author: GREEN, Judge.

text:
    Ruben FLORES, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 2D98-4115.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 2002.
    D. Russell Stahl, Tampa, for Appellant.
    Butler Burnette Pappas, Christopher J. Nicholas, and Robert C. Weill, Tampa, for Appellee.

      . Judge Altenbernd has been substituted for Judge Campbell, who was on the original Flores panel.

   ON REMAND FROM THE SUPREME COURT OF FLORIDA

GREEN, Judge.

Pursuant to the mandate of the Supreme Court of Florida and upon remand to this court, we resolve the remaining issue to determine whether Ruben Flores is entitled to a new trial. See Flores v. Allstate Ins. Co., 819 So.2d 740 (Fla.2002) (holding that insured’s fraud in connection with claim for PIP benefits did not void uninsured motorist (UM) coverage; provision allowing insurer to deny coverage “for any loss in connection with any material misrepresentation, fraud, or concealment of material facts, or if any material misrepresentation or omission was made on the application,” was ambiguous and did not permit denial of UM coverage for unrelated fraud). We conclude that the introduction of evidence highhghting Ruben Flores’s alleged fraud in the submission of personal injury protection (PIP) claims, in the context of an entire claim of fraud that the jury should not have considered when deciding the UM claim, requires a new trial. Accordingly, we reverse and remand for a new trial.

The operative facts in this appeal are outlined in the supreme court’s opinion and our prior opinion in Flores v. Allstate Insurance Co., 772 So.2d 4 (Fla. 2d DCA 2000). In Flores, this court explained that the trial court permitted the jury to decide two issues: (1) whether Mr. Flores had committed fraud that would result in the voiding of his insurance coverage, and (2) the extent of Allstate’s liability under the insurance policy if it was not void, particularly in light of Mr. Flores’s failure to wear a seatbelt at the time of the accident. After the jury returned a verdict in favor of Allstate on both issues, Flores moved for a new trial. The trial court denied the motion.

On appeal from the judgment entered based upon the jury’s verdict, Mr. Flores argued that the trial court erred in denying his motion for new trial. Specifically, Mr. Flores argued (1) that any fraud by Mr. Flores in asserting a claim for PIP benefits would not void the coverage Allstate provided under the UM section of the insurance policy, and therefore this issue was not properly placed before the jury; and (2) that the trial court erred in admitting evidence that Flores had submitted fraudulent bills in his claim for PIP benefits in respect to the other issues presented to the jury, particularly his failure to wear a seatbelt.

We initially held that the jury properly determined that fraud by Mr. Flores voided the UM coverage in his policy and that the trial court was correct in submitting to the jury the issue of his failure to wear his seatbelt. We certified to the Supreme Court of Florida as a matter of great public importance the question of whether an insured’s fraud as to one part of a divisible insurance policy voids the entire policy. Id. at 7.

In Flores, 819 So.2d 740, the supreme court rephrased our certified question and quashed our opinion. The supreme court concluded that the specific provision in Flores’s insurance policy addressing fraud was ambiguous. The court stated:

In this case, the fraud arose only in connection with a claim for PIP benefits and not in connection with the claim for UM coverage in which Allstate, as the UM carrier, stood in the shoes of the tortfeasor. We thus hold that this provision did not permit Allstate to deny UM coverage for unrelated fraud.

819 So.2d at 751. Thus, the supreme court effectively reversed the judgment entered to the extent it determined the insurance contract was void. However, the supreme court did not address whether the error in submitting this claim of fraud to the jury affected the jury’s verdict with respect to the extent of Allstate’s liability under the insurance policy if it were in effect.

The supreme court pointed out that this court never considered if the evidence of fraud was independently admissible on the other issues in the case or, alternatively, whether its admission constituted harmless error. 819 So.2d at 751. The court declined to address these issues and remanded the case to this court for further proceedings consistent with its opinion. We observe that the issue is not simply whether evidence of fraudulent or exaggerated medical bills was admissible in the UM portion of the trial but whether the admission of that evidence in the context of a trial that included a claim of fraud, which should not have been tried with the UM claim, requires a new trial of the UM claim.

