author: PALMER, J.

text:
    STATE of Florida, Appellant, v. Carlton Wayne BELL, Appellee.
    No. 5D03-833.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PALMER, J.

The State appeals the trial court’s order dismissing the information filed against Carlton Wayne Bell. See Fla. R.Crim. P. 3.190(c)(4)(authorizing the dismissal of a complaint on the basis that the undisputed facts do not establish a prima facie case of guilt). Concluding that, in seeking dismissal, Bell failed to demonstrate both that there were no genuine issues of material fact and that the undisputed material facts failed to establish a prima facie ease of his guilt, we reverse.

Bell was charged by information with knowingly possessing 28 grams or more of cocaine or a mixture containing cocaine. Bell filed a motion to dismiss the information alleging that the facts,- as set forth by the State’s witnesses, were material, were not disputed, and were insufficient to establish a prima facie case for possession of 28 grams or more of cocaine or a mixture containing cocaine.

The trial court conducted a hearing on the motion. At the hearing, the trial court had before it the deposition testimony of four police officers who were involved either in the controlled buys at Bell’s residence or the execution of the search warrant at his residence. In his deposition, Officer Hall testified that a confidential informant conducted several controlled buys at Bell’s residence and that he monitored the transactions that took place. He further stated that during the controlled buys he observed the confidential informant go up to Bell and speák to him, Bell go into the carport of his home and return about 20 to 30 seconds later, and Bell hand something to the confidential informant. The informant then handed a marked $20 bill to Bell. A second officer, Officer Berk-man, testified during his deposition that within one hour after the third controlled drug buy took place, a search warrant was executed on Bell’s residence. Á third officer, Officer Bishop, testified in his deposition that he participated in the execution of the search warrant at Bell’s residence and that he found an ounce' of cocaine in a storage shed attached to the carport. However, in their depositions all four of the officers admitted being unable to testify that Bell had any knowledge of the existence of the contraband in his residence.

The trial court also had before it the charging affidavit which- stated that three controlled buys-of cocaine were made by a confidential informant from Bell at Bell’s home. The charging affidavit further stated that during the course of the search of Bell’s residence, Bell'was located and ar-. rested in the room- where the drugs were stored and weighed. A search „of that room also revealed over 40 grams of co-, caine, a scale, baggies, rubber bands, a glass bowl with ’ cocaine résidue, spoons with cocaine residue, and cash, including the marked $20 bill used by the' confidential informant: A search of Bell’s bedroom revealed paperwork showing the premises as being Bell’s residence.

In seeking dismissal, Bell argued that dismissal was warranted because during their depositions none of the officers admitted that they ever saw Bell in the house or in actual possession of the drugs at the time of his arrest, and therefore the, State would be unable to prove the requisite element of guilty knowledge. The State responded by arguing that the issue of Bell’s knowledge of the existence of any contraband inside his home was a factual question for the jury to determine and thus inappropriate for consideration on a dismissal motion. Upon review, the trial court entered an order dismissing the charge .against Bell, concluding that dismissal was warranted because the State failed to present any evidence indicating that Bell knew-or had knowledge of any contraband located in his .residence or that he was in possession of any contraband at the time of his arrest. The trial court stated that it based its decision on the fact that the deposition testimony of the police officers differed from the information set forth in the charging affidavit. The State appeals.

Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure authorizes the dismissal of a complaint on the basis that the undisputed facts do not establish a prima facie case of guilt. A rule 3.190(c)(4) motion should be granted only when the trial court determines that the most favorable construction of the facts does.not establish a prima facie case of guilt; if there is any evidence upon which a reasonable jury could find guilt, a motion to dismiss must be denied. State v. Reese, 774 So.2d 948 (Fla. 5th DCA 2001). As the court in Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977) explained:

Initially, the defendant in his sworn motion must allege that the material facts of the case are undisputed, describe what the undisputed material facts are, and demonstrate that the undisputed facts fail to establish a prima facie case or that they establish a valid defense (either an affirmative defense or negation of an essential element of the charge).

Id. at 1045-1046. Moreover, on a motion made pursuant to rule 3.190(c)(4), the State is not only entitled to receive the most favorable construction of the evidence but also to have all inferences resolved against the defendant. See State v. Paleveda, 745 So.2d 1026 (Fla. 2d DCA 1999)(holding that when considering a defendant’s motion to dismiss, the trial court must resolve all questions and inferences from the facts in favor of the State); State v. Hunwick, 446 So.2d 214 (Fla. 4th DCA 1984)(holding that “[o]n a motion to dismiss, the State is entitled to a construction most favorable to it; all inferences are resolved against the defendant.”). In considering a dismissal motion, the trial court is not permitted to make factual determinations or to consider either the weight of the conflicting evidence or the credibility of the witnesses. State v. Fetherolf, 388 So.2d 38, 39 (Fla. 5th DCA 1980)(stating that “[i]t is not proper [on a rule 3.190(c)(4) motion] for the court to determine factual issues, consider weight of conflicting evidence, or credibility of witnesses” and holding that defendant was not entitled to dismissal of criminal information charging sexual battery and lewd assault on ground that alleged victim gave deposition in which she disclaimed her original statements on which the charges were based; victim’s first statement, created material disputed facts).

Our review of the record reveals that the evidence presented by the State at the dismissal hearing, when construed most favorably to the State, provided a prima facie case for constructive possession of cocaine. Accordingly, the trial court’s dismissal order must be reversed.

In that regard, in order to establish constructive possession of contraband, the State must prove that the defendant (1) had dominion and control over the contraband, (2) knew the contraband was in his presence, and (3) knew of the illicit nature of the contraband. J.J.N. v. State, 877 So.2d 806 (Fla. 5th DCA 2004). While Bell maintained in his motion to dismiss that the State failed to present sufficient evidence on the second element of constructive possession, whether or not he knew the contraband was in his presence, we disagree.

The instant record demonstrates that the deposition testimony of four police officers along with the statements set forth in the charging affidavit constituted enough evidence to permit guilty knowledge of the presence of contraband to be inferred. See Goin v. Commission on Ethics, 658 So.2d 1131 (Fla. 1st DCA 1995)(holding that the State can prove the accused’s knowledge of presence of drugs and ability to maintain control over premises by presenting evidence of actual knowledge or evidence of incriminating statements and circumstances from which the jury might lawfully infer the requisite knowledge to support a conviction). . Specifically, the State presented evidence indicating that Bell lived at 719 Cornelia Court, three controlled buys of cocaine took place at that location between Bell and a confidential informant, during the execution of the search warrant on that residence in excess of 28 grams of cocaine were found as well as the marked $20 bill used in one of the controlled buys, and Bell was located and arrested in the same room where the drugs were found. See State v. St. Jean, 658 So.2d 1056 (Fla. 5th DCA 1995)(holding that a motion to dismiss for failure to state a prima facie case of guilt is not generally an appropriate vehicle to challenge the issue of knowledge as an element of constructive possession of cocaine).

In closing, we note that as an alternative ground for granting Bell’s motion to dismiss, the trial court stated in its dismissal order that “the State cannot rely on the charging affidavit for its traverse when it is clear from the deposition testimony that the police officers cannot testify that the information in question is true.” The trial court further ruled: “The defendant has deposed the four police officers listed by the State as witnesses in this case and none of them can testify that on the date he was arrested the defendant knew or had knowledge of any contraband in the premises located at 719 Cornelia Court or that the defendant was in possession of, sold, manufactured or delivered any contraband on that date.” In so ruling, the trial court considered factual issues regarding the discrepancies in the police officers’ testimony as compared-with the information in the charging document. Such consideration was improper. See State v. Fetherolf, 388 So.2d 38 (Fla. 5th DCA 1980).

REVERSED and REMANDED for reinstatement of the information.

PLEUS and ORFINGER, JJ., concur. •

      . Bell has failed to file an answer brief in this case.

        . See § 893.135(l)(b)l.a., Fla. Stat. (2001).

      . In the instant case, section 893.101 of the Florida Statutes (2002) which established that knowledge of the illicit nature of a controlled substance is not an element of the offense does not apply because Bell committed the crime on April 10, 2002, and the statute became effective a month later, on May 13, 2002. See J.J.N. v. State, 877 So.2d 806 (Fla. 5th DCA 2004)(holding that statute eliminating the element of knowledge of the illicit nature of the drugs for drug possession offenses can not be applied retroactively).


source: Caselaw Access Project

author: PER CURIAM. ORFINGER,'J.,

license: Public Domain

text:
    Raymond ALLENDE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2101.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.
    Ricardo R. Pesquera, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee. •
   PER CURIAM.

In this direct appeal, Raymond Allende argues that the twenty-five-year sentence imposed by the trial judge following his conviction of trafficking in cocaine in excess of 200 grams was vindictive. He contends that the trial judge punished him with an enhanced sentence for proceeding to trial, rather than accepting the State’s plea offer of seven years in prison.

Allende failed to raise this issue in the trial court as required by Florida Rule of Criminal Procedure 3.800(b). Consequently, he cannot raise it for the first time on direct appeal. While conceding that the issue was not preserved in the trial court, Allende contends that a vindictive sentence constitutes fundamental error that can be raised for the first time on appeal. We disagree. “[F]or defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2)[], the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal.” Brannon v. State, 850 So.2d 452, 456 (Fla.2003).

Our supreme court made clear in Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So.2d 1015 (Fla.2000) (hereafter Amendments IT), that Rule 3.800(b) must be used to preserve both fundamental and non-fundamental sentencing errors.

[T]he amended rule is intended to provide one mechanism whereby all sentencing errors may be preserved for appellate review.... The amendment to rule 3.800(a) will make it clear that a rule 3.800(b) motion can be used to correct any type of sentencing error, whether we had formerly called that error erroneous, unlawful or illegal.

