author: ERVIN, J.

text:
    Scott DWELLE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 1D02-1683.
    District Court of Appeal of Florida, First District.
    March 13, 2003.

      Virginia M. Buchanan of Levin, Papan-tonio, Thomas, Mitchell, Ecshner & Proctor, P.A., and Louis K Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, for Appellant.
    Michael D. Hook of Hook, Bolton, Mitchell, Kirkland & McGhee, Pensacola, for Appellee.
   ERVIN, J.

This is an appeal from a final declaratory judgment determining that appellant, Scott Dwelle, was not a resident relative of his parents’ household for the purpose of his entitlement to uninsured motorist (UM) benefits. Because we conclude he was a resident relative, we reverse and remand with directions that judgment be entered for appellant.

This appeal arises from a suit filed by appellee, State Farm Mutual Insurance Company, relating to UM coverage extended by two contracts of automobile liability insurance that State Farm had provided to Dwelle’s parents. These two contracts were in force on September 23, 2000, when Dwelle was injured in a collision with another vehicle driven by an intoxicated uninsured motorist. The accident occurred approximately six hours after Dwelle’s marriage to Lori Dwelle, who was killed in the accident, while the two were en route to their honeymoon destination. After Dwelle had made demand for UM benefits provided under his parents’ policies, State Farm sought a declaratory judgment declaring Dwelle was not a “relative” of his parents’ household as defined in the policies, because at the time of the accident he was not “a person related to [them] ... who resided primarily with [them].” Both Dwelle and State Farm filed motions for summary judgment. In granting summary judgment in favor of State Farm, the trial court agreed with its primary argument that Dwelle did not meet the policies’ definition of relative because he was a resident of his own separate household, as shown by his sworn statement of January 11, 2001, disclosing that upon his return from his honeymoon, he intended to share an apartment in Alabama leased by his wife.

Because we are reviewing the propriety of the grant of summary judgment, our review standard is de novo. Therefore, we are not obliged to defer to the trial court’s findings in that we apply the same standard as that imposed by the trial court, meaning that summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

In entering judgment for State Farm, we conclude that the lower court too narrowly focused on Dwelle’s statement of where he intended to reside in the future, and not upon other salient facts. All of the relevant facts must be taken into consideration for the purpose of establishing the following three aspects of household or residency under an insurance policy: (1) close ties of kinship, (2) fixed dwelling unit, and (3) enjoyment of all the living facilities. Row v. United Servs. Auto. Ass’n, 474 So.2d 348, 349 (Fla. 1st DCA 1985); Gen. Guar. Ins. Co. v. Broxsie, 239 So.2d 595, 597 (Fla. 1st DCA 1970).

Applying these three elements to the facts at bar, it is obvious that the first is easily established. Appellant is the biological son of the named insureds in the two policies. Likewise, the third element is indisputably borne out in that Dwelle at all times maintained a key to his parents’ residence and enjoyed the use of his room, as well as the entire house and all the utilities. He was also able to drive any of the family’s four vehicles. It is the second element that is in question in this case, because Dwelle stayed at places other than his parents’ home from time to time.

The determination of whether the second aspect has been satisfied turns on the application of two alternative theories: (1) that Dwelle was a relative living primarily with his insured parents at the time of the accident, and (2) that he maintained his residency at his parents’ household as a dependent child living away from home while attending school. In our judgment, either of these two theories, when applied to the pertinent facts, adequately demonstrate that Dwelle, at the time of the accident, maintained his residency at his parents’ fixed dwelling.

Dwelle testified that he had grown up in his parents’ home in Pensacola. After graduating from high school, he attended Pensacola Junior College for two years while continuing to live at home. Thereafter, he attended the University of South Alabama and lived on campus in a dormitory. At the time of his January 2001 statement, he had been continuously enrolled at South Alabama and expected to graduate in May 2001. In May 2000, before the accident, he was required to move out of the dormitory due to renovations, so he returned home and lived with his parents, driving back and forth from Pensacola to Mobile for part-time schooling and work during the summer of 2000. Most of his personal belongings were in his parents’ home and remained there at the time of the accident. Dwelle’s future spouse, Lori, also moved from the dormitory in May 2000, and took out a one-year lease on an apartment in nearby Daphne, Alabama, where she intended to reside while working in Theodore, Alabama, and finishing graduate school.

After Lori obtained the apartment, Dwelle stayed there periodically, but also spent several nights a week and weekends at his parents’ home. Two-and-a-half weeks before the September 23 wedding, Dwelle procured a part-time job with the City of Mobile, giving Pensacola as his permanent address. He testified that he planned to move into the apartment in Daphne after the honeymoon. Nevertheless, because the couple had no fixed plan of where to live, Dwelle believed they would probably return to Pensacola, where both had been raised. Living with either set of parents was an option open to them. Dwelle testified that he was still financially dependent on his parents at the time of the accident, as was Lori on hers. His parents paid the expenses for his school, dormitory, food, and car, and they would continue to pay his expenses after the marriage until the couple could become financially independent. He worked only 20 hours a week and “made hardly nothing.” He was listed as a dependent on his parents’ tax return, used his parents’ home as his legal address, was registered to vote in Florida, and was a member of a church in Pensacola.

In our judgment, the second criterion— that Dwelle was living primarily in his insured parents’ fixed dwelling — has clearly been met. Despite what Dwelle may have indicated to be his intention of where he would reside in the future, the fact remains that he had not commenced living in the apartment on a permanent basis at the time of the tragic accident. Nor had he abandoned his residency at his parents’ home. Compare these facts with those in Seitlin & Co. v. Phoenix Insurance Co., 650 So.2d 624, 626 (Fla. 3d DCA 1994), wherein the son intended to obtain employment and set up a household entirely independent from his parents upon the completion of his studies, but the court found his “future intention did not detract from the fact that, at the time of the tort incident, Schandler [the son] was properly viewed as being resident in the parents’ household.”

The alternative second theory, i.e., the maintenance of Dwelle’s status as a dependent child while attending school away from home, further reinforces our conclusion that Dwelle remained a relative in his parents’ home as of the time of the accident. As stated, Dwelle clearly established his continued financial dependence on his parents even after he had moved from the campus of South Alabama and obtained part-time employment with the City of Mobile, which was only temporary, in that he intended to obtain his undergraduate degree the following year.

In our judgment, the above facts are quite similar to those in General Guaranty Insurance Co. v. Broxsie, 239 So.2d 595 (Fla. 1st DCA 1970), disclosing that a minor had resided with her aunt for several years in Monticello, Florida, and thereafter rented a room in nearby Thomasville, Georgia, to attend vocational school. She graduated from school two days before the accident that was the subject of the automobile liability insurance claim. The insurer contended that the niece was not insured under the aunt’s policy, because she was not a resident of her aunt’s household. The trial court disagreed, and this court affirmed the finding that she was insured under the policy. In so doing, both the trial and appellate courts found the three elements of residency established, ie., close ties of kinship, fixed dwelling, and enjoyment of the entire living facility. Although this court noted that the niece would be accepting employment at a hospital in Thomasville following her graduation, it nonetheless concluded that it “would not be until after plaintiff entered upon the full-time duties of her new employment at the hospital in Thom-asville with the intention of establishing a new permanent residence there that she will be considered to have abandoned her prior residence in the home of her aunt in Monticello.” Id. at 598.

We are not unaware that in both Brox-sie and Seitlin, the appellate courts affirmed the trial courts’ findings of residency, while we have stated our intention to reverse the lower court’s finding of non-residency. As applied to the issue before us, this is an immaterial distinction. A similar issue was raised in Becklin v. Travelers Indemnity Co., 263 So.2d 629 (Fla. 1st DCA 1972), in which the facts disclose that while an insured mother’s married son was between semesters at different universities, a fire destroyed certain personal property belonging to him during a visit at his mother-in-law’s home. He sought coverage under his mother’s homeowners’ policy under the theory that he was a resident of his mother’s household. In reversing the trial court’s contrary ruling, this court found that the son had demonstrated the three elements of residency. The evidence showed that everyone, including his wife, considered him a member of his mother’s household, because, among other things, he used his mother’s address for all his legal documents; he kept his personal belongings, maintained a phone, and received his mail there; and he was solely supported by his parents and never held a job. In reversing the trial court’s judgment for the insurer, this court stated:

We are not unmindful of the rule that an appellate court will not reweigh the evidence and substitute its findings of fact for the findings of the trier of fact in the lower court. However, where the trial court has misconceived the legal effect of the facts, the appellate court is required to take cognizance thereof.

Becklin, 263 So.2d at 630 (citations omitted). See also Row v. United Servs. Auto. Ass’n, 474 So.2d 348, 349 (Fla. 1st DCA 1985); Trezza v. State Farm Mut. Auto. Ins. Co., 519 So.2d 649, 650 (Fla. 2d DCA 1988) (both stating that residency is a mixed question of law and fact that must be determined based upon the facts in each case, but that when the facts are undisputed, the question of whether the facts fit within a policy definition is a question of law that may be decided on appellate review).

We have considered the case that State Farm primarily relies- on, Whitten v. Allstate Insurance Co., 476 So.2d 794 (Fla. 1st DCA 1985), which, in affirming summary judgment for the insurer, determined that there was a complete lack of evidence that the insureds’ injured son had any intention to live with them as of the time of his accident. The facts in Whitten are clearly distinguishable from those before us in that Whitten had maintained employment and a residence with his wife for a number of years in another state, he returned to his parents’ home in Florida after he had been laid off from work and paid them for room and board during the temporary time he remained in their home, and it was while living with them that he suffered his injuries. Unlike the present case, Whitten was not a student, and there is no suggestion in the opinion that he was dependent upon his parents for his support.

