author: PER CURIAM. PETERSON, J.,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Wayne CANNON, et al., Appellees.
    No. 5D02-3039.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.
    Rehearing Denied Aug. 11, 2004.
    Daniel P. Osterndorf and Kenneth P. Hazouri, of DeBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellant.
    Kenneth J. McKenna and Samuel P. King, of Dellecker Wilson & King, Orlando, for Appellees.
   PER CURIAM.

AFFIRMED.

SAWAYA, C.J., and GRIFFIN, J., concur.

PETERSON, J., dissents, with opinion.

PETERSON, J.,

dissenting.

A jury found State Farm Mutual Automobile Insurance Company, (“State Farm”), liable to its insureds, Wayne and Bonnie Cannon, after Wayne Cannon, (“Wayne”), was injured in an automobile accident with an uninsured motorist. The accident occurred when Wayne’s truck was struck by an automobile driven by the uninsured motorist, Jorge Escalona, (“Es-caloña”), as Wayne proceeded into an intersection after stopping at a stop sign. Wayne’s intent was to cross a traffic lane and turn left to proceed up a hill when Escalona’s vehicle, traveling down the hill, struck his vehicle. The collision caused Wayne’s truck to overturn and he has no memory of how the accident occurred except that he remembered seeing Escalo-na’s vehicle just before impact.

Another driver witnessed the accident. He was also driving down the hill and passed Wayne while Wayne was beginning to move into the intersection. The independent witness remarked to his wife that he hoped the driver (Wayne) did not proceed into the intersection because he could see Escalona’s vehicle, in his rear view mirror, coming down the hill behind him. The witness testified that Escalona appeared to be speeding when Wayne drove into the intersection.

These facts raise the apparent issues of the comparative negligence of Wayne and Escalona and if the latter was found to be negligent, the consequential damages to Wayne. It is my view, however, that the jury’s focus was directed away from these issues due to the improper admission of a subrogation judgment against Escalona.

While the instant case was pending in the trial court, State Farm filed a subrogation claim against Escalona and the owner of the automobile driven by Escalona, in order to recoup a payment made to Wayne for property damage to the truck. Escalo-na and the owner stipulated to a final judgment in which the court found only that the two were indebted to State Farm. No finding was made on the issue of negligence. That judgment became a feature of the case between the Cannons and State Farm when State Farm filed its motion in limine to preclude introduction of the sub-rogation litigation. The Cannons had requested that the trial court take judicial notice of the subrogation litigation and invited State Farm to admit liability in order to avoid the Cannons’ presentation of evidence of State Farm’s inconsistent position by seeking subrogation against Escalona for the full amount of the property damage claim paid to Wayne and by defending against Wayne’s claim by denying Escalo-na’s negligence and affirmatively alleging comparative negligence. The transcript of the trial indicates that the court ruled the subrogation judgment admissible for the purported reason that it was an admission against interest by Escalona.

The trial court’s allowance of the subro-gation judgment formed the basis for the Cannons’ argument to the jury that State Farm admitted that Escalona was totally at fault. I interpret that argument to mean that because State Farm exercised its right of subrogation against Escalona, one must conclude that State Farm admitted that Escalona was at fault to the exclusion of any comparative negligence by Wayne. Indeed, in closing arguments, Wayne’s attorney stated:

Now, State Farm has admitted in this case that Jorge Escalona was negligent, and that Jorge Escalona’s negligence caused some harm, injury or damage to Wayne Cannon.
But State Farm wants you, at least in part, and perhaps in total, to blame Wayne for this wreck. Now, this is despite the fact that we’ve shown you, by virtue of the [subrogation] judgment in this case, that State Farm was willing to utilize the system to their end.
Jorge Escalona’s negligence, the driver of the white vehicle’s negligence, damaged Wayne Cannon’s person and it damaged his property, his truck. It totaled his truck.
State Farm paid Mr. Cannon for the full damage to his truck. State Farm, at that point in time, had been harmed by Mr. Escalona. They had been forced to go in their pocket and pay money based upon Mr. Escalona’s negligence.

State Farm objected to this argument and asked for a mistrial. The court denied State Farm’s objection and motion as well as post-trial motions for a new trial and to set aside the jury verdict.

It is my view that the trial court’s admission of the subrogation judgment was improper as well as the arguments made by the Cannons’ counsel that flowed from the improper admission of the subrogation judgment. State Farm’s objection and motion for mistrial should have been granted.

An automobile liability and casualty insurer takes on many roles when it issues a policy to its insured. It is a source of comfort to an insured who is sued by another because of the insured’s negligence or when medical payments or property damages are to be paid. An insurer can also be a foe under the uninsured motorist provisions of the policy when insurer and insured cannot agree upon the fault or degree of fault and damages sustained by the insured. In the instant case, Wayne and State Farm disagreed on fault and damages. Each of them had the absolute right to do so and a review of the facts leading to the accident allows one to easily arrive at a preliminary conclusion that each of the parties to the accident shared fault. The jury found otherwise and it is my contention that the subrogation judgment and the remarks to the jury materially affected the verdict.

The uninsured motorist who has no privity with the insurer can also look upon the insurer as friend or foe. A friend when the insurer who has a legitimate defense against a claim by the insured because of liability or damages issues or both is forced to assume the defenses of the uninsured motorist; or a foe when the uninsured motorist is named as a subrogation defendant after a property damage claim is paid by the insurer. Both the Cannons and Escalona found themselves to be both friend and foe of State Farm at various times in the instant case.

Should the insurer be prejudiced in assuming the role of plaintiff in a subrogation claim? The law of subrogation, the insurance contract, good business sense and lower insurance rates favor the claim against an uninsured motorist. In order to exercise the claim, an insurer’s complaint must allege the negligence of the uninsured motorist. Under the majority’s affirmance in this appeal, both the uninsured motorist and the insurer must suffer the consequences of avoiding costly litigation when the uninsured motorist consented to a money judgment without any admission of liability. The consequence being the subsequent use of that judgment as an admission against interest in an uninsured motorist action brought by the insured.

Amador v. Hernandez, 548 So.2d 849 (Fla. 3d DCA 1989), makes it clear that issues of liability in a contest between an insured and a tortfeasor must be tried vel non without reference to a prior disposition of property damage in a subrogation claim. I acknowledge the rule did not arise from an evidentiary issue, but it reflects the policy of this state.

The judicial system has traveled far from the early days when the mention of an insurance carrier during a jury trial was grounds for a mistrial. It is now clear that an insured is entitled to have their uninsured/underinsured carrier specially referred to as such when the carrier is joined as a party defendant. E.g., Lamz v. Geico General Insurance Company, 803 So.2d 593 (Fla.2001). The combination of Lamz and the result reached by the majority in this appeal now makes it difficult for the insurer providing uninsured motorist coverage to enforce its subrogation rights early for fear of being penalized for being inconsistent on its views of liability of its insured.

The ultimate decision to be made by a jury is the comparative negligence of the parties to an automobile accident based upon the facts leading to the accident. The decision should not be influenced by matters occurring in an insurer’s subrogation action to recover property damages which have no relation to the damages sought by the insured.

Even if the subrogation judgment was properly admitted into evidence as an admission against interest of Escalona, the judgment should not be used as grounds for an argument that State Farm admitted that Escalona, to the exclusion of Wayne, was wholly responsible for the accident. The subrogation judgment only allows entry of a dollar amount against Escalona in favor of State Farm. There is no evidence in the record that explains the details behind the subrogation judgment. The jury had to rely solely on the Cannons’ counsel’s argument for an explanation of the purported significance of the subrogation judgment published to the jury. The resulting final judgment should be vacated and a new trial ordered that allows the jury to render a verdict based upon the facts leading to the collision and the consequential damages without being influenced by a judgment entered in the insurer’s subrogation litigation as supplemented by arguments unsupported by the record.

      . Inexplicably, neither side to this controversy subpoenaed Escalona for trial and he did not appear.

      . I have never seen a subrogation complaint that alleges that the insured was partially at fault and seeks less than the full amount of the property damage. Allegations of negligence on the part of the insured are made in affirmative defenses by the defendant.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carolyn R. FRENGEL, Petitioner, v. Daniel W. FRENGEL, Respondent.
    No. 2D04-1845.
    District Court of Appeal of Florida, Second District.
    June 9, 2004.
    R. Ray Brooks, Tampa, for Petitioner.
    Philip S. Wartenberg, Tampa, for Respondent.
   PER CURIAM.

Petitioner Carolyn R. Frengel (the mother) seeks a writ of prohibition against Circuit Judge Monica L. Sierra to disqualify her' from presiding over any further proceedings in a dissolution action. We conclude that one of the facts alleged in the mother’s motion to disqualify was legally sufficient, and the' motion should have been granted. Accordingly, we grant the petition and issue the writ of prohibition.

The mother and her husband, Daniel W. Frengel, (the father) have two children together: a daughter who is fifteen and a son who is thirteen. The father filed a motion to permit the children to testify in camera pursuant to Florida Family Law Rule of Procedure 12.407 on the ground that “[ijssues have been fairly raised by the pleadings of the parties relative to the children’s primary residence.” The court conducted a hearing on this motion on March 8, 2004, but decided to reserve ruling until after the completion of an evi-dentiary hearing already scheduled for March 19, 2004, on the parties’ respective requests for temporary custody of the children. At that hearing, the judge concluded that she would conduct in camera interviews with the children in order to rule on the parents’ requests for temporary custody. Although she gave both parties the opportunity to have a court reporter present to transcribe the interviews, both declined.

