant.
    Terry Ellen Fixel of Fixel & LaRocco, Hollywood, for appellee.
   GROSS, J.

After extensive litigation, the parties to this appeal were divorced by a final judgment entered in Broward County on February 8, 2001.

On February 8, 2003, the former husband filed a petition for modification in Miami-Dade County. While claiming that he lived out-of-státe, the former husband alleged that the former wife and the parties’ minor children were residing in Miami-Dade County.

Pertinent to this appeal, the former wife filed a motion in Broward County to enjoin the former husband from litigating the modification in Miami-Dade County. As grounds, the former wife asserted that she and the children resided in Broward County-

The circuit court in Broward County granted the former wife’s motion. The Miami-Dade County circuit court then dismissed the former husband’s modification motion, which he did not appeal.

We reverse the injunction entered against the former husband. It is the “responsibility of the court where the proceedings are pending” to rule on the propriety of venue. Foti v. Camejo, 812 So.2d 507, 508 (Fla. 3d DCA 2002). Case law demonstrates that the proper procedure for dealing with a venue dispute in a post-dissolution modification proceeding is to file a motion to transfer in the court where the petition has been filed. See Mingione v. Mingione, 756 So.2d 197 (Fla. 4th DCA 2000) (after husband filed motion for modification of alimony in Broward County, wife, who alleged venue was proper in Pinellas County, filed motion to transfer in Broward County, and not in Pinellas County); Thornburg v. Donovan, 866 So.2d 176 (Fla. 5th DCA 2004) (after husband filed motion to modify custody in Seminole County, wife properly filed motion to transfer venue in that county); Pitt v. Benzenhafer, 843 So.2d 1021 (Fla. 2d DCA 2003) (after husband filed motion to change custody in Lee County, wife correctly filed motion to transfer venue in Lee County, rather than filing motion in Polk County, seeking to prevent Lee County circuit court from hearing the motion); Lottinger-Serraes v. Serraes, 774 So.2d 959 (Fla. 1st DCA 2001) (after husband filed modification motion in Palm Beach County, wife moved in that county to dismiss motion and transfer ease to Alachua County, rather than file motion in Alachua County seeking to prevent Palm Beach County circuit court from hearing husband’s motion).

Our holding is that the determination of whether venue was proper in Miami-Dade County should have been made by the circuit court in that county, not by the circuit court in Broward County.

REVERSED.

KLEIN, J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

While I concur in the substance of the opinion, the matter is moot because the Miami-Dade action has been dismissed.


text:
    Terry BRANNON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1770.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.

      Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The judgment and sentence entered pursuant to the trial court’s order revoking appellant’s probation is affirmed. The written order revoking appellant’s probation, however, does not conform to the oral finding that appellant was in violation of paragraph VI of the affidavit of violation of probation. Therefore, we remand with instructions to enter an amended revocation order correcting this clerical error. See Rodriguez v. State, 777 So.2d 1175 (Fla. 4th DCA 2001).

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Keith CAREY, Appellee.
    No. 4D03-2246.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellant.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Carter v. State, 817 So.2d 992 (Fla. 4th DCA 2002).

GUNTHER, STEVENSON and TAYLOR, JJ., concur.


text:
    Keith Sterling GRUNFELD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2473.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation but remand for the court to enter a written order conforming the sentence to the oral pronouncement. While the court had orally imposed concurrent sentences on both counts at issue, the final judgment only imposed a sentence on count II, specifying that it was to run concurrent with count I. The court did not issue a written judgment as to count I. The state concedes that the court should also issue a judgment on count I in conformance with its oral pronouncement.

Affirmed but remanded to enter judgment and sentence on count I.

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    James A. CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3441.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Carey Haughwout, Public Defender, and Richard B. Greene, 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.

James Campbell was charged with violating Conditions 3 and 5 of his probation. Campbell admitted that he violated Condition 3, and the State agreed not to proceed on Condition 5. The trial court accepted the plea agreement, revoked Campbell’s probation, and imposed the maximum available sentence recognized by the parties. The trial court then entered a written order revoking Campbell’s probation based on a violation of Condition 5.

Both Campbell and the State agree that the revocation and sentence should be affirmed. However, both parties also agree that the written order of revocation should be remanded so that it can be corrected to reflect the trial court’s oral pronouncement accepting Campbell’s plea as to Condition 3, not Condition 5. We agree that the revocation order must be remanded for such correction. See Rodriguez v. State, 777 So.2d 1175, 1175 (Fla. 4th DCA 2001)(case remanded for the trial court to enter a written order of revocation in conformance with the court’s oral pronouncement); Robinson v. State, 763 So.2d 1058, 1059 (Fla. 4th DCA 1999)(“A written revocation order must conform to the trial court’s oral pronouncement.”).