We therefore conclude, after applying the de novo review standard to the issue before us, that the lower court erroneously relied on Dwelle’s statement of future residency intent in deciding he was not entitled to UM benefits under his parents’ policies. The facts pertinent to the policy definition of relative living primarily with the insureds clearly establish appellant’s status as such.

The declaratory judgment entered for the insurer is REVERSED and the cause is REMANDED with directions for judgment to be entered for appellant.

WOLF and VAN NORTWICK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark Randolph LANIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-500.
    District Court of Appeal of Florida, First District.
    March 13, 2003.
    Christopher J. Anderson, Attorney, Atlantic Beach, for Appellant.
    Charlie Crist, Attorney General, Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Lawson v. State, 812 So.2d 518 (Fla. 1st DCA), review denied, 829 So.2d 918 (Fla.2002); Rivera v. State, 806 So.2d 631 (Fla. 1st DCA), cause dismissed, No. SC02-1370, — So.2d - (Fla. June 21, 2002). See also Trotter v. State, 825 So.2d 362 (Fla.2002).

ERVIN, WOLF and VAN NORTWICK, JJ., Concur.


text:
    Jason Scott MURRAY and Glenn Murray, Appellants, v. Jeffrey Wade HILL, Appellee.
    No. 1D02-1396.
    District Court of Appeal of Florida, First District.
    March 13, 2003.
    Dwane D. Tyson of William R. Swain & Associates, Jacksonville, for Appellants.
    W. Alan Winter of The Winter Law Firm, Neptune Beach, for Appellee.
   PER CURIAM.

Jason Scott Murray and Glenn Murray challenge a final order which denied their motion for rehearing and their amended motion to tax costs and attorney’s fees. The record on appeal reflects that appellants filed their motion to tax costs and attorney’s fees within thirty days of the final judgment. Thus, their motion was timely under the rules 1.442 and 1.525, Florida Rules of Procedure (2001), the governing rules. See Amendments to the Florida Rules of Civil Procedure, 773 So.2d 1098 (Fla.2000)(holding that the 2001 version of rule 1.442, which adopts the time set forth in rule 1.525, became effective Jan. 1, 2001). Accordingly, the final order is reversed, and the cause is remanded for reconsideration of the merits of appellants’ amended motion to tax costs and attorney’s fees.

REVERSED and REMANDED.

VAN NORTWICK AND POLSTON, JJ., LARRY G. SMITH, Senior Judge, concur.


text:
    Ronald GOODMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-339.
    District Court of Appeal of Florida, First District.
    March 13, 2003.

      Nancy A. Daniels, Public Defender; Gary D. Wimsett, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Robert L. Martin, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of a conviction, following a jury trial, for possession of more than 20 grams of cannabis. The state’s case was based on constructive possession. Appellant denied knowledge that the cannabis was present. This placed in dispute the essential element of knowledge of the illicit nature of the substance, as well as that of knowledge of the presence of the substance. Scott v. State, 808 So.2d 166 (Fla.2002); Blunt v. State, 831 So.2d 770 (Fla. 4th DCA 2002). Accordingly, failure to instruct the jury on the element of knowledge of the illicit nature of the substance constituted fundamental error, entitling appellant to a new trial. Reed v. State, 837 So.2d 366 (Fla.2002); Blunt, 831 So.2d at 771-72. Section 893.101, Florida Statutes (2002), may not be applied retroactively to this case because the offense was alleged to have occurred before that statute was enacted. Norman v. State, 826 So.2d 440 (Fla. 1st DCA 2002).

REVERSED and REMANDED, with directions.

BOOTH, WEBSTER and LEWIS, JJ., concur.


author: BROWNING, J.

text:
    R. Allen KEA, Appellant, v. Debra Kay KEA, Appellee.
    No. 1D02-2057.
    District Court of Appeal of Florida, First District.
    March 13, 2003.

      T. Sol Johnson of Johnson, Green & Miller, Milton, for Appellant.
    No appearance for Debra Kay Kea, Ap-pellee.
   BROWNING, J.

This is a timely appeal from a final order finding the former husband in contempt for failing to adequately deal with marital debt. We reverse, and hold that the trial court abused its discretion in granting the former wife’s motion for contempt because, as Appellant correctly argues, contempt is not the proper remedy for property settlement disputes. See, e.g., Lee v. Lee, 710 So.2d 186, 187 (Fla. 1st DCA 1998).

In Lee, this Court explained that contempt is proper only if the unpaid debt is for alimony or child support, as it was in that case. Id. The Court distinguished the situation in Lee from those in Hobbs v. Hobbs, 518 So.2d 439 (Fla. 1st DCA 1988), Marks v. Marks, 457 So.2d 1137 (Fla. 1st DCA 1984), and Ball v. Ball, 440 So.2d 677 (Fla. 1st DCA 1983). In those three cases, this Court reversed the orders holding the former husband in contempt for failing to pay debt, because the debt in each case was unrelated to alimony or child support. Another case in the same vein, Schminkey v. Schminkey, 400 So.2d 121, 122 (Fla. 4th DCA 1981), explains that to enforce a requirement to repay a debt due to a third party is improper because of the constitutional prohibition on imprisonment for debt.

In the instant case, it is clear that the debt at issue, a mortgage, is not related to alimony or child support. The final judgment of dissolution of the parties’ marriage states that “neither party shall receive an award of alimony,” and incorporates the terms of the mediation settlement agreement. The mediation settlement agreement states, in part, that “as husband’s equitable distribution of marital debt, he shall assume, agree to pay and hold wife harmless from the following: (A) Andalusia mortgage.... ” There is no hint of child support in the documents. Because the parties’ situation is analogous to those described in Hobbs, Marks, and Ball, the trial court’s finding of contempt constitutes an abuse of discretion.

Accordingly, we REVERSE and REMAND to the trial court for further proceedings.

BARFIELD and LEWIS, JJ., concur.


text:
    D. Paul SONDEL, Appellant, v. W. Paul SAWYER, M.D., and Southeastern Urological Center, Appellees.
    No. 1D02-5241.
    District Court of Appeal of Florida, First District.
    March 13, 2003.
    Appellant, pro se.
    Kristina L. Sutter, Tallahassee, for Ap-pellees.
   PER CURIAM.

Having considered the appellant’s responses to this Court’s orders, dated January 27, 2003, and February 11, 2003, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on December 19, 2002, appealing the Order on Defendants’, W. Paul Sawyer, M.D. and Southeastern Urological Center’s Motion to Dismiss, entered on November 13, 2002, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R. App.9.110(b).

DISMISSED.

ERVIN, WOLF and VAN NORTWICK, JJ., concur.


text:
    Robert O. SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-4585.
    District Court of Appeal of Florida, First District.
    March 13, 2003.
    Robert O. Simmons, pro se, petitioner.
    Charlie Crist, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petitioner is granted a belated appeal from the order of the Circuit Court for Leon County which denied a motion for postconviction relief after an evidentiary hearing in case number 95-315 AF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the lower tribunal to be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ERVIN, WOLF and VAN NORTWICK, JJ., concur.


text:
    Michael KENDRICK, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D02-4014.
    District Court of Appeal of Florida, First District.
    March 13, 2003.
    Michael Kendrick, pro se, petitioner.
    Michael L. Camper, General Counsel, and Alexandria Walters, Assistant General Counsel, Tallahassee, for respondent.
   PER CURIAM.

Michael Kendrick petitions this court for a writ of mandamus, asking this court to compel disposition of a petition for writ of habeas corpus which is pending before the Circuit Court for Columbia County in its case number 2002-160-CA. We have considered the respondent’s arguments in opposition to the petition, but find that resolution of the habeas corpus petition has been unreasonably delayed and petitioner is entitled to relief. Browning v. State, 814 So.2d 1220 (Fla. 1st DCA 2002); Ber nard v. State, 734 So.2d 606 (Fla. 1st DCA 1999). Accordingly, we grant the mandamus petition and direct the circuit court to either deny the habeas petition as facially insufficient or issue an order to show cause within 30 days of issuance of mandate in this cause. If a response is ordered, a final disposition of the habeas petition shall be made within 30 days of the filing of petitioner’s reply, or the expiration of the time for filing of such a reply.

PETITION GRANTED.

ERVIN, WOLF and VAN NORTWICK, JJ., concur.


author: THOMPSON, C.J.

text:
    Thadius STINSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-957.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2003.

      James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

Thadius R. Stinson appeals the denial of his motion to withdraw his plea and vacate his sentence. We affirm.

Stinson was charged with two counts of robbery with a firearm, possession of a firearm by a convicted felon, carrying a concealed firearm, and possession of drug paraphernalia. On 17 January 2002, as the case was about to go to trial, the state offered Stinson a sentence of thirty years in prison in exchange for a guilty plea. The state told the court that if Stinson accepted the offer of thirty years in prison, Stinson’s co-defendant, his brother, would be offered five years of probation. Stinson agreed and entered a plea of guilty to the lesser charge of robbery with a weapon, stating he understood that under the original charges he faced a life sentence as a prison releasee reoffender. The state amended the information to reflect the lesser included charge and filed a nolle prosequi on the other four counts. The state informed the court that the factual basis for the plea was that a witness had seen Stinson rob the victims and leave in a car driven by his brother. The witness followed the car and flagged down police, who found the victims’ jewelry in the car and, later, in Stinson’s underwear. The trial court adjudicated Stinson guilty of robbery with a weapon, sentencing Stinson to the agreed 30 years.