The mother filed her motion to disqualify Judge Sierra when she discovered that during the March 19 in camera interviews with the children, the judge had given the children her telephone number and email address and invited the children to communicate with her. The mother alleges this occurred without her knowledge. This apparently came to light when the mother found emails on her home computer that the children had sent to the judge during the first three weeks of April. The emails detailed the children’s negative feelings toward their mother. They also referenced the children’s attempts to contact the judge by telephone. There is also some indication in one of the emails that Judge Sierra had responded to an email from one of the children. The wife argues that because of these events, she fears that she cannot receive “the cold neutrality of an impartial judge.” See State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939).

In determining whether a motion to disqualify is legally sufficient, we review the motion’s allegations under a de novo standard. As the Fourth District explained in Hayes v. State, 686 So.2d 694, 695 (Fla. 4th DCA 1996), “[o]ur task on appeal is to determine the legal sufficiency of the motion based on whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” We conclude that the wife’s motion meets this standard and therefore the trial court should have granted her motion.

In this case, the appearance of impartiality was destroyed by the alleged surreptitious nature of the trial judge’s communications with the children. If the facts alleged by the wife are taken as true, the surreptitious nature of the communications together with the conspiratorial tone used by the children in those communications would prompt a reasonably prudent person to fear that the judge was no longer neutral because she had entered into a confidential relationship with the children, both of whom expressed very negative feelings toward the mother. Accordingly, we grant the petition and issue the writ of prohibition disqualifying Judge Sierra from further participation in this matter.

Petition granted; writ issued.

WHATLEY, STRINGER, and KELLY, JJ., concur.

      . We note that rule 12.407 addresses an entirely different situation than the one presented in this case. We do not intend to suggest by this opinion that a judge hearing a custody or visitation matter may only conduct an interview with the parties’ children if a motion is filed under this rule. We simply are relating the course of the proceedings below.

        . The content of the emails in question has been disclosed to both parties and was made a part of the record by the mother. If the parties were not already aware of the contents of the emails sent by the children, we do not believe it would be appropriate for us to disclose the contents of those communications to the parties through this opinion because the children clearly intended them to be private.

      . In reaching our conclusion in this case, we have not overlooked the father's response to the mother's petition. His response is largely devoted to contesting the facts alleged by the mother. Our task, however, is not to determine whose version is correct. Our task is to determine whether the motion presented to Judge Sierra was legally sufficient. In considering a motion to disqualify, a trial judge cannot pass on the truth of the facts alleged and must view those facts from the perspective of the moving party. Thus, the contrary factual allegations by the father are of no import to our analysis of the correctness of the ruling on the motion to disqualify. See City of Hollywood v. Witt, 868 So.2d 1214 (Fla. 4th DCA 2004).


author: WHATLEY, Judge.

text:
    Phillip CASTLEBERRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-849.
    District Court of Appeal of Florida, Second District.
    June 9, 2004.
   WHATLEY, Judge.

Phillip Castleberry seeks review of the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court erroneously denied Castleber-ry’s motion as untimely, we reverse and remand.

Rule 3.850 requires that a motion for postconviction relief be filed within two years after the judgment and sentence become final. If a defendant does not appeal, the two-year period does not begin to run until after the thirty-day period during which the defendant would have filed a notice of appeal.

The allegations raised in Castleberry’s motion relate to his plea entered on October 11, 2001. Because he did not file an appeal, his judgment and sentence became final on November 10, 2001. Therefore, the two-year window for filing a rule 3.850 motion closed on November 10, 2003. The trial court denied the motion because it was not received and file-stamped by the trial court until November 14, 2003. The certificate of service on the motion, however, was dated November 9, 2003, which would have been within the two-year limit.

A pleading is presumed to be timely if the certificate of service shows that it was given to “officials for mailing on a certain date, if the pleading would be timely filed if it had been received and file-stamped by the Court on that particular date.” Thompson v. State, 761 So.2d 324, 325 (Fla.2000). The State carries the burden of proving that the document was not given to prison officials on the date listed in the certificate of service. Id. at 326.

The trial court erred in denying Castle-berry’s motion as untimely. Accordingly, we reverse. On remand, the trial court may allow the State the opportunity to prove that Castleberry’s motion was not given to prison officials on November 9, 2003. If the State does not carry this burden of proof, the trial court shall rule on the merits of Castleberry’s motion for postconviction relief.

Reversed and remanded.

SALCINES and SILBERMAN, JJ., concur.


author: SALCINES, Judge.

text:
    Nicholas POHL, Appellant, v. SOUTHEAST AIRLINES, INC., a foreign corporation, Appellee.
    No. 2D03-3114.
    District Court of Appeal of Florida, Second District.
    June 11, 2004.
    Marcus A. Castillo of Haas & Castillo, P.A., Clearwater, for Appellant.
    Thomas M. Gonzalez and Jennifer D. Zumarraga of Thompson, Sizemore & Gonzalez, P.A., Tampa, for Appellee.
   SALCINES, Judge.

Nicholas Pohl appeals a final order dismissing his amended complaint which alleged he was the target of a retaliatory personnel action prohibited by section 448.102(2), Florida Statutes (2001). We reverse.

“In ruling on a motion to dismiss, the trial court must confine itself to the four corners of the complaint, accept the alie-gations of the complaint as true, and construe the allegations in the light most favorable to the plaintiff.” Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So.2d 1078, 1080 (Fla. 2d DCA 2002), review denied, 845 So.2d 892 (Fla.2003). This court applies a de novo standard of review regarding the trial court’s decision to grant a motion to dismiss. Id. Our review leads us to the conclusion that the trial court erred in dismissing Mr. Pohl’s amended complaint.

In his amended complaint, Mr. Pohl alleged that he was a copilot for Southeast Airlines from July 2000 until October 17, 2001, when he was terminated in retaliation for having provided information to the Federal Aviation Administration (“FAA”) in August 2001. Southeast Airlines moved to dismiss Mr. Pohl’s amended complaint stating that the claim was preempted by federal law or, alternatively, that Mr. Pohl failed to state a cause of action under state law. Following an unreported hearing, the trial court entered a nonexplanatory final order dismissing Mr. Pohl’s amended complaint with prejudice.

The amended complaint set forth a number of factual allegations concerning the timing and nature of the information Mr. Pohl provided to the FAA. Specifically, Mr. Pohl alleged that he provided the information during a period when the FAA was conducting an investigation of Southeast Airlines. Mr. Pohl also alleged that he advised Southeast Airlines of his disclosure to the FAA and that Southeast Airlines thereafter subjected him to harassment until it ultimately terminated his employment.

Section 448.102(2) provides:

An employer may not take any retaliatory personnel action against an employee because the employee has:
(2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer.

§ 448.102(2), Fla. Stat. (2001). In his amended complaint, Mr. Pohl asserted that Southeast Airlines violated section 448.102(2) by taking retaliatory personnel action against him because he had provided information to the FAA in the course of its investigational inquiry into alleged violations of law by Southeast Airlines. Although we do not comment on the merits of Mr. Pohl’s claim, the allegations contained in the amended complaint were sufficient to withstand a motion to dismiss for failure to state a cause of action under section 448.102(2).

Likewise, the allegations framed in the amended complaint were sufficient to withstand a motion to dismiss based on federal preemption by the Airline Deregulation Act of 1978, 49 U.S.C. § 41713 (“ADA”). Although an action raised under state law is preempted by federal law if the claim is related to prices, routes, or services of an air carrier, some state actions may affect airline prices, routes, or services in too tenuous, remote, or peripheral a manner to have preemptive effect under the ADA. See Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003), cert. denied, — U.S. -, 124 S.Ct. 1422, 158 L.Ed.2d 86 (2004). At least on the face of Mr. Pohl’s amended complaint, his claim is not preempted under the ADA as a matter of law.

Accordingly, we reverse and remand for further proceedings.

ALTENBERND, C.J., and SILBERMAN, J., Concur.


author: NORTHCUTT, Judge.

text:
    Timothy Davis BARFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-223.
    District Court of Appeal of Florida, Second District.
    June 16, 2004.
    Rehearing Denied Aug. 5, 2004.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

A jury convicted Timothy Barfield of first-degree murder and burglary with assault or battery. Barfield has appealed his convictions, arguing for a new trial on two grounds. We reject without further discussion Barfield’s argument that the State improperly impeached him at trial. Bar-field also maintains that the court erred in refusing to permit him to present expert testimony by an accident reconstructionist. We agree, and for that reason we reverse and remand for a new trial.

Numerous witnesses testified at Bar-field’s trial, and their testimony was often conflicting. The undisputed facts established that a pickup truck was stolen from a Shell gas station while the truck’s owner was inside the station. When he saw his pickup being driven away he raced out and leaped into the bed. The driver accelerated to a high speed and began swerving, apparently attempting to throw the victim out. Many witnesses saw the victim being tossed around in the truck bed and heard him crying for help. The stolen truck eventually hit another vehicle, causing the driver of the truck to lose control and crash. The victim died a short time later from injuries sustained in the accident.

A witness who lived near the accident scene saw a man leave the truck and flee into a swampy area next to the witness’s home. Employing a tracking dog, the police found Barfield in a wooded area about a mile and half away.