Brannon, 850 So.2d at 458-59 (quoting Amendments II, 761 So.2d at 1019) (emphasis supplied).

Our conclusion that Allende’s alleged sentencing error must first be presented below is buttressed by Florida Rule of Appellate Procedure 9.140(e), which provides:

A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentence; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).

Because Allende failed to preserve the issue for appellate review, we affirm.

AFFIRMED.

PETERSON and TORPY, JJ., concur.

ORFINGER, J.,, concurs and concurs specially, with opinion, in which TORPY, J., concurs.

ORFINGER,'J.,

concurring and concurring specially.

I agree that Allende’s claim of a vindictive sentence must fail on direct appeal because of his failure to raise the issue in the trial court as required by Florida Rule of Criminal Procedure 3.800(b). Nevertheless, the following exchange between the trial judge -and Allende just-prior to trial suggests to me that Allende’s claim, although procedurally barred, has merit:

THE COURT: Mr. Allende, my understanding is that you have rejected the offer of the minimum [seven years] that the State Attorney’s office is permitted to give you, is that right?
THE DEFENDANT: Yes.
THE COURT: Okay. You understand that you are looking at a first-degree felony, which means that you could get 30 years in prison if you are convicted, right?
THE DEFENDANT: Yes. I — this is my first case here. ‘
THE COURT: So?
THE DEFENDANT: I need time to think about it. This is the first time I’ve ever had any kind of problems in my life. I think I have a right to probation.
THE COURT: No, you don’t, not when you are trafficking in 200 grams or more of cocaine.
I would have to tell you that the maximum punishment is 30 years in prison. I probably would not give you thirty years in prison, because I generally reserve that for something really, really gross. I probably would give you somewhere between probably around 28 years in prison, but I would sort of hold back the 30 years.
So what you are doing is you are rejecting this plea. By rejecting this plea, you are giving up your right to seven years and gambling that you would riot get 28 'years. You understand the gamble that you are taking?
THE DEFENDANT: Yes.
THE COURT: And that’s what you want to do? It’s your life, you are absolutely entitled to gamble with your life if you want to.
How old are you?
THE DEFENDANT: Well, it’s that — no one — no attorney has helped me well in this case.
THE COURT: Oh, yeah, the victim cry. Everybody is a victim.
THE DEFENDANT: I already wrote a letter to you.
THE COURT: I never pay attention to those things. That’s just whining. The time to think about this was August. How old are you?
THE DEFENDANT: Twenty-five. It’s the first time I’ve ever had problems in my life.
THE COURT: You will be out of prison at 53. Of course, there’s a big difference between being out of prison at age 32 and 53.
[Defense Counsel]: Judge,' he already has a year in.
THE COURT: Three hundred forty-nine days already in.
So you don’t want this deal, you want to gamble with your life, is that right?
THE DEFENDANT: Can they give me a lower offer?
[The State]: No.
THE DEFENDANT: I need an' attorney who will represent me well because there are problems in my case.
THE COURT: I thought this was a hand-to-hand buy with a police officer?
[Defense Counsel]: It is. My client was found in the vehicle actually doing the transaction and he ran out of the car, they captured him and he had all of the drugs on him.
[The State]: And he did also admit to it, as well as the fact that he was possessing a firearm while this was going on.
THE DEFENDANT: I didn’t have a firearm.
[Defense Counsel]: He didn’t, Judge.
Actually, the codefendant had the firearm.
THE COURT: Okay. If you tell me you want a trial, you will have a trial tomorrow morning. But you have to understand that never again will they offer you seven years, at least that’s what they tell me.
THE COURT: We are wasting a lot of time. He doesn’t want this seven-year offer that the State’s making and he understands that if he goes to trial and loses he’s going to get somewhere between 28 and SO years, more likely 28 years, then I suggest that we get started. It’s his life and he has a right to gamble with his life. I just simply don’t want to listen to a lot of whining from prison about how he did not know he could plead to seven years and if he were to take a deal and yack, yack, yack, yack, yack. I don’t want to hear all that. If he understands that he’s gambling with his life, then I think that’s what we should do. I just want to make sure that he understands.

(emphasis added).

Following a trial on largely uncontro-verted facts, Allende was found guilty and sentenced to twenty-five years in prison. He now contends that his sentence was the result of judicial vindictiveness.

It is axiomatic that a judge must neither state, nor imply “alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.” State v. Warner, 762 So.2d 507, 518-14 (Fla.2000). Judges must scrupulously avoid suggesting in any way that a defendant’s sentence might vary depending on whether the defendant chooses to exercise his or her right to a trial. Hornbuckle v. State, 864 So.2d 1203, 1204 (Fla. 5th DCA 2004). As the supreme court has observed, “[a]ny judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional.” City of Daytona Beach v. Del Percio, 476 So.2d 197, 205 (Fla.1985) (quoting Gillman v. State, 373 So.2d 935, 938 (Fla. 2d DCA 1979)); see United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). As a consequence, although a guilty plea may justify leniency, see Alabama v. Smith, 490 U.S. 794, 802, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), an “accused may not be subjected to more severe punishment for exercising ... [the] constitutional right to stand trial.” Mitchell v. State, 521 So.2d 185, 187 (Fla. 4th DCA 1988); see Wilson v. State, 845 So.2d 142, 150 (Fla.2003).

In this case, I believe that the trial judge’s comments were heavy handed at best, and indicative of judicial vindictiveness at worst. Regrettably, however, I agree that we are unable to address the issue, which must be resolved, if at all, in postconviction proceedings.

I do not suggest that limited judicial participation in the plea bargaining process is improper. To the contrary, the supreme court authorized judicial participation in the plea bargaining process within strict confines. See Wilson. My concern here is more fundamental — this was a straightforward case on largely un-controverted facts, all of which were known by the trial judge before the quoted exchange took place. In my mind, the trial judge’s position regarding sentencing was best summarized when the judge said:

“He doesn’t want the seven-year offer that the State’s making and he understands that if he goes to trial and loses he’s going to get somewhere between 28 and 30 years....”

To me, the message was clear: Take the State’s offer of seven years now, because you will pay dearly if you insist on your constitutional right to a trial. Simply put, that is wrong.

TORPY, J., concurs.

      . § 893.135(l)(b), Fla- Stat. (2002).

        . Rule 3.800(b)(2) provides, in relevant part:
      (b) Motion to Correct Sentencing Error. A motion to correct any sentencing error, including an illegal sentence, may be filed as allowed by this subdivision.... The motion must identify the error with specificity and provide a proposed correction. A response to the motion may be filed within 15 days, either admitting or contesting the alleged error. Motions may be filed by the state under this subdivision only if the correction of the sentencing error would benefit the defendant or to correct a scrivener’s error.

      (2) Motion Pending Appeal. If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party’s first brief is served. A notice of pending motion to correct sentencing error shall be filed in the appellate court, which notice automatically shall extend the time for the filing of the brief until 10 days after the clerk of circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(e)(6).
      (A) The motion shall be served on the trial court and on all trial and appellate counsel of record. Unless the motion expressly states that appellate counsel will represent the movant in the trial court, trial counsel will represent the movant on the motion under Florida Rule of Appellate Procedure 9.140(b)(5). If the state is the movant, trial counsel will represent the defendant unless appellate counsel for the defendant notifies trial counsel and the trial court that he or she will represent the defendant on the state’s motion.

      . We express no opinion regarding Allende’s ability to raise the alleged vindictive sentencing error in appropriate postconviction proceedings.

      . "[T]he expression 'vindictiveness' [or vindictive sentencing] is simply a term of art which expresses the legal effect of a given objective course of action, and does not imply any personal or subjective animosity between the court (or a prosecutor) and the defendant.” Frazier v. State, 467 So.2d 447, 449 n. 4 (Fla. 3d DCA 1985).


text:
    TROPICAL FORD, INC., Appellant, v. Mona MAJOR, Appellee.
    No. 5D03-3000.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      Gregory M. Wilson, Orlando, for Appellant.
    Steven M. Fahlgren of the Law Offices of Steven M. Fahlgren, P.A., Orlando, for Appellee.
   PALMER, J.

Tropical Ford appeals the trial court’s non-final order denying its motion to compel arbitration on appellee Mona Major’s tort claims. Concluding that the trial court erred in denying said motion, we reverse.

Mona Major filed a complaint against Tropical Ford alleging claims of fraud, negligent misrepresentation, and a violation of the Magnuson-Moss Warranty Act. See 15 U.S.C. § 2801 et seq. The complaint alleged that Major had purchased a car from Tropical Ford and had been assured that the car was in good condition and had no problems but that Major later learned that the car had been in a major accident and had sustained damages which significantly reduced its value.

Tropical Ford responded to the complaint by filing a motion to stay and/or abate, requesting that the case be stayed until the parties could participate in mediation and, if such mediation failed, binding arbitration as set forth in the dispute resolution agreement executed by the parties. Said agreement provided that any and all claims, disputes, or issues involving the customer and the dealer must be submitted to mandatory mediation, and if mediation should fail, mandatory arbitration. Major’s signature is at the bottom of the dispute resolution agreement.

Major filed a response to the motion claiming that the dispute resolution agreement was both proeedurally and substantially unconscionable and thus unenforceable, and that the arbitration agreement did not apply to her Magnuson-Moss Warranty claims. .A hearing wast held on the motion. After considering the arguments of counsel and the supporting memoranda of law, the trial court denied Tropical Ford’s motion to compel arbitration, stating as follows:.