AFFIRMED AND REMANDED for entry of a corrected order of revocation.

GUNTHER, STEVENSON and TAYLOR, JJ., concur.


text:
    Lavoice JOHNSON, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D04-431.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Lavoice Johnson, Riviera Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

POLEN, TAYLOR and HAZOURI, JJ„ concur.


text:
    J.C., a child, Petitioner, v. Janice GARNER, Superintendent, Regional Juvenile Detention Center, Palm Beach County, Respondent.
    No. 4D04-540.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, for respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing and withdraw our previous opinion, issued March 3, 2004. The case was resolved by a plea on March 2, 2004, thereby mooting the issue of the legality of petitioner’s detention.

The petition for writ of habeas corpus is dismissed.

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


text:
    Ray A. KEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1460.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.

      Ray A. Key, Crestview, pro se.
    No appearance required for appellee.
   PER CURIAM.

Ray Key appeals an order dismissing his “Fundamental Motion for Relief from Judgment and Order of the Court.” The motion sought rehearing of an order dismissing a petition for writ of habeas corpus that was filed in the wrong circuit. The circuit court dismissed the motion for relief from judgment, concluding that Key was again seeking relief in the wrong circuit.

The circuit court’s order is affirmed without prejudice to file the petition for writ of habeas corpus in the proper circuit. See Johnson v. Fla. Parole Comm’n, 841 So.2d 615, 617 (Fla. 1st DCA 2008)(stating that mandamus petition challenging presumptive parole release date was “properly filed in the circuit court where the agency was headquartered” and habeas petition challenging parole revocation was “properly filed in the county where petitioner was detained”); Heard v. Fla. Parole Comm’n, 811 So.2d 808, 808-09 (Fla. 1st DCA 2002)(holding that an inmate’s challenge to revocation of early release from prison under an early release program is properly raised in a habeas petition; the petition should be filed in the circuit court having jurisdiction over the correctional facility where inmate is currently housed).

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


text:
    Sharon M. CICHOSKI, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1496.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Sharon M. Cichoski, Quincy, pro se.
    No appearance on behalf of appellee.
   PER CURIAM.

Appellant filed a motion to enforce a plea agreement after being sentenced for violating her probation. In her petition, she claims that she negotiated a sentence with one judge, was given time to accomplish certain tasks, and was then given a different sentence by another judge that was contrary to the plea agreement accepted by the first judge. Appellant appeals the order denying the motion to enforce. We affirm, because the proper method of relief is pursuant to Florida Rule of Criminal Procedure 3.850. See Seabrooks v. State, 817 So.2d 934, 935 (Fla. 4th DCA 2002). Our affirmance is without prejudice to appellant filing a proper motion for postconviction relief pursuant to Rule 3.850.

STONE, WARNER and GROSS, JJ., concur.


author: THOMPSON, J.

text:
    Sonja Diane BOYD n/k/a Sonja Diane Bandolik, Appellant/Cross-Appellee, v. Larry Gene BOYD, Appellee/Cross-Appellant.
    No. 5D02-2885.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.

      John E. Spiller of Boardman & Spiller, P.A., Kissimmee, for Appellant/Cross-Ap-pellee.
    D. Paul McCaskill, Orlando, for Appel-lee/Cross-Appellant.
   THOMPSON, J.

Sonja Boyd, the former wife, appeals an order enforcing a final judgment of dissolution. Although several contested issues were resolved at the hearing, the former wife appeals only the judgment against her for $29,000. The court found that she had surreptitiously taken a $29,000 collection of ivory figurines, part of the inventory of a pawn shop the parties had owned. We affirm.

The parties were married in 1981 and the petition for dissolution was filed in 2000. A handwritten settlement agreement signed in 1999 and a typed settlement agreement dated June 2000 were filed in August 2000. The agreement provided for the distribution of the parties’ assets and was incorporated into the final judgment. Under the agreement, the former husband was to be sole owner of all merchandise owned by Family Pawn, and, unaware that she had taken the merchandise from the warehouse, he agreed that he already had possession of the property. In November 2001, the former husband moved for contempt and enforcement of the final judgment, alleging that the former wife had taken the merchandise and probably sold it. The former husband testified that the parties’ daughter eventually told him that the former wife had taken the ivory. The former wife admitted taking the ivory, but claimed that she had taken it on impulse because she had no money and needed to make a house payment. Further, she claimed she promptly returned it to the exact place from which she had taken it.