Allstate admitted liability for the automobile accident in which Ruben Flores was injured. A review of the transcript reveals that Allstate placed great emphasis upon Ruben Flores’s alleged fraudulent acts. Allstate’s primary strategy at trial was to obtain a verdict voiding the UM coverage. The jury knew that its verdict finding fraud would cause Ruben Flores to have no insurance coverage and to receive no payment from Allstate on the UM claim. Thus, even though the jury was told to resolve the remaining damages issues, it was left with the impression that these issues were rather hypothetical. The jury did not apportion damages when it answered the seatbelt issues; it declared that 100% of Ruben Flores’s damages was caused by his failure to wear a seatbelt. Even though many of Mr. Flores’s injuries could be attributed to his failure to wear a seatbelt, this apportionment seems unusual.

It is not inconceivable that on retrial of the UM claim, Ruben Flores could testify in a manner that made the questioned PIP claims admissible for some limited purpose. See Mendez v. State, 412 So.2d 965, 966 (Fla. 2d DCA 1982) (stating that “whenever a witness takes the stand, he ipso facto places his credibility in issue”). It is also possible that a trial judge could determine that the prejudicial effect of some or all of this evidence outweighed its probative value. See § 90.403, Fla. Stat. (2001). This court cannot conclusively determine whether this evidence will be admissible in the context of a new trial. We can only determine whether the evidence of fraud improperly presented in an attempt to void the UM coverage was harmful as to the remaining issues resolved by this jury. Following a review of the record, we conclude that the admission of the evidence was harmful and that this error can be cured only by a new trial.

We therefore reverse and remand for a new trial.

ALTENBERND, J., and SCHEB, JOHN M., Senior Judge, concur.


source: Caselaw Access Project

author: GREEN, J.

license: Public Domain

text:
    Daryl Gene STANFORD, Appellant, v. THE State of Florida, Appellee.
    No. 3D01-2102.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 2002.

      Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General and Linda S. Katz, Assistant Attorney General, for appellee.
    Before JORGENSON, GREEN, and FLETCHER, JJ.
   GREEN, J.

Daryl Gene Stanford appeals his convictions and sentences for dealing in stolen property and giving false verification of ownership to a pawnbroker entered pursuant to a jury verdict. His sole contention on this appeal is that the evidence adduced at trial was insufficient to support the offense of giving false verification of ownership to a pawnbroker as a second-degree felony. He claims, as a matter of fundamental error, that he is entitled to have his conviction on this count reduced to a third degree felony and this cause remanded for resentencing. We agree.

Stanford proceeded to jury trial on the charges of grand theft third degree; dealing in stolen property; and pawnbroker/false verification/altered ID/$300 or more. The evidence presented in the light most favorable to the state revealed that Stanford pawned three items, a Black and Decker buffer, a paint spray gun and a small Casio TV at a South Dade pawnshop. The victim, Michael Lloyd identified these items as belonging or entrusted to him and testified that they had been missing from a storage location where Stanford had previously done work for the property owner. The undisputed evidence showed that Stanford received a total of $70 from the pawnbroker for all of the property pawned.

At the close of the state’s case in chief, defense counsel moved for a judgment of acquittal on the general grounds that “the state has failed to prove its burden by the preponderance of the evidence.” After the state rested, this same motion was renewed by defense counsel.

The jury acquitted Stanford of the grand theft charges, but convicted him of dealing in stolen property, a second degree felony not dependent on value; see section 812.019(1), Fla. Stat. (1999); and giving false verification of ownership to a pawnbroker, also a second degree felony; see section 539.001(8)(b)8.b., Fla. Stat. (1997). Stanford was sentenced to a split sentence of three years imprisonment followed by a term of three years probation.