1. First, the Defendant [Tropical Ford] attempts to enforce the arbitration clause included in the original sales agreement. The issue arises of whether the arbitration clause is 'procedufally unconscionable. “One of the hallmarks of procedural unconscionability is the absence of any meaningful choice on the part of the consumer.” Powertel v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). In thfe case at bar, the Plaintiff had no choice but to sign the sales agreement if she wished to purchase the Defendant’s car. The Defendant • made no effort to point out or explain the arbitration clause to the Plaintiff, therefore, the arbitration clause is procedurally unconscionable.
2. Second, the arbitration agreement is included within, the sales agreement, and not within, the warranty. “Compelling arbitration on the basis of an arbitration agreement that is not referenced in the warranty presents an inherent, conflict with the Act’s purpose of providing clear and concise warranties to consumers.” Cunningham v. Fleetwood Homes of Georgia, Inc., 253 . F.3d 611, 622 (11th Cir.2001). Since the arbitration clause was not included within the warranty provision as required by the Magnuson-Moss Warranty Act, the arbitration clause is not enforceable.

Tropical Ford timely appealed this ruling, arguing that Major’s tort claims should have been ordered to proceed to arbitration. We agree.

An appellate court reviews de novo a trial court’s ruling on a motion to compel arbitration. Avid Engineering, Inc. v. Orlando Marketplace Ltd., 809 So.2d 1 (Fla. 5th DCA 2001). The determination of whether an issue is subject to arbitration is a matter of contract interpretation, and appellate review on that issue is also de novo. Ocwen Federal Bank FSB v. LVWD, Ltd., 766 So.2d 248 (Fla. 4th DCA 2000).

In Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999), the Florida supreme court explained as follows:

Under both federal statutory provisions and Florida’s arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. See Terminix Int’l Co. L.P. v. Ponzio, 693 So.2d 104, 106 (Fla. 5th DCA 1997).

Id. at 636.

Here, there is a written dispute resolution agreement signed by the parties. The agreement clearly states that all claims are covered by the agreement and there is no argument that either party had waived its right to arbitration. Since all three of the elements that the trial court was required to consider are present in this case, Tropical Ford was entitled to receive an order compelling arbitration unless Major established that the arbitration clause was unenforceable.

In an effort to establish that the arbitration clause was unenforceable, Major first argued that the dispute resolution section of the sales contract was unconscionable.

In order to invalidate an arbitration clause as unconscionable, the court must find that the clause is both procedurally and substantively unconscionable. Chapman v. King Motor Co. of S. Fla., 833 So.2d 820 (Fla. 4th DCA 2002). Procedural uneonscionability relates to the manner in which the contract was entered into and involves such issues as the relative bargaining power of the parties and their ability to know and understand the disputed contract terms. Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla. 1st DCA 1999). Substantive uneonscionability focuses on the actual agreement and whether the terms are unreasonable and unfair. Id.

Here, it is obvious on the face of the trial court’s order denying Tropical Ford’s motion to compel arbitration that the court failed to set forth any findings of substantive uneonscionability. As such, the order must be reversed. Furthermore, although the trial court made a finding of procedural uneonscionability, the instant record lacks competent substantial evidence to support same.

In that regard; to determine whether a contract is proeedurally unconscionable, a court must look to the circumstances surrounding the transaction to discover whether the complaining party had a meaningful choice at the time the contract was entered. Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278 (Fla. 1st DCA 2003). Among the factors to be considered in determining whether a contract is proeedurally unconscionable are whether the complaining party had a realistic opportunity to bargain regarding the terms of the contract or whether the terms were merely presented on a take-it-or-leave-it basis, and whether he or she had a reasonable opportunity to understand the terms of the contract. Id.

The trial court set forth the following findings in its order denying Tropical Ford’s motion to compel arbitration:

In the case at bar, the Plaintiff had no choice but to sign the sales agreement if she wished to purchase the Defendant’s car. The Defendant made no effort to point out ‘or explain the arbitration clause to the Plaintiff, therefore, the arbitration clause- is proeedurally unconscionable.

However, our review'of the hearing’transcript reveals that there was no testimony presented regarding the circumstances involved in the signing of the instant sales agreement. Therefore, the trial court’s finding of procedural uneonscionability is not supported by substantial competent evidence. Accordingly, both of Major’s tort claims must proceed to, arbitration.

REVERSED and REMANDED for entry of an order compelling arbitration on Major’s tort claims.

PLEUS and ORFINGER, JJ., concur.

      . See Fla. R.App. P. 9.130(a)(3)(C)(iv)(autho-rizing appeals of non-final order determining a party's right to proceed to arbitration).

      . Major claims in her brief that Tropical Ford failed to prove that she had signed the dispute resolution agreement. This claim is not supported by the record because, in Major’s response to Tropical Ford's motion to stay and/or abate and to extend time and enter protective order and Major’s motion for evi-dentiary hearing, Major made the following statement: "The arbitration provision signed by Plaintiff was clearly an adhesion contract because she was not able to negotiate any of the terms or provisions.” (Emphasis added). Thus, Major admitted in her own pleadings that she signed the dispute resolution agreement.

      . In its brief, Tropical Ford properly concedes that the trial court correctly ruled that since the arbitration clause was not included within the warranty provision as required by the Magnuson-Moss Warranty Act the arbitration clause is not enforceable as to Major’s warranty count, yet requests that this court review the issue of whether Major possesses a valid claim under the Magnuson-Moss Warranty Act. Specifically, Tropical Ford argues that there is no written warranty, upon which Major can base a valid claim under the Act. However, the determination of such a claim must be made by the trial court, not this court during this appeal, because this appeal was filed under rule 9.130(a)(3)(C)(iv) which limits the scope of our review to the determination of whether or not the trial court erred in denying Tropical Ford's motion for arbitration.


author: SHARP, W., J.

text:
    Robert Allen MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3440.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      James B. Gibson, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Léigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Miller appeals from an amended order rendered by the trial court in response to his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), seeking to challenge his 27 year prison sentence followed by 20 years on probation, on three grounds. On the first ground, the state conceded Miller’s total sentence of 47 years was illegal and the trial court made a proper correction. The trial court ruled against Miller on the second ground (erroneous computation of his prior record on his scoresheet), which is not challenged here. The third ground at issue in this appeal is that the judge failed to give Miller credit for the 960 days he served in county jails awaiting disposition of his post-judgment motions, which had been caused by several judicial reassignments and reassignments of defense lawyers. We affirm, but remand to the trial court to further clarify its order consistent with its oral statements at the resentencing.

At the resentencing hearing, the judge said he felt “constrained” to grant the defense’s request to give Miller credit for all of the time served in county jails, while awaiting disposition of his motions concerning his sentence. However, the sentencing order failed to expressly give Miller credit for time served in the county jails. The defense filed a motion to modify on that ground. The court rendered ah Order to Correct/Modify Sentence, which provided that on count one, Miller is “credited with the 960 days served in the Marion County jail and the Citrus .County jail for the purpose of properly computing the earned credit and gain time as compiled by the Department of Corrections.” ■

However, approximately two weeks later, after Miller had commenced serving his sentence, the trial court sua sponte rendered an Amended Order on Defendant’s Motion to Correct/Modify sentence. It stated that the court intended to award credit for time served and not an award of gain time. It stated that Miller was entitled to credit for time previously served on this case both pre-sentencing and post-sentencing. “However," it is not this Court’s intention to award this Defendant any credit for gain time that would or could have been earned had this Defendant been in the custody of the Department of Corrections during the aforementioned time period. The award of gain time is purely at the discretion of the Department of Corrections.”

The authority to regulate gain time resides with the Department of Corrections. Moore v. Pearson, 789 So.2d 316 (Fla.2001). If, in sentencing, a court attempts to bar or grant gain time, such language has been treated as surplusage or stricken. See Singletary v. Coronado, 673 So.2d 924 (Fla. 2d DCA 1996); Shape v. State, 516 So.2d 73 (Fla. 5th DCA 1987).

However, a court has the authority and jurisdiction to effect a fair sentence by awarding credit for time served, to insure that a defendant is accorded due process where, due to circumstances beyond the defendant’s control, the right to accrue gain time has been denied. In Singletary v. Marchetti, 691 So.2d 65 (Fla. 3d DCA 1997), the court affirmed an order allowing additional prison gain time. In that case, the defendant was transported to county jail from the Department of Corrections, pursuant to the order of the trial court and it did not order his return until 6 months later. As a result of his 6 month stay in county jail, the defendant was denied the opportunity to earn gain time. The court ruled that the trial court intended to mitigate the sentence in view of the defendant’s unnecessary retention in county jail. The effect of the trial court’s order was not to require the Department of Corrections to award gain time, but to shorten the sentence by the amount of time he was unjustly denied the right to accrue it.

Time served is time a defendant has actually been incarcerated and should be credited against the original sentence without any reduction in the sentence imposed by the court. The courts have the authority to order credit for time served. Only incidentally does such an award encompass gain time, because once a court orders credit for time served, the defendant becomes entitled to an allowance of gain time by operation of law. Smith v. State, 682 So.2d 147, 148 (Fla. 4th DCA 1996). § 944.275(3)(b). But the award of gain time is entirely a matter for the determination of the Department of Corrections.

In this case, the first order failed to award Miller 960 days credit for time served, even though the trial judge expressly stated he should receive credit for time he served in county jails. In the first amended order, the judge credited Miller with the 960 days “for the purpose of computing the earned credit and gain time, as complied by the Department of Corrections.” However, by the later order, the court denied credit or gain time that could or would have been earned by Miller had he been incarcerated by the Department of Corrections rather than county jails, stating that only the Department of Corrections had authority to award gain time.

We conclude that the orders, when read together, are correct although confusing. They give Miller credit for the 960 days served in the county jails, thereby reducing his total sentence to be served, and they leave to the Department of Corrections the authority to award gain time in the future, including computation for the 960 days in the county jails. We remand this cause to the trial court for the purpose of clarifying the orders rendered in this case consistent with this opinion.

AFFIRMED; REMANDED.