Barfield told the jurors his version of the day’s events. He said he went to the Shell station to call his mother from the pay phone and ask for a ride home. But he saw a friend, an Hispanic youth named Vega, backing up in a pickup truck. Vega opened the passenger door and told Bar-field to get in. Just after he climbed into the truck, Barfield heard a man beating on the back window. Vega began driving very fast, swerving and trying to throw the man out of the truck bed. Barfield was scared and crouched on the passenger side floorboard. He begged Vega to stop, but Vega refused. Eventually, Vega lost control of the truck and it crashed. Barfield was knocked unconscious. He remembered feeling dizzy when he came to, and leaving the truck through the driver’s side door, which was open. He did not see Vega but he saw the victim walking around. Barfield was scared and ran into the wooded area because he was a convicted felon and was in possession of marijuana. As he ran, he discarded the marijuana in a lake. A police dog eventually found him and the canine officer arrested him.

Several witnesses contradicted Bar-field’s tale that he was an unwitting passenger. At least four people testified that they saw only one person in the cab of the truck, and several of them described a man who looked like Barfield. The witness who first arrived at the wreck saw only one man leave the cab.

But other testimony corroborated Bar-field’s story. A witness parked at the Shell station saw two men in the cab of the pickup, one of whom appeared to be Hispanic and about sixteen or seventeen years old. She said that the Hispanic youth drove the truck out of the parking lot. The driver of the vehicle hit by the stolen truck testified she saw the silhouettes of a driver and a passenger in the cab. Another witness, a fifteen-year-old girl who observed the accident, reported that an Hispanic boy jumped out of the truck and ran into the swamp. She knew the boy from school and identified him as Vega. The police apprehended Vega near the scene, and the fifteen-year-old said he was. the person she had seen leaving the cab of the truck after the crash.

On rebuttal, however, the State called several witnesses who testified that Vega did- not know how to drive. • Vega and his girlfriend’s father-testified he was at her home during the relevant time.

The State also presented the testimony of a fiber analyst from the Florida Department of Law Enforcement who found seventy-seven fibers consistent with Barfield’s pants on a towel kept on the driver’s seat of the truck. She also found four fibers on the ceiling of the cab and six fibers on the passenger’s seat and floorboard, but she did not find any fibers on the driver’s floorboard.

To rebut the implication of this evidence, Barfield sought to introduce the opinion testimony of an accident recon-structionist and forensic scientist concerning how the accident happened, how the fibers were released, and how they could be distributed as a result of the accident. The expert would have opined that tears in the knee and back hip pocket of Barfield’s pants were the result of a rollover accident and were consistent with his being a passenger who was tossed around the cab. The fibers would have been released when Barfield’s pants tore. The fibers discovered on the ceiling of the cab were consistent with a rollover. Barfield’s expert also believed that the many fibers found on the towel in the driver’s seat and the absence of fibers on the driver’s floorboard demonstrated that Barfield had crawled on his hands and knees from the passenger seat to the driver’s seat after the rollover accident. The State moved to exclude the expert’s opinion about the fiber evidence. It argued that the opinion did not require any specialized knowledge or experience, that it was within the common experience of an ordinary person, and that the jurors had the ability to understand the evidence. The trial court agreed and excluded the expert’s testimony.

We review a trial court’s decision to admit or exclude expert testimony under the abuse of discretion standard. Angrand v. Key, 657 So.2d 1146, 1148 (Fla. 1995). The intent of the evidence code is to admit expert testimony if it will assist the jury in determining a fact issue. § 90.702, Fla. Stat. (2002); Angrand, 657 So.2d at 1148. This is particularly true where an issue is hotly contested at trial and where the testimony is not merely cumulative but is critical in helping the jurors resolve the factual issues. See Bryant v. Buerman, 739 So.2d 710, 713 (Fla. 4th DCA 1999). As the previous discussion of the evidence shows, the issue of whether Barfield was driving the truck was the subject of much controversy. The State’s fiber evidence was intended to convince the jurors that Barfield was the driver. The defense expert’s testimony would have explained why that evidence could lead to a different conclusion.

The State argued, and the circuit court relied on, State Farm Mutual Automobile Insurance Co. v. Penland, 668 So.2d 200 (Fla. 4th DCA 1995), for the proposition that testimony of Barfield’s expert addressed matters that were in the common knowledge of the jurors. While Penland also involved opinion testimony about whether a party was the driver or the passenger in a car accident, that opinion was based on the injuries to the people known to be in the car. In that case, the jurors could merely look at the physical evidence and, based on their general knowledge of what happens in a car accident, determine that the person with facial lacerations was most probably the person who hit the windshield hard enough to break it. They could compare the description of the interior of the car to the various bruises and injuries suffered and determine that a passenger would not have injuries to her left hip when there was nothing on the passenger side of the car that would have come directly in contact with a hip. Id. at 203.

Injuries and their causes, in automobile accidents or otherwise, are subjects within most people’s common knowledge. How fibers are released from clothing, and the possible significance of the presence or absence of fibers in a particular part of an automobile after an accident, are not. Cf. Mathieu v. Schnitzer, 559 So.2d 1244, 1245 (Fla. 4th DCA 1990) (remanding for a new trial where the court refused to permit expert testimony concerning the damage found on the defendant’s car in relation to the plaintiffs injuries, and holding that what such evidence means to a trained investigator is not within the common understanding of the average layman). The expert opinion in this case could have assisted the jury in determining the significance of this physical evidence. The trial court abused its discretion in excluding the testimony of Barfield’s expert. We reverse and remand for a new trial.

Affirmed in part, reversed in part and remanded.

ALTENBERND, C.J., and CASANUEVA, J., Concur.


text:
    Cynthia COOK, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4772.
    District Court of Appeal of Florida, Second District.
    June 16, 2004.
   SALCINES, Judge.

Cynthia Cook appeals the summary denial of her motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.

On February 16, 1999, Cook entered a nolo contendere plea on several drug-related charges in case numbers 98-0457 and 98-2666. The trial court withheld adjudication on all counts and sentenced Cook to time served in the county jail on two counts in case number 98-0457. On the remaining counts in ease number 98-0457 and all counts in case number 98-2666, the trial court placed Cook on concurrent terms of five years’ probation. After Cook violated her probation twice in both cases, the trial court adjudicated her guilty in both cases on June 15, 2000. The trial court sentenced Cook on each count to forty-seven months in prison, suspended, and placed her on two years’ community control followed by one year of probation to run concurrent in each case. Cook violated her community control, and the trial court sentenced her to concurrent terms of sixty months in prison on each count in both cases.

In her motion, Cook alleged that her sentences of sixty months in prison are illegal because on June 15, 2000, the trial court imposed true split sentences. She argued that upon violation of the community control portion of her sentences, the trial court could have only imposed the balance of the suspended portion of the true split sentences. We agree. See Poore v. State, 531 So.2d 161 (Fla.1988). Such a claim is cognizable under rule 3.800(a). See Mack v. State, 823 So.2d 746 (Fla.2002). The record indicates that on June 15, 2000, the trial court imposed true split sentences with the suspended portion in each sentence being forty-seven months in prison. Therefore, upon violation of the community control portion of the true split sentences, the trial court was limited to only imposing the balance of the suspended portion. See Poore, 531 So.2d at 164-65. Accordingly, we reverse and remand for the trial court to resentence Cook to forty-seven months in prison on counts one and two in case number 98-0457 and on all counts in case number 98-2666.

Reversed and remanded.

DAVIS and SILBERMAN, JJ., Concur.


text:
    Darryl SCHNEIDER, Appellant, v. The UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES and Lisa M. Okoh, Esquire, Appellees.
    No. 2D04-1574.
    District Court of Appeal of Florida, Second District.
    June 18, 2004.
    Rehearing Denied July 28, 2004.
    Darryl Schneider, pro se.
    Kevin J. Fitzsimmons of Mandelbaum & Fitzsimmons, P.A., Tampa, for Appellee University of South Florida Board of Trustees.
    Lisa M. Okoh, pro se.
   PER CURIAM.

The court has reviewed appellant’s initial brief and determined that it demonstrates no basis for reversal. See Fla. R.App. P. 9.315(a).

Affirmed.

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


author: ORFINGER, J. PLEUS, J., PER CURIAM.

text:
    ALLSTATE INDEMNITY CO., Petitioner, v. Jeffrey HICKS, Respondent.
    No. 5D03-3605.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.
    Order Denying Rehearing and Rehearing En Banc and Certifying Question Aug. 27, 2004.

      Joseph Currier Brock and Steven W. Igou, Orlando, for Petitioner.
    John G. Crabtree, Key Biseayne, and Michael B. Brehne, Maitland, for Respondent.
   ORFINGER, J.

Allstate Indemnity Company seeks cer-tiorari review of a decision rendered by the Circuit Court of Seminole County, Florida, acting in its appellate capacity. Allstate contends that the circuit court departed from the essential requirements of law by affirming the county court’s order allowing attorney’s fees under section 627.428, Florida Statutes (2003), for the time spent litigating the necessity of an attorney’s fee multiplier. We agree and grant the petition for certiorari.

Jeffrey Hicks, an Allstate insured, was injured in an automobile accident. Hicks received chiropractic treatment for which he sought PIP benefits, including lost wages and mileage. After Allstate required Hicks to submit to a medical examination, it stopped paying PIP benefits, concluding that further treatment was not reasonable, necessary or related to the accident. Hicks then filed a PIP action against Allstate in the county court, seeking medical and lost wage benefits, along with attorney’s fees. The parties ultimately resolved their dispute, leaving only the issues of Hicks’s attorney’s fees, and the appropriateness of a fee multiplier, for resolution by the court. After a hearing, at which Allstate conceded Hicks’s entitlement to attorney’s fees, the county court established the lodestar fee amount and awarded a 2.0 multiplier. In calculating the lodestar amount, the court allowed fees for the time spent litigating the appropriateness of a fee multiplier. Allstate appealed to the circuit court, which affirmed the county court’s judgment and also awarded Hicks’s appellate attorney’s fees pursuant to section 627.428(1). Allstate now seeks certiorari review of the circuit court’s decision.