Paragraph 14 reads: I have read every word in this written plea, have discussed it with my lawyer, and fully understand it. I am fully satisfied with the way my lawyer has handled this case for me ... He/she has done everything I have asked him/her to do.

On 8 February 2002, Stinson moved to withdraw the plea, alleging that it was involuntary because he was under duress at the time he entered the plea. At the evidentiary hearing on his motion, Stinson testified that, in the interview room in the courthouse, he was told by his attorney that he would receive a sentence of ten years in exchange for a plea, but that the offer changed to thirty years when he was in the courtroom. According to Stinson, he learned that if he entered a plea, he would receive a sentence of 30 years, and his brother would receive five years of probation. When asked why he accepted the offer, Stinson testified that he felt he was in a no-win situation. He explained that, because his attorney had said they would not win at trial, Stinson felt his attorney would not defend the case as Stinson would like. Furthermore, he testified that his brother, sitting to the right of him, was crying. Stinson testified that he felt that he was stuck between a rock and a hard place. He testified: “It hurt me to see him crying like that, you know. He wanted out of the situation [and] I wanted out of the situation.”

Stinson’s attorney testified that the substance of the offer from the state was that Stinson would plead guilty to robbery with a weapon in exchange for a 30 year sentence. The offer of probation to the brother was contingent on Stinson’s accepting the offer made to him. The attorney testified that he relayed this information to Stinson. The attorney testified that he also informed Stinson that he was prepared to go to trial.

A guilty plea must be entered voluntarily by one who is competent to know the consequences of the plea, and a trial court must carefully inquire into the voluntariness of the plea. See Lopez v. State, 536 So.2d 226, 228-229 (Fla.1988) (citing Mikenas v. State, 460 So.2d 359, 361 (Fla.1984)). The voluntariness of the plea is determined by considering the relevant surrounding circumstances. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The standard of review of an order denying withdrawal of a plea is abuse of discretion. See Robinson v. State, 761 So.2d 269 (Fla.1999).

By way of supplementary authority, Stinson cites U.S. v. Abbott, 241 F.3d 29 (1st Cir.2001). There, the court reversed an order denying the defendant’s motion to withdraw his plea because the prosecutor did not inform the sentencing court of the connection between the defendant’s plea and the probationary sentence received by the defendant’s mother. Id. at 34-35. Thus, Stinson’s contention would seem to be that his plea was involuntary because the offer of probation to his brother was contingent on Stinson accepting the state’s offer to him. Stinson cites no similar Florida cases and our research has found none, so we turn to federal cases for instruction.

Plea agreements that are conditioned on the acquiescence of other defendants, so-called “package deals” or “wired” plea agreements, are not unconstitutional per se. See, e.g., United States v. Vest, 125 F.3d 676 (8th Cir.1997); United States v. Wright, 43 F.3d 491, 498 (10th Cir.1994); United States v. Marquez, 909 F.2d 738 (2nd Cir.1990); Politte v. United States, 852 F.2d 924, 930 (7th Cir.1988); Mosier v. Murphy, 790 F.2d 62, 66 (10th Cir.1986); Martin v. Kemp, 760 F.2d 1244, 1248 (11th Cir.1985); United States v. Diaz, 733 F.2d 371, 375 (5th Cir.1984); United States v. Usher, 703 F.2d 956, 958 (6th Cir.1983); Cortez v. United States, 337 F.2d 699, 701-702 (9th Cir.1964); Kent v. United States, 272 F.2d 795, 799 (1st Cir.1959). It is the prosecutor’s prerogative to offer a package deal or no deal at all. Vest, 125 F.3d at 679 (quoting Nguyen v. United States, 114 F.3d 699, 704 (8th Cir.1997)).

Nevertheless, the Supreme Court, while not ruling on the constitutionality of such agreements, has pointed out that “a prosecutor’s offer during plea bargaining of adverse or lenient treatment for some person other than the accused ... might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider.” Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Where the state threatens prosecution of one with whom the defendant has familial ties or other close bonds, the threat of coercion is much greater. United States v. Carr, 80 F.3d 413, 416-417 (10th Cir.1996). Of special concern with regard to such agreements is that one defendant, who hopes to obtain the more lenient sentence, might coerce another defendant to accept the package deal. See, e.g., United States v. Castello, 724 F.2d 813 (9th Cir.1984). It has been held that a plea agreement entailing leniency to a third party imposes a special responsibility on the trial court to ascertain the voluntariness of the plea because of its coercive potential. See, e.g., United States v. Whalen, 976 F.2d 1346 (10th Cir.1992); Abbott, 241 F.3d 29. For this reason, the trial court must be informed that a plea is part of a multi-party agreement. See Abbott, 241 F.3d 29.

In cases involving leniency toward a third party, or a promise not to prosecute a third party, the government must act in good faith. To act in good faith, the government must have probable cause to charge the third party at the time the defendant is offered leniency for the third party, or at the time the defendant is threatened that the third party will be charged. Wright, 43 F.3d at 499; Martin v. Kemp, 760 F.2d 1244, 1247-48 (11th Cir.1985); United States v. Diaz, 733 F.2d 371, 375 (5th Cir.1984); Harman v. Mohn, 683 F.2d 834 (4th Cir.1982); United States v. Canino, No. 96-271, 1997 WL 141864 (E.D. Penn March 25, 1997).

In the instant case, the state made its offers in open court, and explained to the court that the offer to the brother was contingent upon Stinson’s accepting the offer made to him. Further, Stinson accepted the offer in open court, complaining only about the length of the sentence being offered. Accordingly, the trial court was aware of the circumstances surrounding Stinson’s plea. Further, the court adequately inquired into the volun-tariness of Stinson’s plea. The court asked Stinson several times whether he was entering the plea voluntarily, and at the same time, it informed Stinson numerous times that he had the option of going to trial and that his attorney was prepared for trial. Further, there is no suggestion that the state was acting in bad faith. Indeed, the factual basis for Stinson’s plea indicates that the state had a substantial case against both Stinson and his brother. Nor is there any suggestion that the brother exerted undue influence on Stin-son. Stinson testified that his brother was crying, and he felt that he was in a no-win situation at the time of the plea, but concern for one’s friends or loved ones does not render a plea involuntary as a matter of law, see e.g. Cortez, 337 F.2d at 700, and the fact that a defendant is presented with unpleasant alternatives does not render a guilty plea involuntary, see Bordenkircher, 434 U.S. at 365, 98 S.Ct. 663. The conviction is affirmed.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.

      . §§ 812.13(2)(a); 775.087, Fla. Stat.

      . §§ 790.23; 775.087(2)(a)(l), Fla. Stat.

      . § 790.01(2), Fla. Stat.

      . § 893.147(1), Fla. Stat.

      . Stinson signed a written plea agreement. There are several paragraphs which are pertinent to our review:
      Paragraph 5 reads: No one has promised me anything to get me to enter the plea(s) except as stated herein. The prosecutor has recommended the following: 30 [years] P.R.R. [Prison Releasee Reoffender] ... I understand the maximum penalties for the charge(s) to be life....
      Paragraph 7 reads: No one has pressured or forced me to enter the plea(s). I am entering the plea because: I believe it is in my own interest. I enter the plea(s) voluntarily of my own free will.


author: MONACO, J.

text:
    David R. AKINS, Appellant/Cross-Appellee, v. Norma J. AKINS, Appellee/Cross-Appellant.
    No. 5D01-3643.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2003.
    Neva M. Kelaher, Winter Park, for Ap-pellanVCross-Appellee.
    Shannon L. Akins, of Shannon L. Akins, P.A., Orlando, for Appellee/Cross-Appel-lant.
   MONACO, J.

This is an appeal and cross appeal from a Second Amended Final Judgment rendered by the lower court after remand by this court. Akins v. Akins, 659 So.2d 330 (Fla. 5th DCA 1995). The central issue raised by the appellant, the former husband, is whether the lower court erred in failing to review both equitable distribution and alimony on remand, and in not finding that the two were interrelated and integral parts of an overall scheme. The former wife cross-appeals, raising three points. First, the former wife contends that the lower court refused to correct a mathematical error. Secondly, she maintains that the court erred in failing to award her attorney’s fees on remand. Finally, the former wife argues that the lower court abused its discretion in treating the former husband’s motion for a rehearing as a petition to modify alimony even though that relief was not requested by the former husband.

The trial court properly recognized, in connection with the issue raised by the former husband, that it was not authorized to deviate from the terms of an appellate court’s instructions. Straley v. Frank, 650 So.2d 628 (Fla. 2d DCA 1994). That is to say, a trial court lacks discretionary power to go beyond the scope of relief granted by the appellate court. Rinker Materials Corp. v. Holloway Materials Corp., 175 So.2d 564 (Fla. 2d DCA), cert. denied, 180 So.2d 657 (Fla.1965). Thus, once the present case was decided on appeal, the circuit court was bound by the decree as the law of the case and was required to perform the purely ministerial act of implementing the mandate. As the trial court could not give any other relief other than to put into effect that which had been remanded, it was correct in declining to grant the relief sought by the former husband. Hill v. Palm Beach Polo, Inc., 805 So.2d 1014, 1016 (Fla. 4th DCA 2001).

With respect to the issues raised by the cross-appeal, the trial court erred only in failing to award attorney’s fees to the former wife on remand. See Cattaneo v. Cattaneo, 803 So.2d 889 (Fla. 5th DCA 2002); Segall v. Segall, 708 So.2d 983 (Fla. 4th DCA 1998); Rico v. Rico, 487 So.2d 1161 (Fla. 5th DCA 1986). The trial court is directed, therefore, to reconsider the issue of attorney’s fees in light of the change of the relative financial resources of the parties engendered by the trial court’s redistribution of assets that resulted from the earlier appeal, and to award to the former wife an appropriate attorney’s fee commensurate with the reallocated resources of the parties.