After hearing the testimony of the former husband, the former wife, the maternal grandmother, and the parties’ daughter, the court found that the former wife had been having serious financial problems at the time she broke into the warehouse. The court pointed out that she admitted taking the ivory and had had it in her possession the last time the ivory was seen. There was evidence that the ivory was packed and sent to California. The former husband’s employees discovered the break-in, which had occurred on a Saturday and/or a Sunday, on the following Monday and promptly changed the locks. The former wife claimed to have returned the items to a College Park facility, but the grandmother said they returned the items to a certain Kissimmee facility. More important, the court found, the former wife could not have gotten access to the College Park facility because the locks had been changed and upgraded. The court therefore did not believe she returned the ivory and believed she converted it for her own purposes. The court found that the best and only evidence of the fair market value of the collection was $29,766, and accepted that number.

First, the former wife argues that the final judgment of dissolution settled for all time the distribution of property to the parties and that the doctrine of res judicata barred the former husband’s claim. Res judicata is an affirmative defense, see Scovell v. Delco Oil Co., 798 So.2d 844 (Fla. 5th DCA 2001), and affirmative defenses are waived if they are not pleaded, St. Paul Mercury Insurance Co. v. Coucher, 837 So.2d 483 (Fla. 5th DCA 2002). See also Lee v. City of Jacksonville, 793 So.2d 62 (Fla. 1st DCA 2001) (“Since the function of this court is to review possible error committed by the trial court, absent jurisdictional or fundamental error, a legal argument must be raised initially in the lower court before it can be considered on appeal”). The former wife waived this defense by failing to raise it.

The former wife also claims that the order should be reversed because the court’s finding that the ivory was worth $29,776 was not supported by competent evidence. First, the former wife points out that in the former husband’s financial affidavit he claimed that Family Pawn was worth $20,000, yet he claimed at trial that the ivory alone was worth $29,776. Here, the former wife is comparing apples and oranges if the $20,000 stated in the affidavit pertained to the amount paid for the assets of Family Pawn. The former husband testified that he purchased the items for far less than the fair market value, and the former wife testified that the former husband was a “master negotiator.”

The former wife also points to the somewhat confusing testimony of the former husband, who referred at different points to 352, 354, and, 356 pieces of ivory. Whether the number of pieces taken was 352, 354, or 356, the numbers do not result in $29,776 when multiplied by $48.68, the minimum value the former husband placed on each, piece. The former husband’s counsel had prepared notebooks for the court and opposing counsel and referred to a tab in the notebook which showed that the fair market value of the ivory was $29,766. Both the former wife and her counsel interrupted when the former husband began to take testimony from the daughter about pictures of the collection, and the former wife’s counsel told the court that there was no need to “go through all of that” because the wife’s position was that she put the ivory back where she got it from. This, along with the fact that the notebook apparently set out the former husband’s claim, and along with the wife’s statement that she did not know what she took, apparently lulled the former husband and his counsel into thinking that the exact number of pieces taken was not an issue.

We conclude that the former wife waived her contention as to the sufficiency of the evidence by failing to move for an involuntary dismissal of the former husband’s claim. See Tillman v. Baskin, 260 So.2d 509 (Fla.1972) (motion for involuntary dismissal is the proper method by which a defendant may obtain a verdict in his favor following the presentation of the plaintiffs case); Stone v. Stone, 346 So.2d 1242 (Fla. 2d DCA 1977) (“In the past we have repeatedly reversed awards of attorney’s fees not predicated upon expert evidence as to reasonableness.... However, in view of appellant’s abandonment of any argument as to the reasonableness of the attorney’s fees ... the judgment of the trial court is affirmed”). If the former wife had made the point below that the evidence was insufficient to support a judgment against her, the former husband probably would have been allowed to reopen his case and testify more coherently. We conclude that there was no preserved error in this regard.

The former wife also contends that the trial court fundamentally erred in ordering her to pay for the full value of the ivory because paragraph 46 of the marital settlement agreement provides for a 50-50 division of undisclosed marital assets: “If it is later discovered that either party has possession or control of, or has disposed of by gift or conveyance, an undisclosed beneficial interest in any property owned by the parties ... such party, upon demand, shall transfer ... to the other party ... one-half interest therein, or shall pay the other party a sum equal to one-half the fair market value of such interest ...” There was no “undisclosed beneficial interest” in this case. The assets of Family Pawn were known to the parties, but what was undisclosed was the location of the ivory. Accordingly, this paragraph of the agreement does not apply to the ivory. Second, this issue was not raised below and is therefore not preserved. Similarly unpreserved and meritless is the former wife’s contention that the award to the former husband upsets the equitable distribution scheme. It was the former wife who upset the distribution scheme by taking these assets, but then agreeing in the settlement agreement that the former husband had possession of them.