Section 627.428(1), Florida Statutes (2003), provides, in relevant part:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured ... under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured ... prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured ... a reasonable sum as fees or compensation for the insured’s ... attorney prosecuting the suit in which the recovery is had.

In State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 833 (Fla.1993), the supreme court held that attorney’s fees may be awarded under section 627.428 for litigating the issue of entitlement to an award of attorney’s fees, but not for litigating the amount of attorney’s fees to be awarded. Consequently, under the rule established in Palma, we must determine whether time spent litigating the issue of whether an attorney’s fee multiplier should be utilized goes to entitlement, or to amount.

We conclude that time spent litigating the appropriateness of a fee multiplier goes to amount, and as a result, is not recoverable under Palma. The use of a multiplier presupposes the entitlement to an attorney’s fee award. Before a party can seek an attorney’s fee multiplier, that party must first be entitled to recover fees pursuant either to a fee-authorizing statute or by virtue of a contract. Consequently, consideration of a multiplier does not occur unless a pre-existing entitlement to an attorney’s fee has been established.

We also believe that public policy considerations support our conclusion. The purpose of section 627.428 is “ ‘to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue to enforce their insurance contracts.’ ” Palma, 629 So.2d at 833 (quoting Ins. Co. of N. Am. v. Lexow, 602 So.2d 528, 531 (Fla.1992)). The statute is intended to allow the court to award a reasonable attorney’s fee for a successful action under an insurance contract, not two or three times a reasonable fee, except in rare instances. As one judge explained:

An award of attorney’s fees under a fee-shifting statute isn’t a prize to the winning lawyer. Rather, it compensates the prevailing party for legal fees prudently incurred. Normally this consists of a reasonable hourly rate, multiplied by a reasonable number of hours (the lodestar). There is a “strong presumption” that an attorney’s fee award may not exceed this figure. Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 728, 107 S.Ct. 3078, 3088, 97 L.Ed.2d 585 (1987). On rare occasions, a court may grant a multiplier to account for factors not adequately reflected in the lodestar. Blum v. Stenson, 465 U.S. 886, 896-97, 104 S.Ct. 1541, 1547-48, 79 L.Ed.2d 891 (1984).

Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 706-07 (9th Cir.1996) (Kozinski, J., dissenting in part).

We conclude that the circuit court departed from the essential requirements of law in affirming the county court’s order allowing attorney’s fees for the time spent litigating the applicability of a fee multiplier, and granting Hicks’s request for appellate attorney’s fees. Accordingly, we grant the writ, and conclude that no attorney’s fees should have been awarded for the time spent litigating the applicability of the multiplier, and, as a result, no appellate attorney’s fees are due.

CERTIORARI GRANTED.

PALMER, J., concurs.

PLEUS, J., dissents with opinion.

PLEUS, J.,

dissenting.

I respectfully dissent. I believe that litigating the appropriateness of a fee multiplier goes to the entitlement to, as well as the amount of, attorney’s fees.

The primary purpose behind a multiplier is to compensate an attorney for the risk of taking cases on a contingency basis. See generally Florida Patients’ Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985), modified, Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). However, an insured also receives a benefit when a multiplier is available, because the insured is better able to obtain competent counsel, and as the multiplier enhances the availability of quality legal services, there is a benefit to all potential claimants. As the application of a multiplier benefits both the client and the attorney, any controversy regarding the use of a multiplier is an issue of entitlement and not merely an issue concerning the amount.

As the prevailing party in the county court, Hicks had an interest in defending the attorney’s fee judgment on appeal. Because the judgment was affirmed, Hicks is entitled to appellate attorney’s fees under section 627.428, Florida Statutes, including all appellate issues relating to the multiplier.

This holding promotes the purpose and remedy of section 627.428, which is to encourage insurance companies to promptly pay a valid claim by awarding reasonable attorney’s fees to a successful insured litigant who is forced to sue to recover benefits. This holding also furthers the established policy of using contingency fee multipliers in tort and contract cases, when reasonable and supported by the evidence. See generally Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d at 834.

Accordingly, I conclude the circuit court did not depart from the essential requirements of law in affirming the attorney’s fee judgment or in granting the motion for appellate attorney’s fees.

I would deny the petition.

ON MOTIONS FOR REHEARING, REHEARING EN BANC AND CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE

PER CURIAM.

The motions for rehearing and rehearing en banc are denied. However, we certify, as a question of great public importance, the following:

UNDER SECTION 627.428, FLORIDA STATUTES, IS AN INSURED ENTITLED TO RECOVER FROM ITS INSURER ATTORNEY’S FEES INCURRED IN SUCCESSFULLY LITIGATING ENTITLEMENT TO AN ATTORNEY’S FEE MULTIPLIER?

REHEARING DENIED; QUESTION CERTIFIED.

PLEUS, PALMER and ORFINGER, JJ., concur.

      . Our conclusion is buttressed by the definitions of the relevant words. According to Webster's Ninth New Collegiate Dictionary, "amount” means the “total number or quantity: aggregate,” while "entitlement” means the state or condition of being entitled or a right to benefit specified especially by law or contract. Webster's Ninth New Collegiate Dictionary 80, 416 (9th ed.1989). Given these definitions, we have no hesitancy in concluding that litigation regarding the applicability of an attorney's fees multiplier relates solely to amount and not to entitlement.

      . Fla. R.App. P. 9.030(a)(2)(A)(v).


author: SHARP, W., J.

text:
    Adrian LEARY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3268.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.
    Rehearing Denied Aug. 26, 2004.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Leary appeals from his judgment and sentence for possession of a firearm by a convicted felon, after pleading guilty and reserving his right to appeal the denial of his motion to suppress evidence which is dispositive of the case. Because we conclude the inventory search of the trunk of his automobile was unlawful, we reverse.

Appellate review of a raling on a motion to suppress is de novo. Connor v. State, 803 So.2d 598, 607 (Fla.2001); State v. Gandy, 766 So.2d 1234 (Fla. 1st DCA 2000). Although the reviewing court must interpret conflicting evidence in a manner most favorable to sustaining the trial court’s ruling, in this case, there were no relevant disputed facts or evidence with regard to issue upon which we reverse.

Leary initially argues that his arrest for trespass after warning was unlawful because he was an invitee of a paying guest of the motel, Glover. They had been staying at the motel for the prior six days. Leary helped pay for the room. He was only seen entering and leaving their room and walking across the parking lot.

The deputies testified that on May 1, 2003, they saw Leary at the motel, entering and leaving the room shared with Glover, and crossing the parking lot to his car. The deputies recognized him and his car, and they knew he had received a 1999 trespass warning at the request of the owner of the motel. One deputy also checked with the manager at the front desk and found that Leary did not appear on the guest list. Leary left the motel room, got into his car and started to leave when the deputies stopped and arrested him.

It may be that Leary would not have been found guilty of trespass, despite the issuance of the trespass warning to him by the owners of the motel in 1999, because he was the guest or invitee of Glover, a paying guest and a lessee of a room. See State v. Jackson, 281 So.2d 353, 354-355 (Fla.1973); L.D.L. v. State, 569 So.2d 1310, 1312-1313 (Fla. 1st DCA 1990). We do not need to reach that question, however, because taking all inferences from the facts in favor of the state, it appears that the deputies had probable cause to arrest Leary for trespass. See Seago v. State, 768 So.2d 498 (Fla. 2d DCA 2000).

The next issue is whether the deputies’ inventory search of the trunk of Leary’s car was lawful. This search led to the discovery of a firearm, which was the basis for the criminal charge in this case.

The search of a car incident to an arrest is limited to the passenger compartment. See New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The authority to search incident to arrest does not extend to the trank of a car, unless contraband is found in the passenger compartment. In this case, no contraband was discovered on Leary’s person or in his car.

The state argues authority to search the trunk of the car can be based on an inventory search. Inventory searches must be supported by probable cause or be consistent with law enforcement’s role as caretaker of the streets, completely unrelated to any criminal investigation. United States v. Duguay, 93 F.3d 346 (7th Cir.1996). They are warranted for three reasons: protecting the owner’s property; protecting the police against lost or stolen property claims; and protecting police from potential danger. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); United States v. Haro-Salcedo, 107 F.3d 769, 772 (10th Cir.1997). However, standardized criteria or routines must be established to regulate inventory searches. Duguay. The police activity challenged must be in conformity with those procedures. Patty v. State, 768 So.2d 1126, 1127-1128 (Fla. 2d DCA 2000). See also Beezley v. State, 863 So.2d 386 (Fla. 2d DCA 2003); Montalvo v. State, 520 So.2d 292 (Fla. 2d DCA 1987).

Further there is authority that it is improper to seize a vehicle parked in a motel parking lot for “safekeeping” when the driver is arrested during his stay at the motel. United States v. Lawson, 487 F.2d 468 (8th Cir.1973). Impoundment has been held improper where a driver has been arrested for a petty offense, assuming the vehicle is not a traffic hazard. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). Trespass is a minor offense, a second degree misdemeanor, and there is no dispute that Leary’s vehicle was safely parked in the motel parking lot, causing no disruption to street traffic.

The deputy who conducted the search testified only that the vehicle “was going to be towed” from the premises and it is the sheriffs policy to inventory vehicles before towing. She also testified she found other items in the trunk, clothing, a VCR or DVD. She said she had a tow sheet upon which she was supposed to describe the property found. However, no tow sheet was apparently filled out, in this case. Nor did the state present any other testimony concerning the sheriffs standardized procedures for when to tow vehicles after an arrest for minor charges — • without regard to their location.