AFFIRMED in part, REVERSED in part and REMANDED.

SAWAYA and PLEUS, JJ., concur.


author: GRIFFIN, J.

text:
    John Stephen ZIELKE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3396.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2003.

      Robert Augustus Harper and Michael Robert Ufferman, of Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION TO RECALL MANDATE

GRIFFIN, J.

This matter is before the court on appellant’s motion to recall mandate and consider appellant’s motion for rehearing as timely filed. For the reasons set forth below, we grant the motion to withdraw mandate. We also consider and grant the motion for rehearing, withdraw our previous per curiam affirmance and issue a new opinion.

Appellant, John Stephen Zielke [“Zielke”], filed an appeal of a summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct his sentence. This court affirmed, per curiam, on December 23, 2002. Zielke had until January 7, 2003, to timely file his motion for rehearing of our decision. Fla. R.App. P. 9.330(a). Zielke’s counsel, who is located in Tallahassee, transmitted the motion on January 6 by United States Postal Service overnight delivery Express Mail. Although the postal service received the motion on January 7, it did not deliver the motion to the court until January 8, 2003. The court’s mandate issued on January 9, 2003, apparently on the premise that no timely motion had been filed. Upon receipt of the mandate, Zielke’s counsel prepared the instant motion to recall the mandate, setting forth the reason for the tardy filing, which was received by the court on January 15, 2003. In the meantime, this court’s term ended on January 13, 2002, and the new term commenced on January 14, 2003. On January 16, prior to receipt of the instant motion, the motion for rehearing was stricken as untimely.

Upon receipt of appellant’s motion and the explanation of the reason for the tardy filing, the panel agreed that the mandate should be withdrawn, the motion for rehearing accepted as timely, and the motion considered on the merits. The question arose, however, whether the court’s jurisdiction had ended by virtue of the expiration of the term of court during which the mandate had issued. See State Farm Mutual Auto. Ins. Co. v. Judges of District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981). We conclude that our jurisdiction had not expired because a motion for rehearing subsequently determined by us to be timely was filed and pending when the prior term of court ended. This being so, the mandate was improvidently issued and should be withdrawn. Moreover, the fifteen-day filing deadline set forth in Florida Rule of Appellate Procedure 9.330(a) is not jurisdictional. The failure to file the motion by January 7 was not fatal to our jurisdiction, and the motion remained pending when the new term of court began. No action was taken to strike the motion for rehearing until after the new term of court had begun and shortly thereafter, we determined that the motion for rehearing was improvidently stricken. Accordingly, we have jurisdiction and determine that the mandate should be withdrawn. See Thompson v. Singletary, 659 So.2d 435 (Fla. 4th DCA 1995).

Having now considered the motion for rehearing on the merits, we grant the motion and issue the following opinion.

AFFIRMED. See Coppola v. State, 795 So.2d 258 (Fla. 5th DCA 2001).

ORFINGER, J., and HARRIS, C., Senior Judge, concur.


text:
    TRIPLE FISH AMERICA, INC., Team Fish America, Inc., and Kenneth A. Smith & Associates, Inc., et. al., Petitioners, v. TRIPLE FISH INTERNATIONAL, L.C., and Mylon Slonek GMBH & Co. KG, Respondents.
    No. 5D02-3008.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2003.

      Mark S. Reisinger of Railey & Harding, Orlando, for Petitioners.
    H. Clay Parker of Parker & Associates, P.A., Orlando, for Respondents.
   PER CURIAM.

Petitioners seek certiorari review of the trial court’s order granting appellee Dietmar Slonek’s motion for protective order and requiring petitioners to travel to Germany to take Slonek’s deposition. Concluding that the trial court properly granted Slonek’s motion for protective order, we deny the petition.

Petitioners, defendants below, filed their notice of taking the deposition of Dietmar Slonek, a resident of Germany, and requested his appearance in Orlando, Florida for that purpose. Slonek filed a motion for protective order alleging, among other things, that: 1) he is a citizen of Germany and resides in Germany; 2) he is not a party to the action; and 3) requiring him to travel to Orlando would constitute an undue burden and expense. The trial court granted the motion for protective order. Petitioners challenge this ruling arguing that Slonek’s request for a protective order should have been denied because Slonek was either a current or former officer of the plaintiff corporations.

Normally, officers of a plaintiff corporation are required to attend a properly noticed deposition in the forum where the action is pending. See Ormond Beach First Nat’l Bank v. J.M. Montgomery Roofing Co., 189 So.2d 239 (Fla. 1st DCA 1966), cert. denied, 200 So.2d 813 (Fla.1967). Here, however, petitioners failed to designate Slonek as a corporate officer by either noticing the deposition of a corporation through Slonek, or identifying Slonek in the notice of taking deposition as an officer, director, or managing agent of either of the plaintiff corporations. Having failed to do so, neither of the plaintiff corporations filed a motion for protective order directed to the deposition; only Slo-nek in his individual capacity filed such a motion. On this record, it was not error for the trial court to grant Slonek’s motion for protective order. Accordingly, the petition for certiorari is denied, without prejudice to petitioners properly noticing a deposition of a party plaintiff.

PETITION DENIED.

PETERSON, PALMER and TORPY, JJ., concur.

      . Certiorari review is available to review tried court orders requiring that depositions take place at an erroneous location. See Donahoo v. Matthews, 660 So.2d 391 (Fla. 5th DCA 1995) (granting certiorari and correcting order requiring defendants to travel from Duval County to Putnam County for deposition). Accord Logitech Cargo, U.S.A., Corp. v. JW Perry, Inc., 817 So.2d 1033 (Fla. 3d DCA 2002); Teledyne Indus., Inc. v. Mustang Ranch Aircraft, Inc., 753 So.2d 785 (Fla. 3d DCA 2000); Ayer v. Bush, 696 So.2d 1333 (Fla. 4th DCA 1997); Fortune Ins. Co. v. Santelli, 621 So.2d 546 (Fla. 3d DCA 1993); Cady v. Laws, 341 So.2d 1022 (Fla. 4th DCA 1977).


author: HARRIS, C., Senior Judge.

text:
    Jennifer D. NAYLOR, Appellant, v. DISTRICT BOARD OF TRUSTEES, etc., et al., Appellees.
    Nos. 5D02-560, 5D02-561.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2003.
    Michael J. Appleton, Orlando, and Alan M. Schwerer, of Law Office of Alan M. Schwerer, P.A., for Appellant, Jennifer D. Naylor.
    Walter A. Ketcham, Jr., Jeanelle G. Bronson, and Jack E. Holt, III, of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Appellee, Orange County.
    Michael A. Miller and Stephanie A. Seg-alini, of Katz, Kutter, Alderman, Bryant & Yon, P.A., Orlando, for Appellee, District Board of Trustees of Valencia Community College, Florida.
   HARRIS, C., Senior Judge.

The principal issue in this case is whether the right of competent persons to contract should be abrogated in this instance because of an overriding public policy. A subsidiary issue is that if it appears that consideration of public policy is appropriate, who — the legislature which has established the criteria which brings the issue of public policy into play, or the courts— should determine exactly what the public policy is and which, among competing public policies, should prevail.

Here, appellant wished to become a certified police officer. She enrolled in the course at appellee Valencia Community College and signed the required general release. During her training, she was injured. She claims the injury resulted from the negligence of her trainers and seeks recovery. She recognizes that the release, if valid, will prevent recovery.

The legislature, in Chapter 943, Florida Statutes, established the Criminal Justice Standards and Training Commission and clothed the Commission with broad authority to certify criminal justice training schools, approve the prescribed courses, and, in so far as the school teaches approved commission courses, have access to all financial and personnel records relating to the training.

Appellant executed the release without reservation. There is no contention that the release, if valid, does not release the college from liability for the injury sustained by appellant. The claim is that because of the necessity of having well-trained police officers and because the leg-Mature has mandated that the Commission require a strenuous training course, our public policy should require that those individuals who enroll for the training and are injured because of the negligence of the trainers should not be required to execute a release precluding them from recovery and that any such release, if actually executed, should be held invalid. On the other hand, because of the urgency of having well trained police officers, the legislature may have determined that the best interest of the state is better served by certifying accredited colleges which are willing to participate in the training program even if they insist on releases of liability.

The trial court determined, after considering the public policy argument, that the parties’ general release should prevail. We have searched Chapter 943 to see if it contains a clear statement of public policy. We found none. It may be that by permitting the certification of colleges which insist on the release that the legislature has inferentially established the public policy in this regard. Or it may be that the legislature simply failed to consider the issue. Even though we agree that it should be the legislature which determines the appropriate public policy in -this instance because it has taken such an active role in the certification and training of police officers, we nevertheless certify the following issue to the supreme court as one of great public importance:

MAY ONE WHO ELECTS TO PARTICIPATE IN A TRAINING PROGRAM REQUIRED FOR CERTIFICATION AS A POLICE OFFICER VALIDLY RELEASE FROM PERSONAL INJURY LIABILITY THOSE RESPONSIBLE FOR THE TRAINING?

AFFIRMED; QUESTION CERTIFIED.

GRIFFIN and ORFINGER, JJ„ concur.


author: KELLY, Judge.

text:
    Roy R. ROWE, Appellant, v. STATE of Florida, Appellee.
    No. 2B02-4138.
    District Court of Appeal of Florida, Second District.
    March 14, 2003.
   KELLY, Judge.