Finally, the former wife claims that the court fundamentally erred in ordering her to pay the former husband for the ivory collection because she used the proceeds of the ivory sale to meet her essential needs. She points to her testimony that she was in desperate straits when she took the ivory. Indeed, the court found that she was having serious financial problems when she entered the warehouse. Here, essentially, the former wife is claiming that the proceedings below were so defective, so fundamentally unfair, that the error she asserts can be asserted for the first time on appeal. Compare Kilgore v. State, 688 So.2d 895, 898 (Fla.1996). We do not agree. If this issue were so fundamentally important the former wife should have expressly told the court below that although she took the ivory collection, she returned it, but that if the court did not believe she returned it, she spent the proceeds of its sale on essential needs. Accordingly, this issue is without merit.

AFFIRMED.

PETERSON and TORPY, JJ., concur.

      . The former husband also referred to 150 pieces, but he seemed to have been saying that there were 150 pieces that he could not account for in addition to the ivory he was claiming the former wife took.


author: PER CURIAM. PADOVANO, J., WEBSTER, J.,

text:
    Lori F. HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0946.
    District Court of Appeal of Florida, First District.
    May 28, 2004.
    Nancy A. Daniels, Public Defender; Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The evidence did not establish that appellant was guilty of a willful and substantial violation of the terms of her probation. See Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996). Appellant’s sentence and the order revoking her probation are reversed and the case is remanded with directions that probation be reinstated.

Reversed and remanded.

BENTON, J., concurs, PADOVANO, J., concurs with opinion, and WEBSTER, J., dissents with opinion.

PADOVANO, J.,

concurring.

I believe that the probation revocation order must be reversed, because I am unable to find any evidence in the record to support the state’s charge that the defendant moved from her residence without permission. As I read the record, the most the state proved was that a probation officer assigned to the case during a part of the defendant’s probationary term had no knowledge that permission may have been given.

The defendant testified that she was evicted from her residence in October 2002, and that she called the probation office when she received the eviction notice. She said that she spoke with the officer of the day and was told that the Department of Corrections was in the process of assigning a new probation officer to her case. The defendant further testified that she had advised the Department of several previous moves by the same method (calling the office) and that the officers never objected as long as she was not moving out of Pensacola.

I agree, as the dissent points out, that the trial judge was not required to believe the defendant’s testimony. The problem with the state’s argument in this case, however, is that there is no evidence that the defendant did not get permission to move. The probation officer who testified at the hearing was not assigned to the defendant’s case until November 2002. She testified that she did not give the defendant permission to move, but this testimony has little force, given the fact that she wasn’t even supervising the defendant at the time of the move.

Perhaps if there had been some evidence that the Department has a policy of maintaining records of calls like the one the defendant says she made, it would be easier .to prove the charge. In that event, the absence of a record would have some probative value. But there was no testimony about any policy of recording calls like this. Likewise the charge would have been easier to prove if the probation order required a defendant to obtain written permission to move. If that were the case, a charge that a probationer did not have permission to move could be proven by the absence of a written record of the permission. But that is not the case; the order does not require a probationer to obtain permission in writing.

We are left then with the probation officer’s testimony that she did not have personal knowledge of the fact that the defendant may have obtained permission to move. This testimony does not prove the defendant failed to obtain permission. The burden of proof in a probation violation hearing is very low, but there must be at least some evidence to support the charge. In this case, there is not.

WEBSTER, J.,

dissenting.

In my opinion, the probation officer’s testimony that appellant changed her residence without permission despite the fact that she knew she was required to obtain permission before moving was sufficient to support the revocation of probation. The issue of willfulness was one of fact for the trial court. The trial court obviously did not believe the testimony offered by appellant in support of her position that the violation was not willful, as it was entitled to do. See, e.g., Riggins v. State, 830 So.2d 920, 921 (Fla. 4th DCA 2002) (stating that the trial court is in the best position to evaluate the credibility of witnesses and the appellate court must give “great deference” to trial court findings). It is not our job to retry cases on appeal, substituting our judgment for that of the trial court merely because we disagree with the trial court’s resolution. See Hemingway v. State, 762 So.2d 957, 959 (Fla. 4th DCA 2000). Accordingly, I dissent.


author: KAHN, J.

text:
    Diane Mary BOCHER and Stephanie Dawn McMurray, Appellants, v. Jeffrey Douglas GLASS and Ellen C. Glass, as co-personal representatives of the estate of Jeffrey Douglas Glass, Jr., deceased, Appellees.
    No. 1D02-4105.
    District Court of Appeal of Florida, First District.
    May 28, 2004.
    J. Stephen O’Hara, Jr., and Diane G. Cassaro, of O’Hara, Spradley & Waters, Jacksonville, for Appellants.
    Fred M. Abbott and David M. Wiesen-feld of Abbott & Wiesenfeld, P.A., Jacksonville, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellees.
   KAHN, J.