We conclude that the search of the trunk of Leary’s car cannot be justified on the basis of an inventory search, because the record lacks sufficient evidence of any standardized procedure utilized by police officers to conduct such searches, and the one procedure that was established, in this case, was apparently disregarded. Accordingly, we reverse and remand for discharge. Patty; Beezley; Montalvo.

REVERSED and REMANDED.

SAWAYA, C.J., and GRIFFIN, J., concur.

      . Section 790.23, Florida Statutes (2003).

      . See State v. Carr, 438 So.2d 826, 828 (Fla. 1983); Hawk v. State, 848 So.2d 475 (Fla. 5th DCA 2003).

      . See McNamara v. State, 357 So.2d 410 (Fla. 1978); State v. Panzino, 583 So.2d 1059 (Fla. 5th DCA 1991); Velez v. State, 554 So.2d 545 (Fla. 5th DCA 1989).

        . See United States v. Baker, 221 F.3d 438 (3d Cir.2000); United States v. Blaze, 143 F.3d 585, 591 n. 8 (10th Cir.1998); United States v. Wright, 932 F.2d 868 (10th Cir.1991).

      . See United States v. Myers, 102 F.3d 227 (6th Cir.1996); United States v. Riedesel, 987 F.2d 1383 (8th Cir.1993); State v. Scott, 576 So.2d 411 (Fla. 3d DCA 1991).

      . In this case, Glover testified that the check out time was 11:00 a.m. and that she and Leary were getting ready to check out (T. 31). The arrest report shows that Leary was arrested at 7:12 a.m. (R. 55).

      .§ 810.08(2), Fla. Stat. (2003).


author: PETERSON, J.

text:
    John F. ZOLD, Appellant, v. Sherry Palicte ZOLD, Appellee.
    Nos. 5D03-148, 5D03-2117.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.
    Rehearing Denied Aug. 18, 2004.
    Charles W. Willits, Orlando, for Appellant.
    Norman D. Levin and Richard L. Trion-fo of Norman D. Levin, P.A., Longwood, for Appellee.
   PETERSON, J.

John F. Zold appeals a final judgment dissolving his marriage to Sherry Palicte Zold. He alleges that the trial court erred: (1) in determining his percentage of ownership of capital stock in Tri Tech Electronics, Inc., (“Tri Tech”), a close corporation electing to be taxed pursuant to Subchapter S of the Internal Revenue Code; (2) in attributing income to him from Tri Tech; (3) in ordering excessive support obligations which leave him without sufficient funds with which to support himself; (4) in awarding permanent alimony to Sherry, whom he alleges to be able to be self supporting; and (5) in awarding attorney’s fees to her.

John, who was sixty-five years of age, and Sherry, who was fifty at the time of the trial, have one fifteen year old child. John is the chief executive officer of Tri Tech and Sherry was a full-time housewife with one year of college. She was employed as a secretary making $20,000 per year prior to the marriage.

On November 27, 2002, the trial court ordered John to pay Sherry:

• $172,088.50 within sixty days.
• 1,797.66 monthly until $200,000, plus interest @ 7% was paid,
• 5,000.00 monthly as permanent alimony,
• 520.94 monthly as child support.
. ? Premiums on a $500,000 life insurance policy, the amount of which is unknown.
? Health and dental insurance.
? One-half of the child’s clothing, schooling, entertainment, and other and uninsured medical expenses.
$189,406.20 +

An order dated June 4, 2003, supplemented the November 27th order and required payment of Sherry’s attorney’s fees at the rate of $1,000 per month on a $4,000 award, plus interest. A second order also required payment of Sherry’s attorney’s fees and costs at the rate of $1,000 per month on a $90,000 award. The total burden under all three orders required John to pay at least an estimated $10,000 per month plus the $172,088.50 lump sum within sixty days.

The only marital asset distributed to John, and the only source of income to satisfy the obligations imposed on him by the trial court, was his interest in Tri Tech, the capital stock of which is owned by John and one other stockholder. The percentage of ownership by the two shareholders, the value of John’s shares of stock and the income available to John from this corporation form the main issues of this appeal.

PERCENTAGE OF OWNERSHIP

John disputes the trial court’s finding that his portion of the capital stock is worth $890,000. He claims that this value was incorrectly determined by applying a percentage rate of 57.15428, found by the trial court to be his percentage of ownership of the Tri Tech stock. John claims he only owns forty percent. There is substantial competent evidence in the record, however, to support the trial court’s finding that John owned 57.15428 percent of the Tri Tech stock. E. g., Deakyne v. Deakyne, 460 So.2d 582, 583 (Fla. 5th DCA 1984).

INCOME

The source of all John’s income is from Tri Tech. Tri Tech and its two shareholders have elected to be taxed under Sub-chapter S of the Internal Revenue Code, which means that all corporate income is “passed through” to the shareholders in accordance with their percentage ownership of the stock of the corporation. “Pass through” income would be reported on the shareholders’ individual federal income tax returns. Although all of the corporate income must be reported and taxed, the individuals do not necessarily receive distributions of cash equal in amount to the income subject to taxation. Only that amount of cash is distributed in excess of what must be retained for corporate purposes.

It is apparent that the final judgment includes in John’s income, for purposes of establishing support and equalization of marital assets, all of John’s Subchapter S share of Tri Tech’s income and considers Tri Tech’s cash as available to John for the payment of obligations established in the final judgment and award of attorney’s fees.

When a corporation has more than one shareholder, an officer/shareholder has a fiduciary duty to all shareholders. The corporation is not the personal piggy bank for any one shareholder simply because that shareholder may have a controlling interest in the corporation and is also the chief executive officer. Financial responsibilities to creditors and employees must be satisfied before distributions to shareholders take place if a corporation is to remain viable. Once the distributions are found to be possible, the distributions must be pro-rata in accordance with the percentage ownership of the capital stock of the corporation. Court ordered obligations in marital litigation should not place an ex-marital partner in the position of having to breach a corporate fiduciary obligation in order to avoid the possibility of a court finding that partner contemptuous.

Tri Tech’s other shareholder is an attorney and the tenor of his testimony at trial does not indicate that John is free to treat the corporate cash as his piggy bank, nor to accumulate cash rather than distribute it, especially when the federal income tax on it had been previously paid. Tri Tech’s cash on hand at year-end 1999, 2000 and 2001 was $92,854, $196,881 and $392,163, respectively. However, its liabilities for those same time periods were $1,230,618, $1,094,609 and $1,115,417. The corporate accountant testified that distribution of cash to shareholders equal to the total corporate earnings should not be made because cash is required to be retained as working capital to maintain business operations of the corporation and to avoid bankruptcy.

Sherry’s brief states: “Appellant (John) testified that there was over $250,000 immediately available (for distribution to shareholders).” No citation to the record appears for that statement and although we have reviewed the voluminous record in order to locate the statement, we have not found it. We should also add that even if $250,000 was available to distribute to shareholders, John’s portion would still not satisfy the financial burden of an amount exceeding $189,406.20 placed on him by the final judgment. John’s share would either be $100,000 (40%) or $142,886 (57.15428%), depending upon the resolution of the capital stock ownership controversy.

The final judgment states that Tri Tech’s “available income on its balance sheet increased from $92,853 at year-end 1999 to $196,881 at year-end 2000 to $372,908 at year-end 2001.” (Emphasis added.) A balance sheet does not show available income. A balance sheet shows assets, liabilities and owners’ equity. Although balance sheets show cash on hand, the same does not represent income available for distribution to its shareholders. The record does not support the trial court’s determination that these amounts could be distributed by the corporation to the shareholders without jeopardizing corporate operations. This misunderstanding and the appearance that the final judgment considers all of the “pass through” Subchapter S income as being available personally to John to “spend” for non-corporate purposes requires us to vacate portions of the judgment and remand for reconsideration in light of our decision.

We vacate that portion of the Final Judgment of Dissolution of Marriage, dated November 27, 2002, that makes findings as to John’s income and that portion of the final judgment ordering support and equitable distribution. Additionally, we vacate the two awards of attorneys’ fees to Sherry, dated June 4, 2003. We remand with instructions to:

1. Make findings as to the amount of income available to John for the purposes of support for Sherry, his child and himself without considering any undistributed Subchapter S income to shareholders unless it can be demonstrated that Tri Tech has delayed distributions of cash for purposes other than corporate requirements.
2. Award such amounts of support for alimony and child support based upon the finding of income available to John.
3. Structure a realistic method of payment of support and equitable distribution, and if awarded, attorney’s fees, so that John has the ability to successfully retire the debt with a sufficient remainder for his living expenses. The payments should not be so large as to guarantee John’s failure to satisfy the obligations imposed by the judgment.

AFFIRMED IN PART, VACATED IN PART and REMANDED.

THOMPSON and ORFINGER, JJ., concur.

      . See the concurring opinion in Anson v. Anson, 772 So.2d 52, 56-57 (Fla. 5th DCA 2000), for a discussion of retained income for corporate purposes and its affect on distribution of income to shareholders.

      . The record contains some discussion of a cash advance by a customer of a substantial amount for the purchase of materials to be processed by Tri Tech. This discussion was offered to explain the increase in cash at 2001 year-end.

      . The finding by the trial judge that John owns 57.15428% of Tri Tech does not affect Tri Tech or its stockholders who were not parties to these proceedings.


author: STRINGER, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Melissa COLON, Appellee.
    Nos. 2D03-4124, 2D03-5518.
    District Court of Appeal of Florida, Second District.
    June 25, 2004.
    Rehearing Denied July 20, 2004.