Stanford’s sole contention on this appeal is that the undisputed evidence established that he only received $70 for the items pawned, and therefore his second degree felony conviction for giving false verification of ownership or alleged identification of ownership cannot stand and must be reduced to a third degree felony under section 539.001(8)(b)8. That section provides that:

[a]ny person who knowingly gives false verification of ownership or gives a false or altered identification and who receives money from a pawnbroker for goods sold or pledged commits:
a. If the value of the money received is less than $300, a felony of the third-degree ...
b. If the value of the money received is $300 or more, a felony of the second-degree ...

The state responds that this issue, on the sufficiency of the evidence, has not been preserved for appellate review where, as here, the defense counsel only offered a “boiler plate/bare bones” motion for judgment of acquittal at the trial below. See Stephens v. State, 787 So.2d 747, 753 (Fla.2001); Hayes v. State, 780 So.2d 918, 919 (Fla. 1st DCA 2001); Brandon v. State, 768 So.2d 1189, 1190 (Fla. 3d DCA 2000); Sanders v. State, 765 So.2d 778 (Fla. 1st DCA 2000); Whitfield v. Singletary, 730 So.2d 314 (Fla. 3d DCA 1999); James v. State, 745 So.2d 1141, 1142 (Fla. 1st DCA 1999). Moreover, the state maintains that the error raised on this appeal does not constitute fundamental error which may be raised for the first time on appeal. While we agree with the State that the motion for judgment of acquittal made below was insufficient to preserve this issue, we nevertheless find that the error challenged on this appeal is fundamental. See Troedel v. State, 462 So.2d 392, 394 (Fla.1984) (eon-viction imposed upon a crime totally unsupported by evidence has been found to constitute fundamental error); Stanton v. State, 746 So.2d 1229, 1231 (Fla. 3d DCA 1999) (same). But see Sanders v. State, 765 So.2d 778 (Fla. 1st DCA 2000) (both of which hold that the state’s failure to prove all elements of a charged offense does not constitute “fundamental error” which may be raised for the first time on appeal) citing James v. State, 745 So.2d 1141, 1142-43 (Fla. 1st DCA 1999). Moreover Stanford correctly points out the fundamental nature of such error includes the state’s failure to prove value where proof of such value is necessary to sustain a higher grade of offense. See E.R. v. State, 806 So.2d 529 (Fla. 2d DCA 2001); T.E.J. v. State, 749 So.2d 557 (Fla. 2d DCA 2000). Thus, in this case, where the evidence established that Stanford received an amount less than $300 (i.e.$70) for property pawned, his conviction for a second degree felony, pursuant to Section 539.001(8)(b)8(b), is fundamentally erroneous and cannot stand. Thus, he must be resentenced to a third degree felony.

In reversing his conviction and remanding for resentencing, Stanford further asserts, and the State properly concedes, that since there is a reasonable possibility that the improper gradation of the appellant’s conviction under Section 539.001(8)(b)8 may have influenced the trial court’s sentencing of the remaining conviction as well, we should remand this entire case for resentencing. See Lopez v. State, 811 So.2d 815 (Fla. 2d DCA 2002); Mohn v. State, 723 So.2d 873 (Fla. 2d DCA 1998). We therefore reverse the appellant’s second degree felony conviction and remand with instructions that it be reduced to a third degree felony conviction and that this entire cause be subject to a resentencing hearing.

Reversed and remanded with instructions.

      . In reaching its conclusion, the First District in James noted that the proposition that the state's failure to prove all the elements of a charged offense constitutes “fundamental error” which may be raised for the first time on appeal, conflicts with the supreme court’s opinion in Woods v. State, 733 So.2d 980 (Fla.1999) and State v. Barber, 301 So.2d 7 (Fla.1974). See 745 So.2d at 1143. We respectfully disagree. In fact, both Woods and Barber stand for the proposition that a challenge to the sufficiency of the evidence may not be raised for the first time on appeal. There is a distinction, we think, between a challenge to the sufficiency of the evidence and a challenge to the state's absolute failure to prove an essential element of the charged offense. For that reason, we disagree with First District's holding in Sanders and James and certify conflict


author: DELL, JOHN W., Senior Judge.

text:
    CAYMAN MANUFACTURING, INC., Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. 4D02-909.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2002.
    Joseph Heimovics, Thomas U. Graner and Allen H. Libow of Graner Root & Libow, P.A., Boca Raton, for appellant.
    Richard E. Doran, Attorney General, and Nicholas Bykowsky, Assistant Attorney General, Tallahassee, for appellee.
   DELL, JOHN W., Senior Judge.