Appellants, Diane Bocher and Stephanie McMurray, appeal a $3 million jury award to appellees, Jeffrey and Ellen Glass, personal representatives of the estate of their deceased son, Jeffrey Glass, Jr. Appellants claim that the trial court erred in denying several motions for mistrial and a motion for a new trial based upon improper, and objected to, comments by the plaintiffs’ attorney throughout the course of the trial below. Our review of the record shows that the plaintiffs’ attorney conducted himself in a manner designed to inflame the emotions of the jury rather than prompt a “logical analysis of the evidence in light of the applicable law.” See Murphy v. Int’l Robotic Systems, 766 So.2d 1010, 1028 (Fla.2000) (quoting Bertolotti v. State, 476 So.2d 130 (Fla.1985)). Although counsel’s improper comments would not necessarily require reversal if considered in isolation, we find the cumulative effect of the comments sufficient to have deprived appellants of a fair trial. See Muhammad v. Toys “R” Us, Inc., 668 So.2d 254, 259 (Fla. 1st DCA 1996) (holding that the “collective import of counsel’s personal injections, and irrelevant and inflammatory remarks, was so extensive as to have prejudicially pervaded the entire trial”); see also F.J.W. Enterprises, Inc. v. Johnson, 746 So.2d 1145, 1147 (Fla. 5th DCA 1999); Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1158 (Fla. 5th DCA 1994). Accordingly, we reverse and remand for a new trial. We find no reversible error in appellant’s other point on appeal concerning admissibility of certain evidence proffered by the defense at trial.

This case arose out of a motor vehicle accident involving Jeffrey Glass, Jr. and Stephanie McMurray. Nineteen-year old Jeffrey died when his motorcycle crashed into the truck driven by Ms. McMurray. The issues for the jury’s consideration should have been limited to the respective degrees of negligence of Jeffrey and Ms. McMurray and the extent of damages to be awarded to Jeffrey’s parents and his estate. Plaintiffs’ trial counsel, Mr. Abbott, however, injected a continuous stream of personal commentary from voir dire through to closing arguments rather than focusing on the discrete issues and the evidence.

During voir dire, plaintiffs’ counsel made comments that could have only been designed to ingratiate himself to the potential jurors and focus their attention on irrelevant matters. See Kelley v. Mutnich, 481 So.2d 999, 1000 (Fla. 4th DCA 1986) (“[A]ttempts to curry favor with members of the jury are unprofessional and should be met by rebuke.”). Plaintiffs’ counsel identified himself as having a child apparently near the age of the decedent. The appellants unsuccessfully objected and moved for a mistrial. Counsel then segued to a series of comments implying that appellants would unfairly ask the jury to second guess the decedent’s actions while, at the same time, telling the jury that he knew all about “armchair” quarterbacks because he used to be a professional football player. After the trial court sustained an objection to counsel’s statement of personal belief regarding the unfairness of armchair quarterbacking, counsel went on to tell the jury that, “I’m pretty much a straight ahead guy.” Once again, the trial court sustained appellants’ objections. Counsel moved on to a series of questions relating to the jurors’ views on owning a confederate flag. He told the venire that the decedent had owned one but was not a racist and that he had black friends and white friends. Upon objection, the trial court instructed plaintiffs’ counsel to stop testifying. Cf. Rockman v. Barnes, 672 So.2d 890, 891 (Fla. 1st DCA 1996) (“We definitely do not condone the injection of the personal opinion of plaintiffs counsel into argument before the jury.”). Finally, counsel told the jury, “I want to go back into the Florida Times Union. About every thirty days they publish an article in Section B in the editorial section that has to do with frivolous lawsuits.” Appellants objected and moved for a mistrial on the basis that plaintiffs’ counsel was once again testifying to the jury. The trial court sustained the objection but denied the mistrial.

During the trial, appellants’ expert witness, Michael Dobbs, volunteered that he was going to donate his fee to charity. Plaintiffs’ counsel noted that this was inconsistent with what Dobbs had stated during his deposition. Dobbs stated that he had had a change of heart. Plaintiffs’ counsel replied inappropriately, “I bet you did.” See R. Regulating Fla. Bar 4-3.4(e) (barring a lawyer from stating a personal opinion as to the credibility of a witness). The trial court sustained appellants’ objection and gave a curative instruction.