      Charles W. Hall and Mark D. Tinker of Fowler White Boggs Banker, P.A., St. Pe-tersburg, for Appellant.
    Danell G. DeBerg of DeBerg & DeBerg, P.A., St. Petersburg, for Appellee.
   STRINGER, Judge.

State Farm Mutual Automobile Insurance Company seeks review of the order granting Melissa Colon’s motion for partial summary judgment and the final declaratory judgment determining Colon’s coverage under her grandfather’s insurance policy. Because the trial court erred in determining that Colon resided primarily with her grandfather at the time of the auto accident, we reverse the trial court’s order and final declaratory judgment and remand for the trial court to enter an order granting State Farm’s motion for summary judgment.

An appellate court reviews de novo the propriety of the grant of summary judgment. Dwelle v. State Farm Mut. Auto. Ins. Co., 839 So.2d 897, 898 (Fla. 1st DCA 2003). State Farm argues that the trial court erred in determining that Colon falls under the uninsured motorist portion of her grandfather’s insurance policy, which extends coverage to relatives who “reside primarily” with the insured. Residency in a household is a mixed question of law and fact to be determined based on the facts of each individual case. Row v. United Servs. Auto. Ass’n, 474 So.2d 348, 349 (Fla. 1st DCA 1985). However, when the facts are undisputed, as in this case, whether the facts fit within the insurance policy definition is a question of law that may be decided on appellate review. Id.

“A resident is one who lives at a place with no present intention of removing therefrom.” Kiplinger v. Kiplinger, 147 Fla. 243, 2 So.2d 870, 873 (1941); see also Trezza v. State Farm Mut. Auto. Ins. Co., 519 So.2d 649 (Fla. 2d DCA 1988) (applying Kiplinger definition of resident to case involving uninsured motorist policy coverage). A determination of residency involves consideration of both fact and intention. See Kiplinger, 2 So.2d at 873.

In this case, Colon, her flaneé, and their baby were staying with Colon’s grandfather while waiting for their water-damaged house to be repaired when she was injured in an auto accident. While staying with her grandfather, Colon continued to maintain the mortgage, utilities, phone, and mail service at her house. Further, there was no evidence that Colon listed her grandfather’s address as her new permanent address or that she changed her driver’s license or other documents to reflect a new place of residency.

We must consider not only the facts of Colon’s situation, but also the evidence of Colon’s intent while staying with her grandfather. For example, in Trezza, this court noted that Trezza clearly considered his parents’ address to be his permanent address and home despite being stationed at different bases during his military'service, and we found Trezza to be covered as a resident. 519 So.2d at 652. However, in Whitten v. Allstate Insurance Co., 476 So.2d 794, 796 (Fla. 1st DCA 1985), when Whitten moved in with his parents in Florida after being laid off from his job in Indiana, the court noted a “total lack of evidence in the record that Whitten had any intention to continue living with his parents as of the date of the accident, and after the accident he returned to Indiana.” The court then determined that Whitten was not a resident covered under his mother’s policy despite his living with his parents and working for his father when the accident occurred. Id.

In this case, it is undisputed that Colon had a clear intent to move back to her house when the repairs were complete, and she did just that. Colon agreed that staying with her grandfather was “essentially a temporary living arrangement” and that she had no intent to change her permanent residence to her grandfather’s house. Based on the facts and clear evidence of Colon’s intent, we find that the trial court erred in determining that Colon resided primarily with her grandfather at the time of the accident. Accordingly, we reverse the trial court’s order granting Colon’s motion for partial summary judgment and final declaratory judgment. We remand for the trial court to enter an order granting State Farm’s motion for summary judgment.

Reversed and remanded with directions.

SALCINES and CANADY, JJ., Concur.


text:
    Iran Nathaniel STEVENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-777.
    District Court of Appeal of Florida, Second District.
    June 25, 2004.
    Rehearing Denied Aug. 5, 2004.
   PER CURIAM.

Affirmed. See McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003); Cook v. State, 816 So.2d 773 (Fla. 2d DCA 2002); Wright v. State, 834 So.2d 879 (Fla. 3d DCA 2002); LaMar v. State, 823 So.2d 231 (Fla. 4th DCA 2002); Middleton v. State, 721 So.2d 792 (Fla. 3d DCA 1998). As this court did in McCall, we certify direct conflict with Richardson v. State, — So.2d -, 28 Fla. L. Weekly D1716 (Fla. 4th DCA July 23, 2003).

Affirmed; conflict certified.

WHATLEY, SALCINES, and STRINGER, JJ., concur.


text:
    Thomas Michael SMITH, Appellant, v. Gail Elizabeth DAWSON, f/k/a Gail Elizabeth Dawson-Smith, Appellee.
    No. 2D03-1304.
    District Court of Appeal of Florida, Second District.
    June 30, 2004.

      Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Gail E. Dawson, pro se.
   NORTHCUTT, Judge.

Thomas Michael Smith appeals a post-dissolution judgment ¿warding attorney’s fees and costs to his former wife, Gail Elizabeth Dawson Smith, n/k/a Gail Elizabeth Dawson. We reverse because the amended motion for attorney’s fees and the notice of hearing were not served upon Smith’s attorneys of record.

Florida Rule of Civil Procedure I.080(b) requires service upon the attorney of record in a pending action. See Bridges v. Bridges, 520 So.2d 318 (Fla. 2d DCA 1988). Smith argues, and the record shows, that the amended motion for attorney’s fees and the notice of hearing were not served upon his attorneys of record, Bruce Kaplan and Brian Bursa. Dawson contends that Kaplan and Bursa were no longer representing Smith, but there is no record support for this assertion. Florida Rule of Judicial Administration 2.060(i)(l) requires court approval before an attorney is permitted to withdraw from a continuing action. Furthermore, an action is pending until the time for filing an appeal has expired, see Suarez v. Hillcrest Dev. of S. Fla., Inc., 742 So.2d 423, 425 (Fla. 3d DCA 1999) (citing Bridges); see also Fla. R. Jud. Admin. 2.060(i)(3). The fee motion in this case was filed only twenty-five days after the final judgment of dissolution was rendered, before the appellate window had closed. See Fla. R.App. P. 9.110(b). Therefore, the action was still pending, and Dawson was required to serve notice on Smith’s attorneys of record. The lack of notice requires reversal. See Hanley v. Hanley, 426 So.2d 1230 (Fla. 2d DCA 1983) (vacating property settlement and final judgment of dissolution when notice was not served on husband’s attorney).

The circuit court awarded the fees against Smith and his three conservators, jointly and severally. We note that there is no indication this judgment was imposed against the conservators individually. Rather, it appears to have been imposed against them in their official capacity. The conservators in their official capacity signed Smith’s pleadings and financial affidavit and they appeared at the final hearing, thus submitting themselves in their official capacity to the court’s jurisdiction. See Fid.-Philadelphia Trust Co. v. Ball, 208 So.2d 282, 285 (Fla. 3d DCA 1968) (holding that counterclaim could only be brought against trustees in their official capacity, which is how they appeared in the action, and could not be brought against trustees in their individual capacity; “The fact that the appellant[s] have submitted themselves as trustees to the jurisdiction of the Florida courts does not amount to a submission of themselves to the jurisdiction of the court for the purpose of adjudicating claims against them personally.”).

Also, Smith correctly argues, and Dawson concedes, that the circuit court erred in awarding interest at the rate of eleven percent rather than nine percent. Because we are reversing the fee judgment, this issue is moot.

Reversed and remanded.

WHATLEY and SALCINES, JJ., Concur.


text:
    Samantha ROWE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-1627.
    District Court of Appeal of Florida, Fifth District.
    July 9, 2004.
    Rehearing Denied Aug. 18, 2004.
    Samantha Rowe, Quincy, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Rowe seeks a belated appeal of her criminal conviction and sentence. She alleges her privately-retained counsel failed to file a timely notice of appeal on her behalf. However, her petition, as filed, is defective because she did not allege that she requested counsel to file an appeal on her behalf within the time limits. Accordingly, we deny her petition without prejudice to file another petition which complies with Florida Rule of Appellate Procedure 9.141(c).

DENIED without prejudice.

SHARP, W„ GRIFFIN and PALMER, JJ., concur.


text:
    Rodger Keith EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2155.
    District Court of Appeal of Florida, First District.
    July 14, 2004.
    Rehearing Denied Aug. 19, 2004.
    Nancy A. Daniels, Public Defender, and Janice G. Scott, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charles J. Crist, Jr., Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, Attorneys for Appel-lee.
   PER CURIAM.

We affirm both issues on appeal. As to the first issue, the jury instructions given in the instant case distinguish it from the case relied on by Appellant, State v. Estevez, 753 So.2d 1 (Fla.1999). As to the second issue, this argument has previously been rejected by this Court. See Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted 854 So.2d 659 (Fla.2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed 821 So.2d 302 (Fla.2002).

AFFIRMED.

BOOTH, WEBSTER and DAVIS, JJ., concur.


author: MONACO, J.

text:
    Paul J. YOCOM, D.C., Appellant, v. WUESTHOFF HEALTH SYSTEMS, INC., et al., Appellee.
    No. 5D03-2847.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2004.
    Rehearing Denied Aug. 17, 2004.

      Paul J. Yocom, Titusville, Pro Se.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellee.
   MONACO, J.