SAWAYA, C.J., and PETERSON, J., concur.


author: MONACO, J.

text:
    STATE of Florida, Appellant, v. Randy C. BEASLEY and Kerry S. Wilson, Appellees.
    Nos. 5D03-2368, 5D03-2701.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      . Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, Appellant.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public. Defender, Daytona Beach, for Appellees.
   MONACO, J.

The State of Florida appeals the orders of the lower court granting a motion to suppress in favor of Randy C. Beasley and Kerry S. Wilson, the appellees in this consolidated appeal. Because we conclude that the warrant underpinning the search was valid, we reverse.

Beasley was suspected of illegally producing counterfeit drivers’ licenses and checks and two witnesses tied him directly to this operation. In a search conducted of the residence occupied by the appellees, law enforcement officers found' copies of Florida identification cards on clear transparencies, computer equipment and accessories, plus some illicit drugs and paraphernalia. Beasley and Wilson were charged with two counts of possessing methamphetamines/Eestasy, and a third count of possessing drug paraphernalia.

Each of the appellees' moved to suppress the search and the evidence resulting from it, primarily because there was little direct support in the affidavits for the conclusion that the counterfeiting operation was taking place at the appellees’ residence. The trial court, who did not have the benefit of the decision of this court in State v. Weil, 877 So.2d 803 (Fla. 5th DCA 2004), granted the motion to suppress.

The facts of the present case are indistinguishable from Weil. The judge issuing the warrant in the present case had a substantial basis for inferring that items associated with the counterfeiting operation were probably at the residence of the appellees. Based on. the reasoning in Weil, we reverse.

REVERSED and REMANDED.

THOMPSON and PLEUS, JJ., concur.


author: THOMPSON, J.

text:
    Edward L. POLING and Elizabeth B. Poling, Appellants, v. PALM COAST ABSTRACT AND TITLE, INC., Appellee.
    No. 5D03-558.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      Edward L. Poling and Elizabeth B. Poling, pro se.
    Steven J. Guardiano, Daytona Beach, for Appellee.
   THOMPSON, J.

Edward L. Poling and Elizabeth B. Poling (“the Polings”) appeal a final judgment for money damages in the amount of $9,664.32. We affirm because the trial court did not abuse its discretion.

Palm Coast Abstract and Title, Inc. (“Palm Coast”) filed a two-count complaint against the Polings for civil theft and, alternatively, conversion of money that had been overpaid to the Polings at the closing of the sale of their real property to a third party. The.Polings filed an answer, counter-claim,, and a third-party complaint that raised 18 separate defenses and alleged four counts of relief. The trial court entered an order requiring ■ the parties to hold a pre-trial conference, ordering mediation, and setting the matter for a one-day, non-jury trial. The Polings appeared for the pre-trial conference, but did not attend the mediation. They notified the mediator by fax that they would not attend until Palm Coast complied with their outstanding discovery demands. After being notified by the mediator that they must reschedule the mediation before the trial and that they should contact the trial court and the opposing party, the Polings took no action. On the day of trial, the Polings failed to appear.

The trial court received an affidavit from Palm Coast’s president confirming that the Polings were overpaid at closing and that the Polings had refused Palm Coast’s demand that they return the money. The trial court entered a judgment in favor of Palm Coast for $9,664.33, including costs and interest. Further, the trial court granted Palm Coast’s motion to strike the Polings’ pleadings for failure to comply with court orders, finding that the Polings had failed to .comply,with the pre-trial order, had failed to appear for trial, and had failed to attend mediation.

First, the Polings have not filed a transcript of the proceedings below. As the appealing party, the Polings carry the burden of providing this -court with a record adequate to demonstrate reversible error. Because a trial court’s decision is presumed to be correct, the trial court is presumed to have ruled correctly absent a record that demonstrates error. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Roach v. Unemployment Appeals Com’n., 873 So.2d 617 (Fla. 5th DCA 2004); Powers v. Powers, 831 So.2d 724 (Fla. 5th DCA 2002); Compton v. Compton, 701 So.2d 110 (Fla. 5th DCA 1997). In the absence of a transcript, the trial court’s factual findings are presumed correct. Applegate, 377 So.2d at 1152; Squires v. Darling, 834 So.2d 278 (Fla. 5th DCA 2002). The exception is that an appellate court can reverse a judgment as a matter of law where an error of law is apparent on the face of the judgment. Hirsch v. Hirsch, 642 So.2d 20 (Fla. 5th DCA 1994); Casella v. Casella, 569 So.2d 848 (Fla. 4th DCA 1990). Here, the judgment contains no such errors.

More important in this case is the Polings’ contumacious flouting of court orders. They received notice of the mediation order and notice , of trial, yet they elected to attend neither. Even after being notified by the mediator that they needed to contact the trial court and the opposing party to reschedule mediation before trial, the Polings did not comply. In Arango v. Alvarez, 585 So.2d 1131 (Fla. 3d DCA 1991), the court stated:

[W]e find that it was not an abuse of the trial court’s discretion to interpret the defendants’ failure to appear at the calendar call, after the defendants had already established a pattern of disobeying and/or ignoring the earlier orders entered by the court, as being willful and intentional, thereby justifying the entry of a default.

Id. at 1133.

The striking of pleadings and the entry of a default is the most severe of penalties and must be employed only in extreme circumstances. Mercer v. Raine, 443 So.2d 944 (Fla.1983). However, the penalty is appropriate where the trial court finds that a party willfully refuses to comply with court orders. Id. The conduct must be flagrant, willful, or persistent. Kelley v. Schmidt, 613 So.2d 918 (Fla. 5th DCA 1993). In this case, the trial court’s thorough findings in the final judgment demonstrate that on multiple occasions, the Polings willfully failed to comply with the court’s orders.

AFFIRMED.

PETERSON and ORFINGER, JJ., concur.

      . The Polings received a check for $18,865.60 instead of the proper amount of $7,043.71. Although they signed the closing statement for the proper amount, the Polings negotiated the check.

      . The trial court wrote in the pfe-trial order: "Parties must file compliance as ordered within 10 days or pleadings shall be stricken and other sanctions imposed. Proposed jury instructions shall be filed within 30 days. Mediation is ordered.” (Emphasis in the original).


author: GRIFFIN, J.

text:
    Shirley BELCHER, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-3666.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      Shirley Belcher, Titusville, pro se.
    John D. Maher, Tallahassee, for Appel-lee.
   GRIFFIN, J.

Shirley B. Belcher [“Belcher”] appeals a final order of the Unemployment Appeals Commission [“UAC”] reversing the appeals referee’s determination that Belcher was entitled to unemployment benefits. Belcher contends that the appeals referee’s determination was correct because she voluntarily left the workplace for good cause attributable to her employer pursuant to section 443.101(1), Florida Statutes (2002), and that the UAC erred in reversing the referee’s decision. We agree and reverse.

From March 5, 2003, until March 21, 2003, Belcher worked full-time in the stockroom and receiving department of Astee, a contract manufacturing company. After several weeks, Belcher — who is five feet two inches tall, weighs 110 pounds and is fifty-two years old — found that she was physically unable to perform the work, which required her to lift heavy boxes. She quit her job and sought unemployment. She was awarded benefits on the basis that she quit the job with “good cause” attributable to the employer.

Belcher’s employer, Spherion Atlantic Resources, LLC [“Spherion”], appealed the award. At a hearing before the appeals referee, Belcher testified that when she was hired shé was told she would be in charge of the stockroom and receiving, and was unaware that she would be the only employee in the stockroom. She thought she was being hired as a supervisor because, in her previous employment, she had fourteen years experience in management. . She was unaware the job required her to perform manual labor. She testified that the job involved physically handling bulk supplies and was beyond her physical capabilities. She testified to backaches and bruising caused by her efforts to perform the job. • ■

In his final order, the appeals referee affirmed the initial award. He found as a factual matter that Belcher was physically unable to do the heavy lifting required by her job and that she faced serious physical harm if she continued in her employment. He noted that the employer had not only failed to provide her assistance in performing her duties, but had prohibited male employees from assisting her, which he found “demonstrated a lack of concern for the claimant’s working conditions and safety” and gave her “good cause” attributable to her employer for voluntarily leaving her employment.

Spherion appealed to the UAC, which reversed the award. The UAC apparently found no evidence to support the conclusion that the employer lacked concern for Belcher’s safety, emphasizing that there was no testimony that male employees had been prohibited from assisting Belcher or that a physician advised her to find other, less physically demanding employment. The UAC also found that Belcher had never “asked her supervisor for assistance” and concluded that benefits should be denied because Belcher had failed to expend-reasonable efforts to preserve her employment.

Section 443.101(l)(a), Florida Statutes (2002), provides that individuals seeking unemployment compensation benefits shall be disqualified when they leave employment voluntarily, without “good cause” attributable to the employer. Good cause has been defined as “those circumstances which would compel the average able-bodied, qualified worker to give up his or her employment.” Brown v. Unemployment Appeals Comm’n, 633 So.2d 36 (Fla. 5th DCA 1994). Whether an individual voluntarily left employment for “good cause” is a question of fact to be determined by an appeals referee. See Gfrorer v. Unemployment Appeals Comm’n, 864 So.2d 1290 (Fla. 5th DCA 2004); see also San Roman v. Unemployment Appeals Comm’n, 711 So.2d 93, 95 (Fla. 4th DCA 1998) (“good cause” is mixed question of law and fact or ultimate fact best left to factfinder). The decision made by the appeals referee concerning the existence of “good cause” must be affirmed by the UAC if it is based on competent, substantial evidence and the proceedings complied with the essential requirements of the law. Kloepper v. Unemployment Appeals Comm’n, 871 So.2d 997 (Fla. 5th DCA 2004).