In this non-final appeal, Cayman Manufacturing, Inc. appeals an order of the trial court granting the Department of Revenue’s motion to change venue. We reverse.

Appellant is a Florida corporation engaged in the business of manufacturing and selling cabinets. Appellant alleged in its complaint for declaratory judgment that in 1998, appellee, State of Florida Department of Revenue (the department), conducted an audit of appellant for October 1, 1992 through December 31, 1997 and determined that appellant owed more than $800,000 in sales taxes, penalties and interest. Appellant informed the department that it did not have the ability to pay this amount. Appellant’s complaint alleges that from January 20, 1999 to July 27, 2001, the parties exchanged correspondence concerning the compromise of the amount of the assessment. On October 9, 2000, the department issued a tax warrant and recorded it in Broward County, Florida. Appellant also alleged that on January 30, 2001 the department advised that pursuant to the tax warrant and section 213.67 Florida Statutes that it was withholding $129,545.00 due to be paid to appellant in Broward County, Florida.

The parties continued to correspond until July 27, 2001, when the department wrote a letter to appellant’s attorney. The department’s letter states that it is in response to appellant’s January 2, 2001 letter “in which you request the Department consider further review of the final assessment,” and informs appellant that its “time of appeal rights with the Department of Revenue has expired.” The department also refers to appellant’s assertion of error in the assessment, “revises its final order with regard to the final assessment,” offers to settle in accord with the terms set forth in an attached closing statement, and warns that the settlement must be accepted within 30 days, or the total assessed amount will be sustained. Appellant did not accept the department’s offer, but filed a complaint for declaratory and injunctive relief in the Circuit Court for the Seventeenth Judicial Circuit, in and for Broward County.

In Count I appellant asked the trial court to enter a declaratory judgment finding that the department, by its conduct, had violated appellant’s constitutional right to notice and due process, and sought a judgment declaring that appellant has a statutory right to protest or appeal the final tax assessment. Appellant did not challenge the amount of the assessment, but sought a ruling that it still has the right to do so, and asked the trial court to declare the tax warrant invalid and that it be vacated. In Count II appellant asked the court to enjoin the department from collection efforts during the pendency of its suit, and further asked for an injunction ordering the department to instruct the State Comptroller to release funds owed to appellant.

The department filed a motion to change venue to Leon County, Florida, to dismiss for lack of jurisdiction and failure to state a cause of action, and for costs and attorney’s fees. The department noticed only its motion to change venue for hearing. At the hearing on the motion to change venue, the department asserted the home venue privilege, and appellant asserted the sword-wielder exception to that privilege. The trial court granted the department’s motion to change venue to Leon County.

Appellant contends that the trial court erred when it transferred venue of this case from Broward County to Leon County. Appellant argues that the sword-wielder exception to the home venue privilege applies because of the department’s filing of the tax warrant in Broward County and because the department withheld funds allegedly due to it in Broward County. The department argues that appellant has failed to allege facts that rise to the level of action by the department necessary to meet the requirements of the sword-wielder exception to the home venue privilege. The department also argues that appellant’s complaint is either a straight declaratory judgment action for statutory interpretation, or an indirect challenge to “the department’s time-barred assessment.”

In Swinscoe v. State, Department of Revenue, 320 So.2d 11 (Fla. 4th DCA 1975), cert. dismissed, 337 So.2d 976 (Fla.1976) the taxpayers filed suit in Broward County seeking to enjoin the department from collecting certain documentary stamp taxes. The department moved to transfer venue to Leon County. This court stated:

Absent a waiver, a state agency may be sued in a county other than the situs of its official headquarters only when the official action complained of has, in fact, been or is being performed in the county wherein the suit is filed or when the threat of such action in said county is both real and imminent. Department of Revenue v. Arvida Corporation, 315 So.2d 235 ... [(Fla. 2d DCA 1975)]; Department of Revenue v. First Federal Savings & Loan Association, 256 So.2d 524 (Fla. 1st[2d] DCA 1971).