Dr. Paul J. Yocom appeals the dismissal with prejudice of his third amended complaint in which he sought damages for medical malpractice against Wuesthoff Health Systems, Inc. While Dr. Yocom raises several issues challenging the dismissal in his appeal, the resolution of one issue appears to be dispositive. The trial court found that Dr. Yocom failed to comply with the malpractice presuit requirement to provide a verified written medical expert opinion to support the claim of malpractice, and that dismissal was appropriate in light of his noncompliance. We find no error and affirm.

The path traveled by this case to our doorstep is tortured, to say the least. Dr. Yocom is a doctor of chiropractic medicine who underwent a surgical procedure for the removal of a left ureteral stone at a hospital operated by Wuesthoff. He alleges that he suffered damages as a result of injury to his ureter incurred during multiple attempts to remove the stone. He sued Wuesthoff, as well as two physicians who treated him, although one physician was apparently dropped as this case progressed. Our appeal, however, involves only Wuesthoff.

While it is somewhat unclear, it appears that Dr. Yocom initiated a malpractice pre-suit investigation pursuant to section 766.203(2), Florida Statutes (2001), with respect to Wuesthoff, but failed to submit a verified written medical expert opinion from a medical expert, as required by the statute. Thereafter, in accordance with section 766.204, Florida Statutes (2001), Dr. Yocom sent a series of letters to Wues-thoff requesting that Wuesthoff provide him with copies of his medical record. Unfortunately, almost all of these letters appear to have been sent to the wrong physical address, and Wuesthoff denied receiving most of them. Wuesthoff did, however, admit to receiving one letter, to which it responded within two days. It did not respond by providing the records. Rather, it related to Dr. Yocom the copying charges that would be incurred, and required that he first pay this amount. The responsive letter also instructed Dr. Yocom to contact Executive Records Services, who apparently had physical custody of the records as the agent of Wuesthoff, and required him to execute a document waiving confidentiality in the provision of the records. Perhaps we should stop for a moment to analyze this.

Section 766.204 reads in its entirety, as follows:

(1) Copies of any medical record relevant to any litigation of a medical negligence claim or defense shall be provided to a claimant or a defendant, or to the attorney thereof, at a reasonable charge within 10 business days of a request for copies, except that an independent special hospital district with taxing authority which owns two or more hospitals shall have 20 days. It shall not be grounds to refuse copies of such medical records that they are not yet completed or that a medical bill is still owing.
(2) Failure to provide copies of such medical records, or failure to make the charge for copies a reasonable charge, shall constitute evidence of failure of that party to comply with good faith discovery requirements and shall waive the requirement of written medical corroboration by the requesting party.
(3) A hospital shall not be held liable for any civil damages as a result of complying with this section.

The statute requires the recipient to provide the records within tén days. It does not say that a bill for copies is to be provided in ten days. It does not say that the medical provider can direct the requesting party to another entity to get the records. It certainly does not say that it can require a patient to execute a document waiving confidentiality when the documents are being provided specifically to the patient. While this procedure concerning confidentiality might make some sense if the records are being provided to someone other than the patient, it certainly should not apply when a patient is receiving his or her own records. See § 456.057(4) and (5), Florida Statutes (2002). Moreover, subsection (3) of the statute appears to make that requirement superfluous in any event. If the story ended here, we might say that Wuesthoff failed to comply with section 766.204, and that the requirement of written medical corroboration was waived pursuant to subsection (2) of that statute. See Medina v. Public Health Trust, 743 So.2d 541 (Fla. 3d DCA 1999); Watson v. Beckman, 695 So.2d 436 (Fla. 3d DCA 1997); Escobar v. Olortegui, 662 So.2d 1361 (Fla. 4th DCA 1995). But there is more.

Apparently, Dr. Yocom never got the letter from Wuesthoff, but six months later some how found out that Wuesthoff wanted $98.97 to reproduce the records. He asked for an explanation of that rather odd charge, but continued to write to the wrong address. He still did not get his records. Eventually, he brought suit. His complaint went through four iterations before it was dismissed with prejudice. During that period of time, Dr. Yocom got his medical records through discovery, and presumably Wuesthoff got its $98.97. There appeared to be no complaint from Dr. Yocom concerning the amount of the charges.

There were several hearings respecting the motions to dismiss • filed by Wuesthoff and the other defendants to the various complaints filed by Dr. Yo-com, including an evidentiary hearing on the motion to dismiss the third amended complaint during which the trial court commendably tried to sort out the facts. At an earlier hearing the trial court discussed with Dr. Yocom the necessity of having a written corroborative expert opinion. The purpose of a corroborating medical opinion is to assure the legitimacy of the claim and to prevent the filing of baseless claims. See Kukral v. Mekras, 679 So.2d 278 (Fla.1996); Otto v. Rodri guez, 710 So.2d 1, 2 (Fla. 4th DCA 1998). The court explained to Dr. Yocom that he could cure the failure to comply with the statutory presuit requirements, so long as the cure was accomplished within the two-year limitations period provided for filing suit. See Kukral, 679 So.2d at 283; Florida Hosp. Waterman v. Stoll, 855 So.2d 271, 276 (Fla. 5th DCA 2003); Cohen v. West Boca Med. Ctr., 854 So.2d 276, 278 (Fla. 4th DCA 2003); Central Fla. Reg’l Hosp. v. Hill, 721 So.2d 404, 406 (Fla. 5th DCA 1998). Dr. Yocom responded by having his partner, another doctor of chiropractic medicine, provide an opinion. When the trial court suggested that the opinion of an expert knowledgeable of the standard of care for a urological procedure was necessary, Dr. Yocom, to his credit, readily agreed that the affidavit he supplied was insufficient.

This trial court was, of course, correct in its understanding of the law governing corroborating affidavits. For pre-suit purposes, the corroboration must come from a medical professional with appropriate experience or training about the subject upon which he or she is called to provide an opinion. See § 766.202(5), Fla. Stat. (2002); Apostolico v. Orlando Reg’l Health Care Sys., Inc., 871 So.2d 283 (Fla. 5th DCA 2004). Clearly a doctor of chiropractic is a medical professional. No evidence was ever produced, however, that indicated that the proposed expert possessed the requisite experience or training in urologic procedures that would enable him to offer a qualifying corroborating affidavit.

Dr. Yocom never came forward with a sufficient affidavit. Instead he relied on his assertion based on section 766.204(2) that Wuesthoff had waived that requirement by not properly responding to his records request. After the evidentiary hearing the trial court dismissed this case with prejudice, finding that Dr. Yocom had failed to obtain a verified written medical expert opinion to corroborate the malpractice, and finding further that Wuesthoff had not waived the affidavit requirement. Specifically, the court found that “any delay in receiving the requested medical records was caused by the Plaintiffs own errors, refusal to comply with instructions given to him, and lack of diligence.” That fact finding comes to this court bearing the presumption of correctness. As Dr. Yo-com failed to provide a corroborating medical expert opinion within the time required, the motion to dismiss was properly granted. See Godbold v. Coos-Novoa, 730 So.2d 767 (Fla. 5th DCA 1999).

We have considered Dr. Yocom’s argument concerning the requirement of Wues-thoff to obtain informed' consent from him prior to the operative procedure, but conclude that his position in this regard is without merit. See Cedars Med. Ctr., Inc. v. Ravelo, 738 So.2d 362 (Fla. 3d DCA 1999).

AFFIRMED.

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

      . Although this is obviously a chicken-and-egg proposition, and although the matter is not directly raised in this appeal, we are concerned that a record custodian can greatly lengthen the time for record production by simply sending a bill. Normally these problems are worked out amicably between the parties. If they cannot be resolved, then perhaps the hospital should make the records and have them available within ten days, but not turn them over until payment of the "reasonable” copying charge is made.

      . Chapter 766, Florida Statutes, was revised effective September 15, 2003. Ch.2003-416, section 87, Laws of Fla. The revisions apply to "any medical incident” for which the notice of intent is mailed after the new statute became effective. Thus, the new statute does not apply to the present case. The distinction between an expert for presuit purposes and an expert for purposes of testifying at trial appears to have been eliminated. Compare section 766.202(6), Florida Statutes (2003), with section 766.202(5), Florida Statutes (2002).


text:
    Jimmy Lee LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1414.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2004.
    Rehearing Denied Aug. 24, 2004.
    Tracy S. Carlin of Mills & Carlin, P.A., Jacksonville, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jimmy Lee Lewis, who had earlier been convicted of armed robbery with a weapon and sentenced to incarceration for forty years, appeals the summary denial of his Rule 3.850 motion for post-conviction relief. Although Mr. Lewis asserts six claims of ineffective assistance of counsel, we affirm the trial court’s denial of relief on the merits. We comment only on the final claim raised.

Mr. Lewis posits that the trial court intended to sentence him as a youthful offender, and instead sentenced him as an adult. He argues that his counsel was ineffective in not raising this issue on appeal. We note, first, that the claim made by Mr. Lewis is one of ineffectiveness of appellate counsel, and should therefore have been raised by a petition for writ of habeas corpus. See Hamilton v. State, 875 So.2d 586 (Fla. 2004); Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000); Fla. R.App. P. 9.141(c)(2). In order to conserve judicial resources, however, we ordered the sentencing hearing transcribed and have carefully reviewed that document. There is absolutely no indication that the trial judge intended to sentence Mr. Lewis as a youthful offender. •

AFFIRMED.

GRIFFIN, MONACO and TORPY, JJ., concur.