In this case, -the appeals referee found as a factual matter that Belcher was physically unable to do the heavy lifting required by her job and that she faced serious physical harm if she continued in her employment. These findings are supported by competent substantial evidence in the record, in the form of Belcher’s uncontroverted testimony that she was unable to perform her job-and suffered bruises and backaches. They also support the referee’s determination that “good cause” attributable to the employer existed for Belcher to terminate her employment. The physical inability to perform a job constitutes good cause for separation from employment which is attributable to the employer. See Krulla v. Barnett Bank, 629 So.2d 1005 (Fla. 4th DCA 1993); Gottardi v. Joaquin General Distributors, Inc., 618 So.2d 363 (Fla. 3d DCA 1993). Florida courts also recognize that a reasonable fear for one’s personal safety or health is good cause for leaving employment. Spangler v. Unemployment Appeals Comm’n, 632 So.2d 98 (Fla. 5th DCA 1994); Tannariello v. Federation of Public Employees, 437 So.2d 799 (Fla. 4th DCA 1983).

In reaching his holding, the appeals referee admittedly did make a factual finding that was not supported by any evidence— that Belcher’s “physician had advised her to find other, less physically demanding employment.” The UAC was entitled to reject this finding, as it was not supported by any evidence. However, the remaining findings made by the referee — including findings that the job was beyond Belcher’s physical capacity and posed a risk of physical harm to Belcher — were supported by the evidence and, as in Gottardi, support the award of benefits to Belcher.

In reversing the referee’s decision, the UAC relied in part on its conclusion that Belcher failed to make “reasonable efforts to preserve” her employment. ■ The UAC found that the claimant had not asked her supervisor for assistance in lifting packages and that she had not gone to Spher-ion or anyone at Astee above the level of her supervisor to complain about her working conditions. This was not a requirement. Although a “reasonable effort to preserve employment” has . been ■ required in some cases in which the employee had been accused of some misconduct and failed to exhaust available grievance procedures, it logically does not control a case such as this. See Kralj v. Florida Unemployment Appeals Comm’n, 537 So.2d 201 (Fla. 2d DCA 1989); Board of County Commissioners v. Florida Dep’t of Commerce, 370 So.2d 1209 (Fla. 2d DCA 1979).

REVERSED AND REMANDED with directions to reinstate the decision of the appeals referee.

THOMPSON and ORFINGER, JJ., concur. . ,'

      . Spherion provided . either ministerial services to Astee or leased Certain employees to Astee. Belcher testified that she was unaware of the relationship with Spherion and thought that she was employed by Astee. She explained that she was hired during an interview at Astee, and her only known supervisor was an Astee employee. Spherion's representative testified that Astee even retained the right to do its own hiring and firing. Astee simply called Spherion to inform them that an employee had been hiréd.


author: ORFINGER, J.

text:
    Melvin PEREZ, Petitioner, v. CIRCUIT COURT FOR OSCEOLA COUNTY, Florida, Respondent.
    No. 5D04-2509.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.
    Melvin Perez, Jasper, Pro Se.
    No Appearance for Respondent.
   ORFINGER, J.

Melvin Perez petitions this court for a writ of mandamus, seeking to compel the trial court to rule on his petition for in-junctive relief filed against the Osceola County Department of Corrections. We deny the petition as it fails, to allege that Perez has made the trial court aware of the pending action.

In a civil proceeding, it is generally necessary to bring a pending matter to the trial court’s attention. See Al-Hakim v. State, 783 So.2d 293, 294 (Fla. 5th DCA 2001). For purposes of seeking a hearing, it is of no consequence that the petitioner is incarcerated or involuntarily committed. Although Perez is incarcerated, he could attend a telephonic hearing should the trial court to decide to hold one. See Gosby v. Third Judicial Circuit, 586 So.2d 1056 (Fla.1991) (stating that trial court has discretion to decide whether to hold a telephonic hearing in prisoner’s civil case, but may not make a prisoner’s physical presence a condition precedent to ruling on pending matters). Accordingly, we deny Perez’s petition for a writ of mandamus without prejudice. Perez must first make the trial court aware of his pending action and seek a hearing.

MANDAMUS DENIED WITHOUT PREJUDICE.

PALMER and MONACO, JJ., concur.


text:
    Rusum D. PRASAD and Eileen R. Prasad, Petitioner, v. Wayne M. TURNER, Respondent.
    No. 5D04-1432.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.
    Thomas C. Smith of Eubank, Hassell & Moorhead, Daytona Beach, for Petitioners.
    Christian A. Lindbaek of Alpizar & Ville, Palm Bay, for Respondent.
   SHARP, W., J.

Rusum and Eileen Prasad seek certiora-ri review of discovery orders which granted their request for a compulsory medical examination of Wayne Turner (the plaintiff in a personal injury case in which the Prasads are defendants) by a designated orthopaedic surgeon,, but which denied their request for an additional compulsory medical examination of the plaintiff by a designated neurologist. We deny the petition because it fails to establish irreparable injury on the part of petitioners.

Petitioners also request, in the event this court denies their petition, that we strike the trial court’s order which granted their request for an IME examination by a designated orthopaedic surgeon. They assert that this will then allow them flexibility to name a different physician who may have the expertise to address Turner’s physical, as well as his neurologic injuries.

The order under review permits one IME examination and does not preclude discovery by the Prasads of other medical records relating to Turner’s medical condition. If they are unable to obtain the information they require in order to be afforded a fair trial through discovery or through the IME examination, they are without prejudice to file an additional petition in this court, which establishes and demonstrates irreparable harm.

Petition for Writ of Certiorari DENIED.

GRIFFIN, J., concurs.

ORFINGER, J., concurs in result only.


author: PER CURIAM.

text:
    Clarence O. GREEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2216.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.
    Clarence O. Green, Jr., Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to Appellant to file a legally sufficient motion under Rule 3.800(a). See Rose v. State, 871 So.2d 1044 (Fla. 5th DCA 2004).

PETERSON, PALMER and TORPY, JJ., concur. • ■


text:
    D.W., Mother of E.W. and J.J., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D04-128.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   GRIFFIN, J.

D.W., mother of E.W. and J.J., appeals an order requiring her to pay temporary child support to the State of Florida, Department of Children and Families [“the Department”], pending an adjudication of dependency. We reverse.

D.W.’s two children were taken into custody by the Department on October 14, 2003. At the shelter hearing, D.W. submitted a financial affidavit to the court which indicated that she was unemployed and had no assets. Payment of temporary child support by D.W. was not discussed at the hearing, nor was it addressed in the October 15, 2003, order issued as a result of the shelter hearing.

Nearly one month later, the trial court entered an order requiring D.W. to pay temporary child support to the Department in the amount of $320.20 per month. The order was filed in the domestic relations division under Case No. DR-03-DJ-4489. The court also entered an income deduction order against D.W. in favor of the Department.

D.W. complains that the temporary support order was entered at a “secret meeting,” held subsequent to the shelter hearing, without notice and a hearing, in violation of her right to procedural due process. She further contends that this is a dependency action under chapter 39 and that chapter 39 does not permit an award of child support, even temporarily, until after a child has been adjudicated dependent and there is a disposition.

In R.M. v. Department of Children and Families, 877 So.2d 797 (Fla. 5th DCA 2004), this court rejected the contention that chapter 39 does not permit an award of temporary child support prior to an adjudication of dependency. Instead, this court found that such an award was authorized by section 39.402(11), Florida Statutes, which provides that in its shelter hearing order the trial court “shall require” parents who are possessed of sufficient assets to pay “fees” as established by the Department for the “care, support, and maintenance” of a child who has been placed in shelter care. 877 at 799. However, in R.M., the court held that a parent must be afforded notice and an opportunity to be heard regarding the amount of the assessment, and reversed a temporary child support order entered against a seemingly indigent father subsequent to the shelter hearing because of the lack of opportunity to be heard. Id.

This case is indistinguishable from both R.M. and the companion case of L.O. v. Department of Children and Families, 876 So.2d 1292 (Fla. 5th DCA 2004). All of these cases involve substantially the same procedure, as well as the same trial judge. As in those cases, we reverse and remand for a properly noticed hearing that, complies with the requirements of procedural due process.

These cases also appear to share a procedural oddity, in that the order requiring payment of temporary' child support was ostensibly entered under an entirely separate case number in the domestic relations division, not in the dependency. Counsel in L.O. explained that this was done as a matter of administrative convenience, apparently for enforceihent purposes. Consistent with this representátion, the entire record in the domestic relations case consists of no more than the temporary child support order and income deduction orders now on appeal. This procedure has neither been explained nor challenged.

There may be a legal basis for the support order entered by the trial court apart from chapter 39. For example, chapter 409 provides independent authorization for the collection of child support from noncustodial parents by the Department of Revenue.' In certain cases involving the administrative establishment of child support, the chapter even permits thé imputation of income in an amount equal to the federal minimum wage. See § 409.2563(5), Fla. Stat. However, if such a procedure were contemplated in this case, we are unable to discern it from the order issued by the trial court, which is silent as to the basis on which it was imposed. Given the state of the record and the order’s lack of explication, we follow R.M., reverse the order under review, and remand for a properly noticed hearing on the issue of the award of temporary child support.

REVERSED ahd REMANDED.

PETERSON and PALMER, JJ„ concur.


text:
    Felix ALMENARES, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-730.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      Felix Almenares, Bowling Green, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

PALMER, J.

We grant the motion for rehearing filed by the State, withdraw our prior opinion, and issue the following in its place. Felix Almenares appeals the trial court’s summary denial of his rule 3.800(a) motion. In his motion, Almenares challenged the three-year mandatory minimum sentence which was imposed on his conspiracy to traffic in cocaine conviction pursuant to the sentencing enhancements set forth in Chapter 99-188 of the Florida Statutes, arguing that the sentence is illegal because Chapter 99-188 has been held unconstitutional. Because, in denying Almenares’ rule 3.800 motion, the trial court relied upon a decision from which this court has since receded, we reverse.