Roy Rowe challenges the trial court’s order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Rowe argues that his sentence as a habitual felony offender is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). We affirm the decision of the trial court because the statute under which Rowe was sentenced, section 775.084(4)(a)(2), Florida Statutes (2001), was not affected by the amendments contained within chapter 99-188. Rowe is therefore not entitled to relief under Taylor.

Affirmed.

SILBERMAN and COVINGTON, JJ., concur.

      . Taylor held that chapter 99-188, Laws of Florida was unconstitutional because it was enacted in violation of the single subject rule.


author: NORTHCUTT, Judge.

text:
    John BRATCHER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4067.
    District Court of Appeal of Florida, Second District.
    March 14, 2003.
   NORTHCUTT, Judge.

John Bratcher challenges an order denying his motion for transcripts of record to support his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand for further proceedings.

In his motion for transcripts, Bratcher asked the circuit court to provide him transcripts of the plea hearings in two cases “in the event he needs to amend his [3.850] motion and/or prepare for an evidentiary hearing.” Bratcher is not entitled to free copies of the transcripts unless they were prepared at public expense and are in the possession of counsel. See Johnson v. State, 836 So.2d 1103 (Fla. 2d DCA 2003). Therefore, we affirm the denial of Bratcher’s motion for transcripts.

We reverse the order insofar as it purports to summarily deny Bratcher’s rule 3.850 motion. The circuit court attached no portions of the record to support its denial of the motion. Further, Bratcher’s motion went to two trial court cases. The fact that the motion may be successive in one case is not grounds for denying it in regard to the second case. On remand, if the circuit court again summarily denies the rule 3.850 motion, it shall attach portions of the record that conclusively refute Bratcher’s claims.

Affirmed in part, reversed in part, and remanded.

SALCINES and STRINGER, JJ., Concur.


author: COVINGTON, Judge.

text:
    Robert A. JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4166.
    District Court of Appeal of Florida, Second District.
    March 14, 2003.
   COVINGTON, Judge.

Robert Jacobs challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Jacobs argues that his three year minimum mandatory sentence is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). We affirm the order of the trial court because Jacobs’ motion is facially insufficient as he does not affirmatively allege that his date of offense falls within the window created by Taylor. We note, however, that the trial court did not dismiss Jacobs’ motion as facially insufficient. Instead, in its August 19, 2002 order, it dismissed Jacobs’ motion without prejudice to refile when the Florida Supreme Court had reviewed the decision in Taylor. On May 29, 2002, the State filed a voluntary dismissal of said review in State v. Taylor, 821 So.2d 302 (Fla.2002) (table). Our affir-mance is therefore without prejudice to Jacobs’ filing a facially sufficient rule 3.800(a) motion.

FULMER and KELLY, JJ., Concur.


author: SALCINES, Judge.

text:
    John J. ZANGARI, Appellant, v. Tracy CUNNINGHAM, Appellee.
    No. 2D01-2605.
    District Court of Appeal of Florida, Second District.
    March 19, 2003.

      Arnold D. Levine and Robert H. Mackenzie of Levine, Hirsch & Segall, P.A., Tampa, for Appellant.
    David A. Maney and Patricia F. Kuhl-man of Maney, Damsker, Jones, Kiely & Kuhlman, P.A., Tampa, for Appellee.
   SALCINES, Judge.

John J. Zangari, the former husband, appeals from a final judgment of dissolution of marriage challenging the trial court’s classification of specific stock as marital, the award of bridge-the-gap alimony to the former wife, and the requirement that he secure that alimony award with life insurance. Tracy Cunningham, the former wife, cross-appeals from the final judgment challenging the trial court’s award, to the former husband, of a special equity interest in the marital home. We affirm, without further discussion, the classification of the stock at issue as marital and the award of bridge-the-gap alimony to the former wife. We affirm the trial court’s requirement that the former husband maintain life insurance to secure the alimony payments, but reverse and remand for a review of the amount and terms of that insurance. Finally, we reverse the trial court’s award of a special equity interest in the marital home.

The parties were married in 1995 and have twin children who were born in 1995. The parties separated in November 1998 and their marriage was dissolved in 2001.

In the final judgment of dissolution, the former wife was awarded bridge-the-gap alimony through 2004 and the former husband was ordered to secure that award with life insurance in the amount of $250,000. In appropriate circumstances, a spouse can be required to maintain life insurance for the purpose of protecting the financial well-being of the other spouse. Sobelman v. Sobelman, 541 So.2d 1153, 1155 (Fla.1989). Under the facts of the present case, the trial court did not abuse its discretion by requiring that the former husband maintain a life insurance policy to secure the alimony awarded to the former wife. However, the amount of the coverage which the former husband was ordered to maintain lacks a sufficient evidentiary basis — the record contains no evidence of the former husband’s insura-bility at the time of the final hearing or the cost of the proposed insurance and, thus, the former husband’s ability to pay that unspecified cost. See Lopez v. Lopez, 780 So.2d 164 (Fla. 2d DCA 2001) (holding that an order requiring a party to purchase life insurance to secure a support obligation must have the requisite eviden-tiary basis, and reversing for further proceedings to reevaluate the life insurance requirement set forth to secure child support obligations). Further, as in Merkin v. Merkin, 804 So.2d 595 (Fla. 2d DCA 2002), the specific amount of coverage ordered in the present case bore no correlation to the projected alimony amounts. Thus, we reverse the requirement that the former husband maintain life insurance coverage in the amount of $250,000 to secure the bridge-the-gap alimony, and we remand for further proceedings.

The award, to the former husband, of a special equity interest in the parties’ marital home also requires a reversal and remand. In Florida, there is a presumption that entireties real property is marital property regardless of who paid for it. § 61.075(5)(a)(5), Fla. Stat. (2001). In order to overcome the statutory presumption, the party seeking a special equity has the burden of proving that a gift was not intended. See Robertson v. Robertson, 593 So.2d 491 (Fla.1991).

In the present case, the parties’ home, which was purchased after the marriage, was jointly titled and thus enjoyed the presumption of marital property. The trial court awarded the former husband a special equity interest based upon evidence that the former husband had made the down payment for the parties’ marital home with Ms nonmarital assets. Standing alone, that evidence was insufficient to prove that the former husband did not intend a gift. See Cattaneo v. Cattaneo, 803 So.2d 889 (Fla. 5th DCA 2002). Hence, the trial court erred in awarding the former husband a special equity in the jointly titled marital home because the former husband did not overcome the statutory presumption by demonstrating that a gift was not intended.

As explained in Cattaneo, however, the trial court’s error does not mean that the former wife is necessarily entitled to fifty percent of the value of the marital home. See id. at 891. Thus, on remand the trial court should reevaluate the equitable distribution of the marital home. Id.

Affirmed in part; reversed in part and remanded for further proceedings consistent herewith.

CASANUEVA and COVINGTON, JJ., Concur.

      . We note that the trial court also ordered the former husband to procure life insurance to secure his child support obligations. However, the former husband does not challenge the life insurance requirement in regard to his child support obligations.

      . Although we remand the present case for further proceedings on this issue, we do so with some reservation. The need to secure the bridge-the-gap alimony award with life insurance can be affirmed from facts evident in the record. The amount and terms of the life insurance coverage cannot be affirmed on this record due to a failure of proof. Because the appropriate remedy upon a reversal was not presented as an issue in the present case and this area of the law was emerging during the period of time these parties presented their case, we have remanded for further proceedings rather than merely reversing the requirement that the former husband secure the alimony award with life insurance. See Lopez v. Lopez, 780 So.2d 164 (Fla. 2d DCA 2001).


text:
    Warren WILLIAMSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5236.
    District Court of Appeal of Florida, Second District.
    March 19, 2003.
    James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Warren Williamson appeals his conviction for lewd and lascivious act on a person under sixteen years of age in contravention of section 800.04(4), Florida Statutes (1991). We reverse.

Williamson was originally charged by information in 2000 and was tried on a second amended information filed in 2001. The information alleged that Williamson directed M.S. to touch or fondle him in a lewd or lascivious manner. The single incident which gave rise to the charges against Williamson occurred between July 15, 1992, and December 31, 1992. The matter proceeded to a bench trial in 2001.

By the time of the trial, M.S. was seventeen years of age. However, at the time of the incident, in 1992, she was eight years old. Williamson was the live-in boyfriend of M.S.’s mother for seven years beginning in July 1992. The three resided in a two-bedroom, two-level apartment townhouse.

When M.S. was eight years old, Williamson sometimes babysat her while her mother was at work. M.S. testified that, on one of the days when Williamson was babysitting her, she came down the stairs of the townhouse with a three-foot tall plastic container which was partially filled with coins. Williamson, who was wearing swim trunks, had his back turned to her. M.S. snuck up behind Williamson and dumped the coins into his swim trunks. Some of the coins fell out of the leg openings of Williamson’s swim trunks and scattered about the floor. The rest of the coins became lodged in Williamson’s swim trunks causing it to look as if he had “poop” in his pants. M.S. then began to pat the area where the coins were hanging down in the swim trunks, causing more coins to fall out. Williamson and M.S. both thought the prank was funny and both laughed about it.

At some point, Williamson got down on the floor to pick up all the scattered coins. M.S. put more coins down Williamson’s swim trunks, got down on her knees behind Williamson, and patted the area of the swim trunks where the coins had lodged. M.S. put coins in Williamson’s swim trunks and “patted them out” a total of three times.