During closing argument, plaintiffs’ counsel told the jury that if a “magic button” were placed in front of Mrs. Williams, a juror, and $6 million were placed in front of Mr. Brooks, another juror, the plaintiffs would walk past the money and press the button to bring their son back. Appellants’ counsel objected, arguing this constituted an impermissible “golden rule” argument. See Cummins Alabama, Inc. v. Allbritten, 548 So.2d 258, 263 (Fla. 1st DCA 1989) (observing that a “golden rule” argument requires the jury “to put themselves in the shoes of one of the parties, and is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence”). The trial court overruled the objection.

Although we recognize that the “magic button” argument did not explicitly ask the jurors how much they would want to receive had their own child died in an accident, we find it was nonetheless improper. The only conceivable purpose behind counsel’s argument was to suggest that jurors imagine themselves in the place of Jeffrey’s parents. Counsel utilized jurors’ actual names, and even set up the jury box as a prop for the “magic button” and the $6 million. “Golden rule” arguments are improper because they depend upon inflaming the passions of the jury and inducing fear and self interest. See Tremblay v. Santa Rosa County, 688 So.2d 985, 987 (Fla. 1st DCA 1997). The “magic button” argument had the same effect. If jurors are to remain fair decision-makers, the trial court must guard against a deliberate act of counsel that serves to put the jury center stage in the drama that should be the trial.

Plaintiffs’ counsel next moved into a “value of human life” argument. See Wilbur v. Hightower, 778 So.2d 381, 383 (Fla. 4th DCA 2001) (defining a “value of human life” argument as one which asks the jury to “place a monetary value on the life of the decedent”). He began, “I want to talk a little about money in our society. Our society values paint on a canvas to the tune of $82.5 million.” At that point, appellants objected and the trial court sustained the objection, warning plaintiffs’ counsel to abandon the argument.

Finally, during rebuttal, plaintiffs’ counsel attempted to relate a story about him and his grandfather walking in the Florida woods when he was a child. Appellants objected and the trial court sustained the objection. See Muhammad, 668 So.2d at 258 (noting that “irrelevant familial rhetoric must not be condoned”). Counsel then began telling a story about a hypothetical young boy and his grandfather walking through the woods. Appellants once again objected, and once again the trial court sustained the objection. Finally, plaintiffs’ counsel got to the point and advised the jury not to be distracted by “rabbit trails” and to focus on the facts of the case.

After the jury returned a verdict in favor of the plaintiffs, appellants moved for a new trial citing the conduct of plaintiffs’ counsel. The trial court denied the motion. This court reviews the trial court’s denial of appellants’ motion for new trial under an abuse of discretion standard. See Roach v. CSX Transp., Inc., 598 So.2d 246, 249 (Fla. 1st DCA 1992). Although the trial court’s ruling is entitled to substantial deference, there is a point where the “totality of all errors and improprieties” are “pervasive enough to raise doubts as to the overall fairness of the trial court proceedings.” See Manhardt v. Tamton, 882 So.2d 129, 133 (Fla. 2d DCA 2002). Our review of the foregoing incidents convinces us that although plaintiffs’ experienced trial counsel understood the bounds of appropriate conduct, he exceeded those bounds repeatedly.

In applying the abuse of discretion standard, we have considered the shift in dynamics occasioned by the supreme court’s decision in Murphy v. International Robotic Systems. There, the court considered unobjected-to comments during closing arguments and the standard for granting a new trial. See Murphy, 766 So.2d at 1028-31. The court held:

... before a complaining party may receive a new trial based on unobjected-to closing argument, the party must establish that the argument being challenged was improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial. Should the trial court find that these criteria have been established, the court must enter an order granting a new trial specifically identifying both the improper arguments of counsel and the actions of the jury resulting from those arguments. Finally, an appellate court must employ an abuse of discretion standard of review when considering the correctness of the trial court’s grant or denial of a new trial based on unobjected-to closing argument. Although we have not absolutely “closed the door” on appellate review of unpreserved challenges to closing argument, we have come as close to doing so as we believe consistent with notions of due process which deserve public trust in the judicial system.

Id. at 1031.

Murphy’s lesson to trial counsel is clear — a remedy will almost always be tied to contemporaneous objection. Here, counsel for appellants reacted appropriately to Murphy by imposing numerous objections. Although the trial court sustained most of these objections, nothing deterred appellees’ counsel. By scrupulously following the law after Murphy, appellants’ counsel risked alienating the jury with repeated objections. Jurors cannot be expected to understand the basis of counsel’s repeated objections. All that is apparent to jurors placed in this position is that frequent objections and sidebar conferences prolong their service, and perhaps limit the information available to the jury. Thus, counsel’s repeated objections to the same type of behavior may well lead the jury to infer that one side of the case is trying to hide or disguise matters that would be useful to the jury.