Initially, the trial court denied Almenares’ rule 3.800(a) motion, properly relying on this court’s decision in Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), which held that the defect in Chapter 99-188 was retroactively cured. However, this court recently receded from Hersey in Jones v. State, 872 So.2d 938 (Fla. 5th DCA 2004) and held that retroactive application of the reenacted statute was prohibited. Accordingly, Almenares’ sentence is illegal.

However, the State argues that Almenares is not entitled to receive post-conviction relief because his sentence was entered pursuant to a plea agreement. We disagree. Even though Jones involved a plea bargained sentence, this court directed that the sentence be corrected under rule 3.800(a) because a defendant cannot be bound by an agreement to accept an illegal sentence. Nonetheless, Almenares is not entitled to automatic resentencing. If, as the State alleges, his sentence was the result of a negotiated plea agreement in which the State agreed to reduce the charges, the State must be given the option on remand to agree to a legal sentence or to withdraw from the plea agreement and proceed to trial on the original charges. See, Wallen v. State, 877 So.2d 737, 29 Fla. L. Weekly D1059 (Fla. 5th DCA April 30, 2004); Barthel v. State, 862 So.2d 28 (Fla. 2d DCA 2003).

We reverse the trial court’s denial of Almenares’ rule 3.800 motion and remand this matter to the trial court for further proceedings. We further certify conflict with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), rev. granted, 854 So.2d 659 (Fla.2003), which held that Chapter 99-188 does not violate the single subject rule.

REVERSED and REMANDED.

SAWAYA, C.J. and PLEUS, J., concur.

      . See Fla. R.Crim. P. 3.800.

      . The State argues that this appeal should be held in abeyance because the issues of the constitutionality of Chapter 99-188 and whether it was retroactively cured are presently pending in the Florida Supreme Court. See Green v. State, 839 So.2d 748 (Fla. 2d DCA), rev. granted Franklin v. State, 854 So.2d 659 (Fla.2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), rev. granted, 854 So.2d 659 (Fla.2003). We reject this argument because there is no way of knowing how long the case will be pending before the Supreme Court.


text:
    Martin DRAGOMIRECKY, Appellant, v. TOWN OF PONCE INLET, Florida, Appellee.
    No. 5D04-591.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      Patrick T. Canan of Canan Law, St. Augustine, and Deborah J. Andrews, Ponte Vedra Beach, for Appellant.
    Theodore R. Doran, Michael G. Dyer, and Audrie M. Harris of Doran, Wolfe, Rost & Ansay, Daytona Beach, for Appel-lee.
   PER CURIAM.

Martin Dragomirecky appeals a non-final order denying his motion for injunction and alternative motion to stay the demolition of a house he has been constructing in Ponce Inlet, Florida, over a period of approximately five years.

The Town of Ponce Inlet issued a stop work order on July 11, 2002, alleging that Dragomirecky failed to construct the house in accordance with applicable building codes thereby rendering the new construction unsafe. The stop work order was followed by a notice that the building was unsafe and an order to vacate and demolish on November 27, 2002. The demolition order was based upon a code violation report that identified approximately 151 violations of building codes including, inter alia, use of inadequate weight-bearing structural components, improper installation of electric, plumbing and ventilation systems and significant structural deviation from the approved building design. Apparently, Dragomirecky decided to add a third story to the construction that deviated from the original plans.

Dragomirecky appealed to the Board of Adjustments and Appeals of the Unsafe Abatement Code, (“Board”), a specialized review board composed of five professionals trained in the areas of civil engineering, architectural and general contracting. The Board held eight evidentiary hearings and concluded that the house must be vacated and demolished.

Next, Dragomirecky unsuccessfully petitioned the circuit court for a writ of certio-rari to review the Board’s final order and also requested a preliminary injunction and a stay to prevent the Town of Ponce Inlet from demolishing his house.

A preliminary injunction is an extraordinary remedy which should be granted only if the party seeking the injunction establishes the following criteria: (1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) consideration of the public interest. E.g., Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002). A trial court’s denial of a preliminary injunction comes to the appellate court with a presumption of correctness, and is reversible only upon a showing of a clear abuse of discretion. E.g., Rollins, Inc. v. Parker, 755 So.2d 839 (Fla. 5th DCA 2000); Mercer v. Raine, 443 So.2d 944 (Fla.1983). Where the potential injury to the public outweighs an individual’s right to relief, the injunction will be denied. E.g., City of Ormond Beach v. City of Daytona Beach, 794 So.2d 660 (Fla. 5th DCA 2001); Hall v. City of Orlando, 555 So.2d 963 (Fla. 5th DCA 1990).

Dragomirecky insists that he established the criteria required by Yardley. We disagree. His assertion that if the house is demolished irreparable harm will result because all evidence of his alleged compliance with budding codes will be lost is unpersuasive in view of the eight eviden-tiary hearings held before the Board that are replete with exhibits, photographs and expert testimony. It is true that he will be financially harmed if demolition occurs, but the law permits such harm when it results from a valid exercise of police power. See, e.g., Thomas v. City of West Palm Beach, 299 So.2d 11 (Fla.1974) (holding that an ordinance which delegated to building official discretion to demolish a dwelling unfit or unsafe for human habitation was a valid and constitutional exercise of city’s police power where the reasonableness and relationship of the ordinance to the public health, safety and welfare was fairly debatable). Regulations duly enacted pursuant to lawful authority that relate to the public health, safety, morals or general welfare are presumptively valid. E.g., Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee, 111 So.2d 439, 443, 444 (Fla.1959). Courts should not substitute their judgment as to the reasonableness of a regulation when such reasonableness is fairly debatable.

Finally, a substantial likelihood of success on the merits has not been demonstrated. The Board found that substantial competent evidence was presented to demonstrate that Dragomirecky’s efforts at building his house over a period of five years resulted in a building that was unsafe, dangerous to human life and in violation of unchallenged code regulations.

The trial court’s order denying the injunction and stay did not depart from the essential requirements of law and does not constitute an abuse of discretion. We therefore affirm the denials.

AFFIRMED.

SAWAYA, C.J., SHARP, W., and PETERSON, JJ., concur.


author: KLEIN, J.

text:
    Robert C. McCREERY, individually, and Wilhelm’s Rattan, Inc., a Florida corporation, Petitioners, v. Nita Darlene FERNANDEZ, as Personal Representative of the Estate of Erin Mercedes Fernandez, Respondent.
    No. 4D04-3246.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2004.
    Rehearing Denied Oct. 15, 2004.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for petitioners.
    Searcy, Denney, Scarola, Barnhart & Shipley, P.A., and Dirán V. Seropian of Edna L. Caruso, P.A., West Palm Beach, for respondent.
   KLEIN, J.

Petitioner is a defendant in an accident case in which it is alleged he negligently caused a wrongful death. The accident also resulted in pending felony charges against petitioner. The petitioner argues that -the trial court departed from the essential requirements of law in denying his motion for continuance of the trial in the civil case because the pending felony charges will require him to invoke his Fifth Amendment privilege against self-incrimination when being questioned in the civil case.

Petitioner cites Fraser v. Security and Investment Corp., 615 So.2d 841 (Fla. 4th DCA 1993), in which we recognized that it was not error in a civil case to permit a jury to draw an adverse inference from- a party’s silence, even though the reason for the silence is a pending criminal case. We observed that, where criminal charges are pending, it may be necessary to continue a civil case because of pending criminal charges, citing Kerben v. Intercontinental Bank, 573 So.2d 976 (Fla. 5th DCA 1991).

Although the denial of the continuance may well have, been a departure from the essential requirements of law, petitioner has failed to demonstrate that he has no adequate remedy on final appeal. Katz v. N.M.E. Hosps., Inc., 842 So.2d 853 (Fla. 4th DCA 2002). The denial of a motion for continuance of a civil trial under these circumstances would be correctable on a final appeal because it would be reversible under Fleming v. Fleming, 710 So.2d 601, 603 (Fla. 4th DCA 1998), in which we set forth the factors to be considered:

[1] whether the denial of the continuance creates an injustice for the movant; [2] whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and [3] whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance.

Petition dismissed.

SHAHOOD and MAY, JJ., concur.


author: BENTON, J.

text:
    Lucia Faye HENDERSON, former wife, Appellant, v. Michael Rex HENDERSON, former husband, Appellee.
    No. 1D03-3665.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    H. Guy Green, Esquire of the Green Law Firm, Marianna, for Appellant.
    H. Matthew Fuqua, Esquire of Bondu-rant & Fuqua, Marianna, for Appellee.
   BENTON, J.

Lucia Faye Henderson appeals the dismissal with prejudice of her petition to modify the order requiring Michael Rex Henderson to contribute to the support of their child. We reverse and remand with directions that she be allowed to amend the petition to modify.

When the parties’ marriage was dissolved, Mr. Henderson was ordered to make child support payments until his daughter’s eighteenth birthday. Thereafter, Mrs. Henderson filed a petition to modify, alleging that the parties’ then eighteen-year-old daughter was still in high school, with a reasonable expectation of graduating in May of 2003, before her nineteenth birthday. “A parent of a dependent, adult child is the proper party to seek support for that child.” Smith v. Smith, 495 So.2d 886, 886 (Fla. 2d DCA 1986); accord Sprunger v. Sprunger, 534 So.2d 925, 926 (Fla. 4th DCA 1988). But see Taylor v. Bonsall, 875 So.2d 705, 709-10 (Fla. 5th DCA 2004); Brown v. Brown, 714 So.2d 475, 477 (Fla. 5th DCA 1998).

Section 743.07(2), Florida Statutes (2003), which is to be read in conjunction with chapter 61 of the Florida Statutes as it relates to child support, see Wattenbarger v. Wattenbarger, 767 So.2d 1172, 1173 (Fla.2000), provides:

This section shall not prohibit any. court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 ... if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.