M.S. testified that Williamson told her “there were more coins there,” and she put coins in Williamson’s swim trunks after he said that. However, the record provides no guidance as to when, during the progression of the incident, Williamson said that or what was meant by his statement. Also, according to M.S., at some point Williamson put coins in his swim trunks. She testified:

Q. Did he at any point ever take the coins, himself, and put them in or not?
A. Yes, I remember that.
Q. Tell me how that happened.
A. I remember — I remember him standing up and I remember seeing his shoulders, and I remember—
Q. Was he facing you then or facing somewhere else?
A. Yeah, he was touching himself like right here (indicating), and he reached down.
Q. Let me stop you for a few seconds on this one. Where was he touching himself on his body? What was he touching?
A. I’m not sure because he had his back to me. I remember I seen him reaching down. I remember his hands. I saw his elbows from like the back of him, like this (indicating).
Q. Did you eventually see him from the front?
A. No. He went back on all fours and he was — I remember being by the back of him and I remember seeing his head upside down, and I was — I was behind his butt patting him out, and then I remember being on the other side of him patting him out.

Again, the record provides little guidance as to when that occurred within the sequence of the activity. Williamson testified that he was standing when the incident began, but that he got down on the floor afterward to pick up the coins.

Both M.S. and Williamson laughed during the ruckus. Indeed, Williamson testified that M.S. was squealing hysterically. Both M.S. and Williamson testified that, at the time, they perceived the incident to be funny, a prank or a joke. Williamson testified that as soon as the joking around began to make him feel uncomfortable, he told M.S. it was weird and told her to stop. M.S. testified that the encounter simply ended but that she had no recollection of how it ended, and that the entire activity lasted more than five minutes but less than ten minutes.

M.S. testified that Williamson did not touch her during the encounter. Likewise, M.S. testified that at no time did she view Williamson’s genitals or touch his genitals inside his swim trunks. Williamson maintained that the activity was entirely innocent.

As part of the criminal investigation in the case, a controlled telephone call was arranged between M.S. and Williamson. During the recorded conversation, which was introduced at the trial, M.S. and Williamson discussed the incident. Williamson appeared to be upset during the conversation and made references to the fact that he used to “drink too much.” During the call, when M.S. asked if that was his explanation, he was just drunk, Williamson stated:

I don’t even remember what went on except I remember we were — I think I put some — I put some ice down your pants, PJs, and you ran around and grabbed a handful of pennies, put them down my shorts. And I’m going to tell you something. I never should have been, you know, wearing underwear. And I remember pennies flying everywhere. We were just laughing like it was so funny. And then I remember feeling, ooh, you know, this is weird. This is weird, it’s not right. (Unintelligible) God, if I — I would never hurt you.

On appeal, Williamson asserts that the facts do not support his conviction because there was no proof of intent and no proof that he instigated the event. The State contends that although Williamson did not initiate the event, his active participation in its continuation provided the requisite intent necessary to establish a violation of law.

There is no all-encompassing list of acts which would constitute a lewd or lascivious act under section 800.04. See Egal v. State, 469 So.2d 196 (Fla. 2d DCA 1985). In Egal, this court opined that the legislature has failed to provide a definition of lewd and lascivious, that it would be difficult or impossible to list all acts which might be connoted lewd and lascivious, and that the courts must determine, on a case-by-case basis, whether an act falls within the purview of the statute. Id. at 197. This court explained that the term “lewd and lascivious” has been said to connote “wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator.” Egal, 469 So.2d at 198. In Egal, we recognized that “conduct which in some circumstances might be purely innocent, such as nudity, can be found to be lewd and lascivious if accompanied by the requisite improper intent.” Id. In Egal, this court determined that a jury could find the requisite intent from the circumstances therein.

In the present case, there was no evidence from which the trial court could infer Williamson’s “wicked, lustful, unchaste, licentious, or sensual design.” Williamson did not initiate the event. The encounter was brief and, at the moment he felt uncomfortable with the situation, Williamson immediately directed M.S. to stop. Thus, the evidence indicates that Williamson did not allow the encounter to continue beyond propriety. The conversation which transpired during the controlled call did not provide a basis upon which to infer intent. Because there was no evidence from which the requisite intent could be inferred, Williamson’s conviction cannot be sustained.

Reversed.

CASANUEVA, J., and THREADGILL, EDWARD F., Senior Judge, concur.


author: STEVENSON, J.

text:
    Amos L. GARNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4674.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.
    Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Linda Harrison and Maria J. Patullo, Assistant Attorneys General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

STEVENSON, J.

We deny appellant’s motion for rehearing, but withdraw our opinion filed on February 5, 2003, and substitute the following in its place.

Amos L. Garner was tried by jury and convicted of first degree arson. We have considered the issues raised on appeal and find no reversible error. We write only to address the issue of whether a person detained in a Jimmy Ryce facility, upon completing a prison term, may be sentenced as a prison releasee reoffender. See § 775.082(9), Fla. Stat. (1999). Because Jimmy Ryce facilities are not correctional facilities, and are intended to be long-term treatment facilities, we conclude that a person transferred to a Jimmy Ryce facility is a “prison releasee,” pursuant to section 775.082(9)(a)l.

On February 7, 1999, Amos Garner was released from the custody of the Department of Corrections after serving a lengthy prison term on four cases. Garner was then released to the custody of the Department of Children and Families under the Jimmy Ryce Act of 1998.

While at the Jimmy Ryce facility, Garner had an altercation with another detainee. As a result of the incident, Garner was placed in a room for time out, while the other detainee was not. Employees subsequently smelled smoke coming from the room and witnessed Garner setting his shirt and magazines on fire. Garner threatened to burn down the facility if he was not immediately released from the room. Garner was later charged with, and found guilty of, first degree arson of a normally occupied building. He was sentenced as a prison releasee reoffender to thirty years in prison.

Garner argues that he should not have been sentenced as a prison releasee reof-fender because, for all practical purposes, he was never “released” upon completing his prison term, but was simply transferred from one state correctional facility to another. Garner points out that the Jimmy Ryce facility to which he was released is physically located -within the grounds of the South Bay Correctional Institution, a DOC facility.

In order to sentence Garner as a prisoner releasee reoffender, the State had to show that Garner committed the crime of “arson” “within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor.” § 775.082(9)(a)l. Jimmy Ryce facilities are operated by the Department of Children and Families, not the Department of Corrections, and are separate and apart from facilities operated by the Department of Corrections. Section 394.917(2), Florida Statutes (1999), provides that:

If the court or jury determines that the person is a sexually violent predator, upon the expiration of the incarcerative portion of all criminal sentences and disposition of any detainers ..., the person shall be committed to the custody of the Department of Children and Family Services for control, care, and treatment until such time as the person’s mental abnormality or personality disorder has so changed that it is safe for the person to be at large. At all times, sexually violent predators who are committed for control, care, and treatment by the Department of Children and Family Services under this section shall be kept in a secure facility segregated from patients who are not committed under this section.

In addition, section 394.929 provides that “[t]he Department of Children and Family Services is responsible for all costs relating to the evaluation and treatment of persons committed to the department’s [Department of Children and Families] custody as sexually violent predators.” See also § 394.9135(1), Fla. Stat. (1999)(“If the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility.”).

Further, Jimmy Ryce facilities are not the same as correctional facilities. Chapter 944, the Florida Corrections Code, defines a “State correctional institution” as “any prison, road camp, prison industry, prison forestry camp, or any prison camp or prison farm or other correctional facility, temporary or permanent, in which prisoners are housed, worked, or maintained, under the custody and jurisdiction of the department.” § 944.02(6), Fla. Stat. (1999)(emphasis added). A “Prisoner” is defined as “any person who is under arrest and in the lawful custody of any law enforcement official, or any person convicted and sentenced by any court and committed to any municipal or county jail or state prison, prison farm, or penitentiary, or to the custody of the department, as provided by law.” § 944.02(5). A private correctional facility is defined by statute as “any facility, which is not operated by the department [Department of Corrections], for the incarceration of adults or juveniles who have been sentenced by a court and committed to the custody of the department.” § 944.710(3), Fla. Stat. (1999).

By definition then, a state correctional facility houses “prisoners” and a private correctional facility houses persons who have been sentenced by a court and committed to the Department of Corrections. Garner was not a prisoner within the meaning of section 944.02(5). Garner was also not being detained by a private correctional facility since he was not sentenced by a court and was not committed to the custody of the Department of Corrections. Rather, Garner was in the custody of the Department of Children and Families. The statutory scheme indicates that it was not the legislature’s intent to equate Jimmy Ryce facilities with correctional facilities — state or private. On the contrary, Jimmy Ryce facilities are more in the nature of long-term treatment facilities for sexually violent predators. See § 394.910, Fla. Stat. (1999).

Lastly, we cannot agree that the fact that the Jimmy Ryce facility in question is physically located within the grounds of a correctional facility is significant. Although the facility is on the grounds of South Bay Correctional Institution, it is located in a separate building managed by a private vendor under contract with the Department of Children and Families.

AFFIRMED.

KLEIN and TAYLOR, JJ., concur.

      . The court would note that throughout the record, appellant's name is listed as both Amos L. Garner and Amos L. Gardner; the Department of Corrections and the final judgment refer to appellant as Amos L. Gardner.


text:
    Cleveland WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2998.
    District Court of Appeal of Florida, Second District.
    March 19, 2003.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Cleveland Williams challenges the revocation of his probation after officials at the sex offender treatment program in which Williams was enrolled ejected him from the program. We reverse because the probation condition, as amended on March 16, 2001, simply required Williams to successfully complete sex offender treatment within three years. Because there yet remains time in the probation period to satisfy this requirement, Williams’s termination from the program on this occasion did not violate the condition. We direct the court to reinstate Williams’s probation to allow him the balance of the three-year period to complete this condition. See Muthra v. State, 777 So.2d 1067 (Fla. 3d DCA 2001); Gamble v. State, 737 So.2d 1160 (Fla. 1st DCA 1999).