Perhaps if counsel were given free rein, he or she could build exceptional rapport with jurors, and they, in turn, would find a trial far more entertaining, far more like the television version of the lawyer’s trade. That, however, is not the function of a jury trial. See Muhammad, 668 So.2d at 258 (“While attorneys are given broad latitude in closing arguments, remarks must be confined to the evidence and to the issues and inferences that can be drawn from the evidence.”). To this end, jurors in every civil trial are told by the judge:

In reaching your verdict[s], you are not to be swayed from the performance of your duty by prejudice, sympathy or any other sentiment for or against any party. Your verdict[s] must be based on the evidence that has been received and the law on which I have instructed you.”

Fla. Std. Jury Instr. (Civ.) 7.1. If we are interested in the integrity of the process by which a jury determines disputed facts, including damages in personal injury cases, we must not allow this instruction to become mere window dressing for a procedure that, without proper demarcation by a trial judge, can be steered all too easily into a morass of prejudice, sympathy, bias, and emotion.

The burden upon the complaining party is high. Nevertheless, and particularly in light of counsel’s duties after the Murphy decision, we find that appellants have carried this burden.

REVERSED and REMANDED for a new trial.

WEBSTER and LEWIS, JJ., concur.


text:
    Thomas Luke PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5084.
    District Court of Appeal of Florida, First District.
    May 28, 2004.

      Nancy A. Daniels, Public Defender; Phil Patterson, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Appellant, Thomas Luke Phillips, appeals his conviction by a jury of the two following offenses: (1) aggravated battery with a deadly weapon causing great bodily injury, disability and disfigurement to Johnnie Atkinson (Atkinson); and (2) aggravated battery with a deadly weapon against Josh Burger (Josh). Finding no reversible error, we affirm.

Appellant contends that the trial court erred in refusing to give appellant’s requested jury instructions on (1) the justifiable use of force in self defense, see Fla. Std. Jury Instr. (Crim.) 3.04(a), Justifiable Use of Non-deadly Force; and (2) the category 2 permissive lesser-included offense of improper exhibition of a deadly weapon, see sections 790.10 and 784.045(l)(a)(2), Fla. Stat (2002). Neither of these contentions has merit.

All of the state’s evidence established that in the course of a “party” where alcohol was being consumed, appellant intervened in a physical altercation between Josh (Atkinson’s son), and Dennis Phillips (appellant’s son). Appellant struck Josh and in turn appellant was knocked to the ground by him. After the melee had ended with Josh being restrained by Atkinson and another person, appellant produced a pocket knife and stabbed Atkinson, wounding him severely, and also cut Josh. Neither Atkinson nor Josh were armed with any weapon.

Appellant testified that he saw Josh and another person attacking his son Dennis; that he went to “get them off’ his son, when Josh attacked him and stabbed him in the neck; and that he (appellant) fell to the ground unconscious. He testified that he did not remember anything after he got up, and did not remember seeing Atkinson. Testimony from witnesses at the scene established that appellant’s stabbing spree occurred after he “got up” from being knocked to the ground by Josh, after Josh had been restrained, and after the physical altercation had ended.

On this record, we are compelled to agree with the trial court’s assessment of the evidence in his ruling on the defense request for the self defense instruction.

THE COURT: I know the law is very clear that if there is any suggestion of self-defense, that I’ve got to give that. But I’ll tell you, I find no evidence presented to this Court where any reasonable person could indicate or believe that there was any self-defense available ....

It is apparent that since appellant does not even acknowledge that he in fact wielded the knife that seriously injured Atkinson and cut Josh, and there is no other evidence from which a jury could find that he acted in self-defense, the court was correct in refusing the requested instruction. As in Gaffney v. State, 742 So.2d 358 (Fla. 2nd DCA 1999), there is no evidence that appellant could have reasonably believed that his conduct was necessary to defend himself from the imminent use of unlawful force. If his testimony is believed, he was on the ground unconscious after being struck by Josh, and did not stab Atkinson or Josh. Inconsistent defenses are allowable in criminal cases where the proof of one does not necessarily disprove the other. See Moyer v. State, 558 So.2d 1045 (Fla. 5th DCA 1990); Keyes v. State, 804 So.2d 373 (Fla. 4th DCA 2001). The evidence that the fighting had stopped before appellant’s knife attack on the victims, coupled with appellant’s testimony that he did not remember what happened precludes the defense that appellant acted in self-defense.