These statutes “should be interpreted liberally in order to provide such support, thereby mitigating any potential harm to the child resulting from the lack of support.” Hill v. Hooten, 776 So.2d 1004, 1008 (Fla. 5th DCA 2001).

While the petition was technically deficient — for one thing, no financial affidavit was attached, as required by section 61.30(14), Florida Statutes (2003) — dismissal without leave to amend was not justified. See Owens v. Ridley, 870 So.2d 886, 887 (Fla. 1st DCA 2004); Obenschain v. Williams, 750 So.2d 771, 772-73 (Fla. 1st DCA 2000); see also Bator v. Osborne, 799 So.2d 263, 264 (Fla. 2d DCA 2001) (reversing “without prejudice to Osborne’s filing a proper petition for modification along with the required affidavit, so that the court may properly recalculate the parties’ child support obligations in accord with the statute and the facts”).

Accordingly, we reverse and remand with directions that Lucia Faye Henderson be allowed to file an amended petition for modification of child support, which would relate back to the date on which the original modification petition was filed. See Fla. Fam. L.R.P. 12.190; Fla. R. Civ. P. 1.190(c). See also § 61.14(l)(a), Fla. Stat. (2003) (“[T]he court may modify an order of support ... retroactively to the date of the filing of the action ... for modification....”); Robinson v. Robinson, 657 So.2d 958, 960 (Fla. 1st DCA 1995) (holding “that the trial court abused its discretion in failing to make the order granting increased child support retroactive to the date of the filing of the petition for modification because the undisputed evidence demonstrate^] the need for support, and the husband’s ability to pay existed at the time of the filing of the petition”).

Reversed and remanded.

BROWNING and POLSTON, JJ., concur.


text:
    Daniel Kevin SCHMIDT, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D00-4166.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.

      Daniel Kevin Schmidt, pro se.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of prohibition is denied as moot. See Schmidt v. Crusoe, 878 So.2d 361, (Fla.2003), reh’g denied (Fla. July 14, 2004).

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    DEPARTMENT OF HEALTH, BOARD OF DENTISTRY, Petitioner, v. Robert H. BARR, D.M.D., Respondent.
    No. 1D04-3094.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Dana Baird, Senior Attorney, Department of Health, Tallahassee, for petitioner.
    Fred M. Johnson of Fuller, Johnson & Farrell, P.A., Tallahassee, for respondent.
   PER CURIAM.

Petitioner filed a petition for writ of prohibition with this court seeking to restrain the circuit court from exercising jurisdiction and considering a petition for writ of prohibition filed by respondent to prohibit petitioner from continuing disciplinary proceedings against him. We grant the petition and find that jurisdiction is properly in this court.

The circuit court does not have jurisdiction to issue an extraordinary writ if it does not have direct appellate jurisdiction over the subject matter. See Florida Dep’t of Community Affairs v. Escambia County, 582 So.2d 1237 (Fla. 1st DCA 1991); State ex rel. Bettendorf v. Martin County Env. Control, 564 So.2d 1227 (Fla. 4th DCA 1990). An extraordinary writ challenging matters in an administrative action is properly filed in this court, not the circuit court. Escambia County, 582 So.2d at 1239; see also § 120.68(2)(a), Fla. Stat. (2001); Philip J. Padovano, Florida Appellate Practice § 28.3 (2004 ed.)(“A circuit judge cannot properly issue a writ of prohibition directed to a tribunal that is subject to the administrative procedures act because the district court of appeal would have exclusive jurisdiction over the substantive issues on appeal from the order in such a case.”).

In the instant case, respondent filed a petition for writ of prohibition in the circuit court, seeking a determination under section 456.073(2), Florida Statutes, that the Department’s failure to adhere to the time limitations materially impaired the fairness and correctness of the administrative proceedings. As this court held in Escambia County, this court has appellate review over the instant subject matter. Therefore, the circuit court lacks jurisdiction to grant respondent’s petition. Accordingly, the petition for writ of prohibition is granted.

PETITION GRANTED.

BARFIELD, VAN NORTWICK and PADOVANO, JJ., concur.


text:
    Greg T. IGO, Appellant, v. CITY OF ST. PETERSBURG and City of St. Petersburg Workers’ Compensation Department, Appellees.
    No. 1D04-3101.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Joey D. Oquist of Joey D. Oquist & Associates, P.A., St. Petersburg, for appellant. ■ •
    No appearance for appellees.
   PER CURIAM.

Because the workers’ compensation order on appeal merely grants a motion, this appeal is dismissed for lack of jurisdiction.

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    Khalid Al-ENAZI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3623.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Heather M. Gray of Bodiford and Ca-mareno, P.A., Tampa, for petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied as untimely. See Fla. R.App. P. 9.141(c)(4)(B).

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    Orlando REED, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2682.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    Louis Casuso, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: STEVENSON; J.

text:
    Marc OSHEROFF and Osheroff Wittels Family Corp., a Florida corporation, Appellants, v. RAUCH WEAVER MILLSAPS & CO., a Florida corporation, Maddux & Co., a Florida corporation, Frassetto Properties Partnership, a New Jersey general partnership, and Salvatore V. Frassetto, both individually and as a general partner of Frassetto Properties Partnership, Appellees.
    No. 4D02-5077.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.

      Steven M. Katzman of Katzman, Was-serman & Bénnardini, P.A., Boca Raton, for appellants.
    Robert P. Frankel of Robert P. Frankel & Associates, PiA., Miami, for appellees Rauch Weaver Millsaps & Co. and Maddux & Co.
   ON MOTION FOR REHEARING

STEVENSON; J.

We deny the motion for rehearing, but in clarification, we withdraw the original opinion filed on May 12, 2004, and substitute the following in its place.

This is an appeal from a jury verdict and final judgment entered in favor of the brokers in a lawsuit alleging failure to pay the real estate brokers’ commission against the sellers, tortious interference with an advantageous business relationship against the buyers, and civil conspiracy against the buyers and sellers. We affirm in part and reverse in part.

In summary, the seller, Frassetto Properties Partnership (“FPP”), a New Jersey general partnership, had signed a listing agreement with the brokerage firm of Rauch, Weaver, Millsaps & Co. (“Rauch Weaver”) to negotiate a sale for property which consisted of 9.7 acres located in Plantation, Florida. After the written agreement expired, Rauch Weaver continued to “show” the property with FPP’s consent. Subsequently, the property was shown to Marc Osheroff by Michael. Stern, a licensed real estate broker with appellee, Maddux & Co. Osheroff, through Stern and Rauch Weaver, attempted to negotiate a contract to purchase the property on behalf of Osheroff Wittels Family Corporation (“OWFC”). After several months of discussions, the negotiations stalled and did not result in a completed contract. Approximately fourteen months later, Osh-eroff and FPP struck a deal of their own for Osheroff to purchase the property.

After Rauch Weaver and Maddux & Co. (“the brokers”) found out about the contract, they filed this lawsuit against FPP and Salvatore V. Frassetto (hereinafter referred to as “the sellers” or “the Frassetto defendants”) and Marc Osheroff and Osh-eroff Wittels Family Corp. (“the buyers” or “the Osheroff defendants”). The case went to trial on a three-count complaint filed by the brokers and a counterclaim filed by the Osheroff defendants. On count I, the jury found that the Frassetto defendants breached the real estate contract and awarded the brokers $60,000 in damages. On count II, the jury found that the Osheroff defendants tortiously interfered with the brokers’ contract with the sellers and awarded the brokers $50,000 in damages. Finally, on count III, the jury found that the Osheroff defendants and the Frassetto defendants conspired to deprive the brokers of their real estate commission and awarded the brokers $20,000 in damages. On the counterclaim, the jury found that the brokers made negligent misrepresentations during the course of the contract negotiations and awarded the Osheroff defendants nominal damages in the amount of $1.00.

After the jury returned its verdict, the Osheroff defendants filed a motion for directed verdict, or to set aside the verdict, or, alternatively, for a new trial. Before the hearing on the post-trial motions, the brokers and sellers settled, with the sellers agreeing to pay the brokers $50,000 to settle their claims. The trial court subsequently denied the post-trial motions, and later entered a final judgment in favor of the brokers and against the remaining defendants (the Osheroff defendants) in the total sum of $70,000 plus prejudgment interest totaling $17,471.58.

The brokers’ claim for a commission

The law in this area has been well established for quite some time, although its application to a given set of facts is a bit more troublesome. In Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, 878 (1944), the court explained that a broker with a non-exclusive listing will be entitled to a commission as the procuring cause, “[i]f the broker has brought the parties together and a sale is effected as a result of continuous negotiations inaugurated by him.” In order to be entitled to the commission, the “continuous negotiations” between the seller and buyer must be conducted and orchestrated by the broker. See Shuler v. Allen, 76 So.2d 879, 883 (Fla.1955). If the broker abandons his attempts to bring the parties together and they later reach a deal on their own, the broker is not entitled to a commission. However, if the seller and buyer intentionally exclude the broker from the negotiations and then strike a deal, the broker is still entitled to a commission. See Sheldon Greene & Assocs., Inc. v. Rosinda Invs., N.V., 475 So.2d 925, 927 (Fla. 3d DCA 1985); Nat’l Airlines, Inc. v. Oscar E. Dooly Assocs., Inc., 160 So.2d 53 (Fla. 3d DCA 1964).