Reversed and remanded for further proceedings.

STRINGER and DAVIS, JJ., concur.


text:
    Oscar HODGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4033.
    District Court of Appeal of Florida, Second District.
    March 19, 2003.
   NORTHCUTT, Judge.

Oscar Hodge appeals the denial of his motion for return of property seized from him during his arrest and subsequent prosecution for first degree murder. Hodge first sought the return of certain items following his conviction, but the circuit court denied the motion without prejudice to refiling after his appeal was concluded. This court later affirmed Hodge’s conviction and sentence, whereupon he filed another motion in the circuit court seeking return of a long list of items. The circuit court again denied the motion. We have jurisdiction, see Brown v. State, 613 So.2d 569 (Fla. 2d DCA 1993), and we reverse.

When denying Hodge’s motion, the circuit court cited section 790.08(4), Florida Statutes (2000), which deals solely with the return of “[wjeapons, electric weapons or devices, and arms....” No such items were listed in Hodge’s motion for return of property, and for that reason the mentioned statute is wholly inapplicable to this matter.

Reversed and remanded for further proceedings.

SILBERMAN and COVINGTON, JJ„ concur.


author: FULMER, Judge.

text:
    Kenneth and Shelly WILSON, and Paul and Monica Vigna, Appellants, v. REX QUALITY CORPORATION, Appellee.
    No. 2D02-1048.
    District Court of Appeal of Florida, Second District.
    March 26, 2003.
    Robert A. Young of Gibson, Valenti & Ashley, Lake Wales, for Appellants.
    Tanya M. Comparetto of Law Offices of Tanya M. Comparetto, P.A., Lakeland, for Appellee.
   FULMER, Judge.

Kenneth and Shelly Wilson and Paul and Monica Vigna appeal the final judgment entered in favor of Rex Quality Corporation (the Association) in which the trial court declared the Wilsons and the Vignas to be in violation of the Declaration of Restrictions governing the Crown Pointe Subdivision. Rex Quality Corporation is the name used by the homeowner’s association and was the plaintiff below. For the reasons set forth in this opinion, we reverse.

The Wilsons and the Vignas are two families that moved into the Crown Pointe Subdivision in 1997. The underlying dispute centers on the Association’s contention that the deed restrictions prohibit Mr. Wilson and Mr. Vigna from parking their company vehicles in the driveway of their residences. Mr. Wilson drives a Chevy Astro Van that bears, in several places, the words “Enjoy Coca Cola” painted in red. Mr. Vigna drives a Chevrolet S10 Pickup Truck bearing the words “Precision Termite and Pest Control” followed by “679-BUGS.” The parties stipulated that the truck driven by Mr. Vigna was a “small pickup truck.”

The restrictions at issue provide in part:

1. All lots shall be used only for single family residential purposes, and use of said lots shall be restricted and limited to conventionally constructed residential dwellings.
8. No sign of any kind shall be displayed to the public view on any lot, except one professional sign of not more than one (1) square foot, one sign of not more than five (5) square feet advertising the property for sale or rent, or signs used by a builder to advertise the property during the construction and sale period.
14. No noisy automobiles, trucks, motorcycles, dirt bikes or other similar type vehicles shall be permitted, and no commercial trucks (except small pickup trucks) shall be permitted.
18. No parking facilities shall be permitted on any lot, except a paved pad large enough to accommodate not more than two (2) automobiles. Private vehicles of a lot’s occupants may be parked on the lot’s driveway. No wheeled vehicle or boat shall be parked in the front or side yard of any lot.
No trailers or recreational vehicles shall be maintained or permitted on any lot, unless they are kept completely inside a garage attached to the residential dwelling, or approved by the Corporation pursuant to Paragraph three (8) above.

Beginning in March 2000, the Association sent letters to the Wilsons and Vignas advising them:

Article 1 of the Declaration of Restrictions states that lots shall be used for residential purposes and Article 18 refers to private vehicles of the lot’s occupants being parked in driveways. Article 14 prohibits commercial trucks and Article 8 prohibits signs of any kind except “for sale” signs relating to the property. By permitting a [Coca Cola/Precision Termite] commercial vehicle to be parked on your residential lot you are violating Article 1 not to mention 18. Furthermore you are not in compliance with Article 14 and 8.

In September 2000, the Association filed the underlying complaint seeking a declaratory judgment and specific performance of the restrictions. The complaint alleged that the parking of a commercial truck at a residence within Crown Pointe was prohibited pursuant to paragraph 14 of the Declaration of Restrictions and that the parking of a commercial vehicle and the display of signage on any vehicle within Crown Pointe violated paragraphs 1, 8, and 18. In their answer to the complaint, the Wil-sons and Vignas denied the Association’s interpretation of these restrictions and raised the affirmative defenses of selective enforcement, waiver, and estoppel.

After a nonjury trial, the trial court entered a final judgment in which it acknowledged that “there may be conflicting interpretations of Paragraph fourteen (14),” but determined that as to the issues before the court, “there is no ambiguity in Paragraph eight (8) and such Paragraph controls.” The judgment recites:

Pursuant to Paragraph eight (8), “no sign of any kind shall be displayed to the public view on any lot ... ” and the only exception to that is the referenced For Sale signs.... If the sign is on a vehicle that is on the lot, it is a violation of the Declaration.

The judgment concludes with an order that the Wilsons and Vignas immediately come into compliance.

Restrictive covenants are not favored and are to be strictly construed in favor of the free and unrestricted use of real property. Moore v. Stevens, 90 Fla. 879, 106 So. 901, 903 (1925). “In construing restrictive covenants the question is primarily one of intention, and the fundamental rule is that the intention of the parties as shown by the agreement governs, being determined by a fair interpretation of the entire text of the covenant.” Thompson v. Squibb, 183 So.2d 30, 32 (Fla. 2d DCA 1966). “Due regard must be had for the purpose contemplated by the parties to the covenant, and words used must be given their ordinary, obvious meaning as commonly understood at the time the instrument containing the covenants was executed.” Moore, 106 So. at 903. Any doubt as to the meaning of the words used must be resolved against those seeking enforcement. Id. at 904.

With these rules in mind, we must review the restrictions and come to our own conclusion as to their proper interpretation. See Baldwin v. Nature’s Hideaway, Phase I-B Homeowners Ass’n, 613 So.2d 1376 (Fla. 2d DCA 1993); Royal Oak Landing Homeowner’s Ass’n v. Pelletier, 620 So.2d 786 (Fla. 4th DCA 1993). We first examine paragraph 8, which the trial court determined to be the controlling provision. The prohibition in this paragraph addresses display of a sign “on any lot,” not “on any lot or vehicle.” Giving the words used their ordinary and obvious meaning, we conclude that paragraph 8 relates only to signs posted on the residents’ lots and not to vehicles parked in the driveways. The trial court’s interpretation not only ignores the expressly allowed professional signs but also prohibits certain vehicles that are expressly allowed by paragraph 14. Furthermore, such interpretation would exclude the temporary parking of service and repair vehicles as well as law enforcement vehicles.

Having decided that paragraph 8 controlled, the trial court declined to resolve the conflicting interpretations of paragraph 14 advanced by the parties. We conclude that paragraph 14 is, in fact, the controlling provision. The Declaration of Restrictions contains twenty-one paragraphs. Excluding paragraphs that relate to the creation and operation of the Association and the owners’ liability for assessments, all of the paragraphs — save one— relate to the use of real property. Paragraph 14, which relates specifically to vehicles, distinguishes between automobiles, trucks, motorcycles, dirt bikes, commercial trucks and small pickup trucks. With respect to commercial vehicles, paragraph 14 provides that “no commercial trucks (except small pickup trucks) shall be permitted.” This provision does not prohibit all “commercial vehicles.” The plain meaning of the words reflects an intent to permit certain commercial vehicles. Neither the vehicle driven by Mr. Wilson nor the vehicle driven by Mr. Vigna is a commercial truck as that term is used in the Declaration of Restrictions.

Because we conclude that the trial court erred by finding the Wilsons and the Vig-nas to be in violation of the Declaration of Restrictions, we reverse the final judgment. Our reversal renders moot the remaining issues raised in this appeal.

Reversed.

KELLY, J„ and GREEN, OLIVER L., Senior Judge, Concur.

      . The Association refers to the provisions of the Declaration as paragraphs and articles interchangeably.

      . Contrary to the trial court's finding, paragraph 8 does not prohibit all signs with the exception of "For Sale" signs. One professional sign of not more than one square foot is permitted.

      . Testimony at trial established that at least two residents regularly drove their law enforcement vehicles home without complaint from the other residents or the Association.


author: |,PER CURIAM. b CALOGERO, Chief Justice,

text:
    STATE of Louisiana v. Joe GALLIANO.
    No. 2002-KK-2849.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
    Dissenting Opinion by Calogero, C.J., Jan. 24, 2003.
   |,PER CURIAM.

The defendant is charged with second degree cruelty to a juvenile, a violation of LSA-R.S. 14:93.2.3. The charge arises out of an incident in which the two-year-old victim, while in defendant’s care, sustained serious brain injury consistent with shaken baby syndrome. The State filed a “Notice of Intent to Use Evidence of Other Crimes, Wrongs, or Acts” seeking to introduce evidence that, approximately four months prior to the head injury, the victim sustained a broken leg when defendant applied excessive force to extricate him from a car seat.