As for the second issue — the court’s refusal to instruct on the lesser-included offense of improper exhibition of a deadly weapon — we find that the court did not err. The Florida Supreme Court made it abundantly clear in State v. Von Deck, 607 So.2d 1388 (Fla.1992), that “an instruction cannot be given on a permissive lesser included offense unless both the accusatory pleading and the evidence support the commission of that offense.” Id. at 1389 (citing Brown v. State, 206 So.2d 377, 383 (Fla.1968)). The Von Deck court also reminded us: “Florida law is well settled that the elements of an offense cannot be established by mere inference.” Id. at 1388 (citing State v. Dye, 346 So.2d 538, 541 (Fla.1977)). Here, the charging information is devoid of any allegation that appellant exhibited his knife “in a rude, careless, angry or threatening manner,” an essential element of the offense under section 790.10, Florida Statutes.

Our decisions since Von Deck have consistently adhered to the rulings in that case. See, e.g., Andrews v. State, 679 So.2d 859 (Fla. 1st DCA 1996); Farley v. State, 740 So.2d 5 (Fla. 1st DCA 1999). We note that our decision in Smith v. State, 435 So.2d 961 (Fla. 1st DCA 1983), issued prior to Von Deck, did not conform to the holdings of Von Deck or our later cases cited above, but has not heretofore been expressly overruled. In Smith, we acknowledged the necessity of determining whether the information charges all the essential elements of a lesser-included offense, and whether the proof supports the allegations, before approving an instruction on the lesser-included offense. Smith, 435 So.2d at 961. However, we approved an instruction on the improper exhibition of a weapon based upon our conclusion that because the information charged that Smith committed a battery by “shooting at” the victim, it necessarily alleged “exhibition.” Id. at 962. This conclusion was supported by the further reasoning that “firing a bullet makes its presence and character known to all.” Id. at 962. Such an attempt to supply a necessary allegation by inference from other wording of the charging information is, of course, condemned by Von Deck, as we have expressly recognized in Andrews and Farley.

Accordingly, the judgments and sentences on appeal are affirmed.

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

      . On rebuttal, the state produced medical records indicating that when taken to a hospital after the episode appellant denied losing consciousness, and denied any injury except to the left side of his face and neck. There was no record regarding the nature of appellant's injuries, and nothing to indicate whether any injury was from a stabbing. Appellant’s explanation to medical staff as to the causation of his injuries was that he had fallen down the stairs.

      . We note that notwithstanding the teachings of Von Deck, as outlined in our above opinion, the state made an argument in Farley supporting the giving of the instruction on improper exhibition of a deadly weapon on much the same reasoning as applied by the court in Smith. We deem it appropriate to avoid further confusion on this issue by giving Smith a belated, if not decent, burial.


text:
    Jason DOSTIE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1270.
    District Court of Appeal of Florida, Second District.
    June 2, 2004.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Jason Dostie, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm Mr. Dostie’s judgments and the sentences imposed on August 27, 2003.

ALTENBERND, C.J., and NORTHCUTT and KELLY, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Raymond BRANCH, Petitioner, v. STATE of Florida; The Florida Civil Commitment Center; Robert Broidy, Director, Florida Civil Commitment Center; Department of Children and Family Services; and Jerry Regier, Secretary, Department of Children and Family Services, Respondents.
    No. 2D03-1617.
    District Court of Appeal of Florida, Second District.
    June 2, 2004.
    Julianne M. Holt, Public Defender, and Jeanine Cohen, Assistant Public Defender, Tampa, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Janet A. McDonald, Assistant Attorney General, Tampa, for Respondents.
   SILBERMAN, Judge.

Raymond Branch, a committed person under part V of chapter 394, Florida Statutes (2000), entitléd “Involuntary Civil Commitment of Sexually Violent Predators” (the Act), seeks a writ of habeas corpus ordering his immediate release from confinement. Alternatively, he seeks a writ of mandamus ordering the trial court to comply with section 394.918(3) of the Act.

This case is governed by our holding in Allen v. State, 873 So.2d 576 (Fla. 2d DCA 2004). Accordingly, we deny the petition for writ of habeas corpus and grant the petition for writ of mandamus. We direct the circuit court to hold a limited probable cause hearing pursuant to section 394.918(3), with counsel representing Mr. Branch as mandated, unless Mr. Branch has been afforded such a hearing in the last calendar year.

Petition for writ of habeas corpus denied; petition for writ of mandamus granted.

SALCINES and STRINGER, JR, Concur.