Here, although largely circumstantial, wé find that there was substantial competent evidence in the record to support the verdict in all respects. See, e.g., Easton-Babcock & Assocs., Inc. v. Fernandez, 706 So.2d 916 (Fla. 3d DCA 1998)(whether a broker is the procuring cause of a sale is a question of fact that the jury must determine from the surrounding circumstances). The buyers and sellers declared that continued negotiation to reach an agreement was fruitless in October of 1996, but later reached a deal of their own without the brokers’ involvement some fourteen months later. The jury heard the testimony, saw the witnesses and resolved the questions of credibility and fact in favor of the brokers. Reasonable inferences from the evidence, including discrepancies in the testimony concerning when the principals went into action again after ostensibly having given up on reaching an agreement, could have led the jury to conclude that Osheroff s claim that he had abandoned all interest in the property after the first deal collapsed was less than credible. See Sheldon Greene, 475 So.2d at 928 (finding liability for broker’s commission where the broker showed a hotel property twice to the purchasers who said they were not interested in the property, yet a year later contacted the owner directly and purchased the hotel).

The setoff issue

To recap, the jury awarded $60,000 in favor of the brokers and against the sellers (the Frassetto defendants) on count I, breach of the real estate contract; $50,000 in favor of the brokers and against the buyers (the Osheroff defendants) on count II, tortious ■ interference; and $20,000 in favor of the brokers and against the buyers and sellers, together, on count III, conspiracy to deprive the- brokers of their commission. The brokers settled with the sellers for $50,000 altogether. The Osher-off defendants claim that the $50,000 paid by the sellers should be setoff against the $50,000 tortious interference award, and the $20,000 civil conspiracy award, assessed against them as buyers. The Osh-eroff defendants argue that these awards were all predicated on a single and identical economic injury, i.e., the loss of the real estate commission, and that to deny setoff of the $50,000 settlement paid by the sellers would allow a double recovery.

. The,Osheroff defendants’ claim for setoff, of the sellers? $50,000 settlement against the damages awarded against them on the tortious interference claim fails for a number of reasons. Our supreme court recently noted ,that: ■

Florida law regarding setoffs is found in sections 46.015(2), 768.041(2), and 768.81(5), Florida Statutes (1997). Each of these statutes presupposes the existence of multiple defendants jointly and severally hable for the same damages. See Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659. So.2d 249, 253 (Fla.1995).

D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003)(footnotes omitted). The Osheroff defendants cannot be jointly liable with the Frassetto defendants for any breach of contract claim because the Osheroff defendants had no agreement with the brokers to be responsible for any brokerage fees. On the other hand, the Fras-setto defendants cannot be jointly liable with the Osheroff defendants on the tor-tious interference claim since the Frasset-to defendants were a party to the contract.

Additionally, this court has held that the settlement of a breach of contract action does not preclude recovery on a tortious interference claim involving the same contract because while the damages recoverable by each cause of action are overlapping, they are not necessarily coextensive. See Wright v. Nigh, 399 So.2d 515 (Fla. 4th DCA 1981). In the instant case, the Osheroff defendants failed to demonstrate that all of the legally recoverable losses that the brokers sustained due to both the breach of contract claim and the tortious interference claim were covered by the sellers’ $50,000 settlement and the $50,000 judgment awarded against the Osheroff defendants. See §§ 46.015(2), 768.041, 768.31, Fla. Stat.; see also NationsBank, N.A. v. KPMG Peat Marwick LLP, 813 So.2d 964 (Fla. 4th DCA), review denied, 835 So.2d 267 (Fla.2002); Bisaccio v. Brown, 366 So.2d 510 (Fla. 2d DCA 1979). Of note, the breach of contract claim against the sellers included a demand for attorney’s fees, whereas the tortious interference claim against the Osheroff defendants did not.

Nevertheless, the Osheroff defendants raise an additional, meritorious argument with respect to the civil conspiracy claim. Here, the Osheroff defendants maintain that the civil conspiracy and tor-tious interference claims encompassed the same damages. We have examined the pleadings and the argument made by the brokers at trial and agree with the Osher-off defendants on this issue. “Where a complaint claims damages in two counts based on the same facts, only one cause of action is alleged despite the fact that the second count charges a civil conspiracy to commit the tortious acts, and only one recovery is permissible.” Fish v. Adams, 401 So.2d 843, 846 (Fla. 5th DCA 1981). Here, there was no basis for the trial court to enter separate monetary judgments against the Osheroff defendants for both civil conspiracy to breach the contract and tortious interference with the contract. The brokers are entitled to judgment on the higher jury verdict which was reached on the tortious interference claim.

We have considered the other issues raised on appeal, but find no reversible error. Accordingly, the judgment on review is affirmed in part and reversed in part. We remand with instructions that the trial court amend the final judgment consistent with this opinion.

STONE and WARNER, JJ., concur.

      . We recognize, as the brokers argue, that the jury entered an award for separate amounts on the civil conspiracy claim and the tortious interference claim, which suggests that the jury may have taken it upon itself to apportion damages either between the parties or between the claims. Even if this were the case, the jury had no right to do so based on the evidence presented and the legal instructions given by the trial judge. See Air Fla., Inc. v. Hobbs, 477 So.2d 40 (Fla. 3d DCA 1985); Besett v. Basnett, 437 So.2d 172 (Fla. 2d DCA 1983).


author: WARNER, J.

text:
    Frank HUGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1016.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant. ■
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee. •
   WARNER, J.

Appellant, Frank Huggins, challenges his conviction of carrying a concealed weapon by a convicted felon, claiming that a suppression hearing was held when he was without counsel and that ■ the state committed a Brady violation by withholding fingerprint evidence that undermines confidence in the result. Because Huggins did not file a motion to suppress, absence of counsel at his co-defendants’ suppression hearing did not result in reversible error. Although the state concedes that it failed to disclose Brady material, appellant has not shown that'the fingerprint evidence would have placed the case in such a different light as to undermine confidence in the result, as the trial court was the finder of fact in this non-jury trial and the court announced that the fingerprint evidence would not have changed the result.

The police executed a search warrant at a residence where, they suspected that dog fighting was - occurring. When they entered the shed attached to the residence, fifty to sixty people were watching a dogfight. Agent Collister entered the ring first and saw Huggins to the right of the doorway. He noticed that Huggins’s shirt was untucked and there was a large bulge around his belt. Collister ordered Huggins to the ground and-used a leg sweep to bring him down. Huggins said he was afraid of - the dogs, so Collister grabbed him by the back of the belt and lifted him up, at which point Collister felt the belt give way and saw a firearm fall to the floor. Collister did not actually see where the gun came from, but he saw it falling from Huggins’s body. He was certain that no gun was on the ground prior to him bringing Huggins to the ground. After gaining possession of the gun and. lifting up Huggins, the bulge in his pants was gone. Collister was certain the gun came from Huggins’s belt line.

Huggins was charged with carrying a concealed weapon by a convicted felon and attending a dogfight. Two other defendants with charges relating to the dog fighting moved to suppress based upon the invalidity of the search warrant. Huggins’s counsel did not file a motion to suppress. Prior to the hearing on the motion, Huggins’s attorney withdrew, and Huggins personally appeared at the hearing on his co-defendants’ motions. He claims it was error for the trial court to proceed with the motions to suppress while he was unrepresented. However, the hearing on the motions was not a critical stage of the proceeding for him because he had not joined in the motions; he was merely present at the hearing. Although at the hearing the state suggested to the court that Huggins had no standing to contest the warrant because he was not a resident of the household, there was no order denying the motions to suppress with respect to Huggins. It was not reversible error to proceed with the co-defendants’ motions to suppress where Huggins was not represented by counsel.

Huggins waived a jury trial and proceeded to a. bench trial. Agent Collis-ter testified as to his observations at the dogfight. Additionally, a second deputy asserted that he saw the gun on the floor next to Huggins but did not see where it fell from. Counsel for Huggins cross-examined the officers regarding fingerprints on the gun. They testified that the gun was not tested for fingerprints. Three persons present at the dogfight testified for the defense that they did not see Huggins with a gun in his possession. In closing, Huggins’s counsel stressed the fact that Collister did not see the gun except on the floor, and the gun was not tested for fingerprints. The trial court found Huggins ‘guilty.

After the trial, new defense counsel discovered that the gun had in fact been tested for fingerprints. .A latent print was developed, which did not match Huggins’s prints or those of anyone else known to the police. Counsel moved for a new trial on the ground that the state’s failure to disclose Brady material prejudiced Huggins. At the hearing, an investigator testified to locating the fingerprint. The prosecutor, who had not known about the print which was in the possession of the sheriffs department, admitted that it should have been disclosed. He argued that the failure to disclose the print did not amount to prejudice under Brady because of the strong evidence presented by Agent Collis-ter who saw the gun fall from Huggins’s body as he moved Huggins. Further, the prosecutor argued that the absence of evidence of Huggins’s fingerprints on the gun could be explained in several ways. The judge agreed, and, as he was the trier of fact, concluded that the fingerprint evidence would make no difference in the result given the very positive testimony of the deputies. After sentencing, Huggins appealed his conviction.

Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). In Strickler v. Greene, 527 U.S. 263, 290, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Court explained,

As we made clear in Kyles, [v. Whitley, 514 U.S. 419, [115 S.Ct. 1555, 131 L.Ed.2d 490] (1995) ] the materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury’s conclusions. Id., at 434-435, 115 S.Ct. 1555. Rather, the question is whether “the favorable evidence could reasonably be taken to put the whole- case in such a different light as to undermine confidence in the verdict.”. Id., at 435, 115 S.Ct. 1555.

We cannot conclude that the fingerprint evidence, when placed against the strong testimony of Agent Collister who was positive that the gun dropped from Huggins’s waistband, would “put the whole case in such a different light as to undermine confidence in the verdict.” Id. This is particularly so in Huggins’s case, because the trial court, which was the trier of fact, determined this evidence would not have changed the result. Although at the hearing and on appeal, Huggins argued that had he known about the fingerprint evidence he would not have waived trial by jury, we can find no case in which a court reversed because the inclusion of Brady material would have changed counsel’s trial strategy and procedural choices. The question is whether there was a reasonable probability that the result would have been different. We cannot say that-it would.

Affirmed.

KLEIN and HAZOURI, JJ„ concur.