      . The appellant's conviction was affirmed per curiam without opinion in Lewis v. State, 842 So.2d 130 (Fla. 5th DCA 2003).


text:
    Lorenzo COLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1272.
    District Court of Appeal of Florida, First District.
    July 21, 2004.
    Rehearing Denied Aug. 27, 2004.
    Lorenzo Cole, pro se, petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    Malachi SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2690.
    District Court of Appeal of Florida, First District.
    July 22, 2004.
    Malachi Smith, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    Larry L. ARMSTRONG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2199.
    District Court of Appeal of Florida, First District.
    July 22, 2004.
    Larry L. Armstrong, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    Courtney SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1275.
    District Court of Appeal of Florida, First District.
    July 22, 2004.

      Courtney Sanders, pro se, petitioner.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    Christopher MONTOURE, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4815.
    District Court of Appeal of Florida, First District.
    July 29, 2004.
    Rehearing Denied Aug. 27, 2004.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charles J. Crist, Jr., Attorney General, and Robert R. Wheeler, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

This is an appeal from Appellant’s judgment and sentence. We affirm the trial court’s imposition of sex offender conditions of probation without discussion. See Williams v. State, 879 So.2d 49 (Fla. 1st DCA 2004). Because the trial court erred in scoring Appellant’s out-of-state conviction as a level seven offense, we reverse.

Appellant was convicted of lewd and lascivious molestation. When calculating Appellant’s scoresheet, the trial court included Appellant’s conviction for violation of Title 16, 16-15-140 of the South Carolina Code. The trial court determined that the out-of-state conviction was equivalent to section 800.04, Florida Statutes, which is a level seven offense. Under this calculation, Appellant’s maximum sentence was 46.9 months’ imprisonment. Appellant filed a Florida Rule of Criminal Procedure 3.800(b) motion arguing that the South Carolina law was not equivalent to section 800.04, Florida Statutes, because the South Carolina law punished an attempt and a completion of a lewd act, and the Florida version only punished the completion of the act. The trial court relied on Appellant’s own testimony to determine that Appellant did complete the act charged in South Carolina and to deny Appellant’s motion.

As conceded by the State, the trial court erred in considering Appellant’s testimony. In order to determine whether an out-of-state crime has a Florida equivalent, the trial court must compare the elements of the out-of-state crime to the elements of the Florida crime. Clark v. State, 823 So.2d 809, 812 (Fla. 1st DCA 2002). The trial court is not allowed to consider facts from the trial to make a determination of whether the out-of-state crime has an equivalent in Florida. Snipes v. State, 793 So.2d 1107, 1108 (Fla. 1st DCA 2001).

Because section 800.04, Florida Statutes, does not contain a provision for an attempt, it must be considered in conjunction with section 777.04(4)(a), Florida Statutes, which provides that the attempt of a lewd act upon a child will be ranked two levels below the offense attempted. Thus, Appellant’s attempted lewd act should have been scored as a level five offense, not a level seven offense. This change would reduce Appellant’s maximum sentence from 46.9 months’ to 44.5 months’ imprisonment. We therefore reverse the trial court’s denial of Appellant’s motion on this issue and remand for resentencing.

AFFIRMED, in part, REVERSED, in part, and REMANDED.

BOOTH, WEBSTER and DAVIS, JJ., concur.


author: THOMPSON, J.

text:
    Kirk OLIVER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3061.
    District Court of Appeal of Florida, Fifth District.
    July 30, 2004.
    Rehearing Denied Aug. 27, 2004.

      James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Kirk Oliver contends that the trial court abused its discretion in finding him guilty of a probation violation for failing to make sufficient restitution payments. We affirm.

As a condition of probation, Oliver was ordered to pay $246,761 in restitution. Although ordered to pay $1,200 per month restitution, Oliver had been paying only $100-150 per month. The trial court determined that Oliver was tithing $175 per month to his church; paying $50 a month for clothing; spending $50 per month to eat out; paying $35 per month for haircuts and grooming; and paying his father and grandmother $75 each per month because they helped him financially when he was in jail. The court also questioned Oliver about the monthly “surplus” after he deducted his expenses from his income. Oliver established, without contradiction, that his net income had been about $30,000 for several years. The trial court ruled that although Oliver could not pay the required $1,200 payment, he was capable of paying an amount greater than $100 to $150 per month. The trial court increased the restitution amount to $400 per month. Compare Robinson v. State, 773 So.2d 566 (Fla. 2d DCA 2000) (state failed to show probation violation where defendant was making payments on the restitution owed, and nothing in the record indicated that defendant could pay a greater amount). We conclude that it was within the trial court’s discretion to find a wilful violation of probation and to increase the restitution payments. Bearden v. Georgia, 461 U.S. 660, 672-673, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).

AFFIRMED.

SHARP, W. and MONACO, JJ., concur.

      . Oliver owed $230,000 to victims because of a scheme he devised. In the scheme, Oliver would purchase a person’s home and give the person back a second mortgage at a greater interest rate after receiving $10,000 from the person. Oliver would then take the home and mortgage elsewhere, but would not pay the mortgage. Many of the victims lost their homes, but some were able to keep their homes if they were able to pay approximately $10,000-15,000 and resume paying the mortgages.


text:
    Antonio D. FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0120.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.
    Appellant, pro se.
    Charlie Christ, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the Appellant’s response to this Court’s order to show cause, the State’s response to this Court’s order to show cause, and the Appellant’s reply to the State’s response, this appeal is hereby DISMISSED without prejudice to the Appellant to file a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). See Nutter v. State, 745 So.2d 446 (Fla. 1st DCA 1999).

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    Phillip WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1378.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Phillip White, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GERSTEN and GREEN, JJ.
   PER CURIAM.

Phillip White appeals an order denying his motion to correct illegal sentence. After review of the plea colloquy, we conclude that the written sentencing order conforms to the oral pronouncement.

Affirmed.


author: GRIFFIN, J.

text:
    Alan CHAMBERLAIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1009.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.

      Alan Robert Chamberlain, Chattahoochee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Alan Chamberlain [“Chamberlain”] appeals the summary denial of his rule 3.850 post-conviction motion. The issue presented in the motion as framed by Chamberlain was:

Was counsel ineffective in failure to investigate, depose, and present testimony in lieu of a “sandwich” closing argument?

This ground related to three identified witnesses, only one of whom we believe merits further attention:

The defendant specifically advised his appointed counsel to interview his son, Ryan C., who was present in the house during the alleged battery.

The trial court’s stated reason for summary denial was that Chamberlain had testified at trial, and the jury had found the victim to be more credible. On appeal, the State relies on the fact that Chamberlain’s motion did not specify his son’s whereabouts or allege that his son would have been available to testify at trial, a requirement in this district. See Milton v. State, 872 So.2d 965 (Fla. 5th DCA 2004). This requirement was recently upheld by the Florida Supreme Court in Nelson v. State, 875 So.2d 579 (Fla.2004).

In Nelson, the Florida Supreme Court explained the reason for this requirement:

In a rule 3.850 motion, a defendant must therefore assert facts that support his or her claim that counsel’s performance was deficient and that the defendant was prejudiced by counsel’s deficient performance. Under the circumstances of this case, a defendant would be required to allege what testimony defense counsel could have elicited from witnesses and how defense counsel’s failure to call, interview, or present the witnesses who would have so testified prejudiced the case. Reaves v. State, 826 So.2d 932, 940 (Fla.2002); see also Patton v. State, 784 So.2d 380 (Fla.2000) (holding that defendant’s motion was insufficiently pled because, among other reasons, the defendant failed to allege that there were persons available to corroborate the allegations made in his motion).
That a witness would have been available to testify at trial is integral to the prejudice allegations. If a witness would not have been available to testify at trial, then the defendant will not be able to establish deficient performance or prejudice from counsel’s failure to call, interview, or investigate that witness.

Nelson, 875 So.2d at 583 (footnote omitted).

Chamberlain asserted in his motion that:

The defendant specifically advised his appointed counsel to interview his son, Ryan C., who was present in the house during the alleged battery. Said attorney never did depose Ryan. If he had, then he would have had two very important facts stated: one — there was an argument, but that’s all. The door to the bedroom where the alleged battery took place was open and Ryan could see everything happening. There was no beer episode, nor did Alan Chamberlain ever straddle Kimberly Rudolph. Also, Ryan would have testified that she, Ms. Rudolph, attempted to break a window six times before succeeding on try number seven, thus going towards her state-of-mind. With this single witness, doubt could have been created enough so that the jury would have no choice but give the defendant credit for reasonable doubt as to her version.

These allegations are sufficient to make a prima facie showing of a corroborating witness that is not refuted by the record. Allegations concerning the availability of this witness are, however, missing, as the State has argued. Under Nelson, however, the lack of an allegation that the witness at issue was available is a pleading defect that a post-conviction movant ought to have an opportunity to remedy. We therefore reverse the order of summary denial and remand for the trial court to allow Chamberlain a reasonable time to file an amended and legally sufficient motion. If he does so, the trial court should conduct a hearing on the motion. If the requisite amendment is not made, the denial may be reinstated.

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.

      . The trial judge indicated that he was unfamiliar with the term "sandwich” as it relates to closing argument. As explained by Judge Cope in his opinion concurring in part and dissenting in part in Smith v. State, 730 So.2d 849, 849 (Fla. 3d DCA 1999): a "sandwich” opening and closing argument refers to Florida Rule of Criminal Procedure 3.250, which states: "a defendant offering no testimony in his or her own behalf, except the defendant's own, shall be entitled to the concluding argument before the jury.” See Van Poyck v. State, 694 So.2d 686, 697 (Fla.1997) (defense counsel clearly had tactical reasons for limiting his presentation of evidence, it was "important to save the sandwich,” i.e., "for the defense to argue first and last if there’s no evidence offered aside from the testimony of the defendant”).