The district court conducted a hearing consistent with State v. Prieur, 277 So.2d 126 (La.1973). The State introduced a copy of a “Care Center Forensic Report” prepared by Dr. Scott A. Benton in connection with the leg injury and the transcript of the testimony at a hearing conducted in juvenile court. At the juvenile court hearing, defendant acknowledged that the victim suffered a broken leg when he attempted to extricate the victim from his car seat. In district court the State argued that the evidence of the prior leg fracture is admissible at defendant’s trial arising out of the head injury to prove knowledge, identity and absence of mistake or accident. The district court agreed, ruling that evidence of the prior incident which resulted in a spiral fracture to the victim’s femur is admissible at defendant’s trial because it has | ^independent relevance to the issues of intent, system and absence of mistake or accident.

The defendant applied to the Court of Appeal, Fifth Circuit, for writs. On October 25, 2002, the court of appeal granted defendant’s writ application and reversed the ruling of the district court. The court of appeal ruled that the evidence of defendant’s prior bad act is inadmissible because the prior act is not similar to the current charge, does not prove a material fact at issue, has no independent relevance other than showing that the defendant is of bad character, and lacks probative value that outweighs its prejudicial effect.

Because defendant’s trial was scheduled to begin on December 2, 2002, the State applied to this court for writs of certiorari from the judgment of the court of appeal and a stay of further proceedings. We granted the State’s application for a stay, and now, for the reasons expressed below, we reverse the decision of the court of appeal and reinstate the district court’s ruling finding the other acts evidence admissible.

As a general rule, courts may not admit evidence of other crimes, wrongs or acts of the defendant in order to show that he or she is a person of bad character who has acted in conformity therewith. LSA-C.E. art. 404(B)(1). However, the State may introduce evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason for its admissibility, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. LSA-C.E. art. 404(B)(1). The State must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. State v. Prieur, 277 So.2d at 130. Additionally, the State must prove that the defendant committed the other acts. Id. | ¡¡Finally, the probative value of the other crimes, wrongs or acts evidence must outweigh its prejudicial effect. LSA-C.E. art. 403; State v. Hatcher, 372 So.2d 1024, 1033 (La.1979).

In the instant case, the district court conducted the requisite Prieur hearing at which the State introduced evidence that the defendant committed the prior act sought to be introduced into evidence. In the transcript of defendant’s testimony at the juvenile court hearing conducted in connection with the prior incident, the defendant acknowledged that the victim suffered a fracture of his femur when defendant attempted to pull him out of his car seat, but defendant claimed that the incident was an accident. The State argued that the evidence of this prior incident has independent relevance to establish knowledge, identity, and absence of mistake or accident in connection with the current incident. According to the State, the evidence is admissible to negate defendant’s contention that while he did shake the victim, he did not intend, nor did he shake the victim hard enough, to cause the severe head injury the victim sustained. The defendant argued that the evidence of the prior incident is not admissible because it is not similar to the incident for which defendant is being tried, has no probative value, and is designed solely to inflame the jury.

After weighing the evidence and arguments of counsel, the district court concluded that the evidence of the prior incident has independent relevance to the issues of intent, system, and absence of mistake or accident and is admissible. We find no abuse of discretion in that determination. See, State v. Stepp, 28,-868 (La.App. 2 Cir. 12/11/96), 686 So.2d 76, 79, writ denied, 97-0410 (La.6/30/97), 696 |4So.2d 1006 (trial court’s ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion).

The district court properly invoked the exception in LSA-C.E. 404(B)(1) and allowed the introduction of the other acts evidence to negate defendant’s claims of accident, mistake and lack of intent. The evidence of the prior incident in which the victim sustained a broken femur when defendant pulled him forcefully from his car seat has probative value to show the improbability that the defendant acted without the requisite intent, or accidentally, when he, according to his own admission, shook the victim in the instant situation “to get his attention.” See, State v. Monroe, 364 So.2d 570 (La.1980) (under doctrine of chances, likelihood that defendant was required to kill twice in self defense on successive nights at the same location was so remote that evidence of the other killing was admissible to negate self defense and lack of intent). Under the particular circumstances of this case, although evidence of the prior incident is clearly prejudicial, we cannot say that it is so inflammatory as to create an unacceptable risk of luring jurors “into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997). The court of appeal erred in holding to the contrary.

Accordingly, the writ is granted, the judgment of the court of appeal is reversed, and the judgment of the trial court finding the other crimes, wrongs or acts evidence to be admissible is reinstated. The stay order, previously issued by this court is lifted, and the case is remanded to the district court for further proceedings consistent with this opinion.

CALOGERO, C.J., dissents and will assign reasons.

b CALOGERO, Chief Justice,

dissents.

I respectfully dissent from the majority’s decision to summarily reverse the court of appeal decision with a Per Curiam disposition. I believe the issue in this case is sufficiently close that this court should grant the writ and invite the parties to brief and argue the case, followed by an authored opinion.

The majority employs a “doctrine of chances,” which was used in State v. Monroe, 364 So.2d 570 (La.1978), to find that the likelihood that the defendant was required to kill twice in self defense on successive nights at the same location was so remote that the evidence of the other killing was admissible to negate self defense and lack of intent. The majority concludes that the “doctrine of chances” likewise applies to this case because the likelihood that the defendant would accidentally cause injury to the same child on two separate occasions is also remote. However, I believe that the application of the doctrine to the instant case is much more equivocal than its application in Monroe.

In the instant case, the defendant admitted that the child previously suffered a spiral fracture to his leg when the defendant tried to extricate him from a car seat. The defendant has now been charged with second degree cruelty to a juvenile 1¡,,because, while in the defendant’s care, the same child suffered brain damage consistent with shaken child syndrome. Unlike the two acts at issue in Monroe (killing two assailants allegedly in self defense), the prior event in this case (spiral leg fracture to the child or infant), is not similar to the injury in question (brain damage consistent with shaken child syndrome). Moreover, there is no evidence indicating that the defendant had a particular animus toward the child or that the defendant regularly abused the child. In the absence of such evidence, I do not believe that the “doctrine of chances” necessarily supports an assumption that the defendant intentionally harmed the child when he shook him simply because he had previously been involved in an event which caused harm to the child under different facts. The evidence in this case as easily supports a suggestion that the defendant is a crude ruffian when handling children, as it supports a suggestion that the defendant intended to harm the child on two disparate occasions.

The issue in this case is sufficiently close to warrant a grant in order to allow the parties to brief and argue their positions. However, to reverse summarily results in a somewhat high handed removal of a ruling of the court of appeal in favor of the defendant.

More and more frequently, this court has been performing the function of district court judges, making interlocutory rulings that govern forthcoming trials. Such rulings are more likely than not issued by a court majority perhaps not as informed as the trial judge, certainly not as informed as the trial judge regarding the facts, even if equally well-informed regarding the applicable law.

To my mind, this is a distortion of the customary procedure in connection with appellate review. This practice of summary disposition, as opposed to hearing argument and issuing an authored opinion, seems more and more prevalent in recent layears. Consider, for example, some recent interlocutory rulings of this court: State v. Lavigne, 821 So.2d 486 (La.7/25/02); State ex rel. Thibodeaux v. State, 01-2510 (La.3/8/02), 811 So.2d 875; State v. Fedison, 01-2736 (La.2/8/02), 807 So.2d 834; Yamell v. Crews, 01-2523 (La.12/14/01), 803 So.2d 979; Norbert v. Loucks, 01-1229 (La.6/29/01), 791 So.2d 1283; State v. Johnson, 00-2406 (La.1/12/01), 778 So.2d 546.

It is, of course, not beyond the jurisdictional authority of this court, which has supervisory authority over all of the other courts under La. Const. Art. 5, § 5(A), to substitute our judgment for that of a trial judge. State v. Wimberly, 414 So.2d 666, 670 (La.1982). “The constitutional grant of supervisory authority to this court is plenary, unfettered by jurisdictional requirements, and exercisable at the complete discretion of the court.” Id. Nonetheless, micro-managing the district court by use of our supervisory authority is a practice that should infrequently, or rarely, be utilized.

      . As to the requisite burden of proof, we noted in State v. Kennedy, 2000-1554 (La.4/3/01), 803 So.2d 916, 920 n. 5 that Article 1104 of the Louisiana Code of Evidence was added in 1994 to provide that "the burden of proof in a pretrial hearing held in accordance with State v. Prieur, 277 So.2d 126 (La.1973), shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404.” We need not reach the issue of the applicable burden of proof in this case, because we find that the State satisfied its burden under either the clear and convincing evidence standard or the preponderance of the evidence standard.

      . In Wimberly, we recognized that our supervisory authority should be exercised in limited instances:
      In practice, however, certain limitations upon the use of this power are recognized by this court out of respect for the independence of other courts in the determination of questions confided to their judicial discretion, and to avoid usurping merely appellate jurisdiction not conferred upon us by the constitution. [Tate, Supervisory Powers of the Louisiana Courts of Appeal, 38 Tul.L.Rev. 429 (1964); Comment, Supervisory Powers of the Supreme Court of Louisiana over Inferior Courts, 34 Tul.L.Rev. 165 (1959).] We have generally restricted the use of supervisory jurisdiction to those cases “where there is a clear usurpation of power not confided by law, or a refusal to perform some duty plainly imposed by law, and which [the lower courts] have no discretion to refuse, and when there is an entire absence of other adequate remedy." State ex rel. City of New Orleans v. The

        Judge of the Sixth District Court, 32 La.Ann. 549 (1880).
      414 So.2d at 670.