Id. at 12. In Swinscoe the department informed the taxpayers that a tax warrant and execution had been issued, and thereafter recorded the tax warrant in the official records of Broward County. This court held “It is our opinion that the official action taken by the Department of Revenue in this case was of such a nature as to require that [the taxpayers] be allowed to bring suit in Broward County against the Department of Revenue.” Id. at 12. We cited Department of Revenue v. First Federal, in which the First District discussed the basis for application of the sword-wielder exception to the home venue privilege:

The question to be answered in these cases may be said to be whether the state is the initial sword-wielder in the matter and whether the plaintiffs action is in the nature of a shield against the state’s thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on. On the other hand if plaintiff is the prime mover in the premises against a passive or dormant state or state agency then venue lies properly in the county wherein the state or the agency maintains its official headquarters.

Id. at 526.

In Carlile v. Game & Fresh Water Fish Comm’n., 354 So.2d 362, 363 (Fla.1977) the supreme court stated:

The so called “sword-wielder” doctrine applies only in those cases where the official action complained of has in fact been or is being performed in the county wherein the suit is filed, or when the threat of such action in said county is both real and imminent.
This exception to the common law privilege of venue is limited to those cases wherein the primary purpose is to obtain direct judicial protection from an alleged unlawful invasion of the constitutional rights of the plaintiff within the county where the suit is instituted, because of the enforcement or threatened enforcement by a state agency of a statute, rule or regulation alleged to be unconstitutional as to the plaintiff, and where the validity or invalidity of the statute, rule or regulation sought to be enforced comes into question only secondarily and incidentally to the main issue involved. Smith v. Williams, 160 Fla. 580, 35 So.2d 844 (1948);

Id. at 365 [additional citations omitted] [emphasis added].

Here, appellant’s complaint seeks protection from the enforcement of a recorded tax warrant, and release of funds allegedly due and payable to appellant in Broward County, and which are currently being withheld by the Comptroller upon direction of the department, pursuant to that warrant. Appellant does not challenge the constitutionality of a statute or rule, but rather asserts that the policies and procedures employed by the department in making the final assessment and issuing the tax warrant denied him due process and tolled the time within which he is required to appeal the assessment. Appellant seeks to have the tax warrant declared invalid, and injunctive relief to protect him from the department’s efforts to enforce the tax warrant.

We conclude from the record presented that appellant filed its action for declaratory judgment to obtain “direct judicial protection” from the enforcement of the tax warrant filed by the department in Bro-ward County. We therefore hold that the sword-wielder exception to the home venue privilege does apply and reverse the trial court’s order changing venue of this action from Broward County to Leon County.

Although the department argues on appeal that appellant’s action is time-barred, the department noticed and the trial court heard, only the department’s motion to transfer venue to Leon County. The issues raised in the department’s motion to dismiss were not considered by the trial court and we express no opinion as to the merits of those arguments.

Accordingly, we reverse the trial court’s order transferring venue of this action to Leon County, Florida and we remand this cause to the trial court for further proceedings including but not limited to the department’s motion to dismiss.

REVERSED AND REMANDED.

GUNTHER and FARMER, JJ., concur.


author: SHAHOOD, J.

text:
    Laura R. MORRISON, Appellant, v. ESTATE OF Joseph E. DeMARCO, Appellee.
    No. 4D01-556.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2002.
    Rehearing Denied Jan. 8, 2003.
    Alan M. Medof, Miami, for appellant.
    John W. Field of John W. Field, P.A., Deerfield Beach, for appellee.
   SHAHOOD, J.

Appellant, Laura R. Morrison, appeals an Order of the Court on its own motion holding her in contempt in connection with her representation of the estate of Joseph E. DeMarco. We affirm the Order Regarding Sanctions Imposed Against Laura Morrison, Esq. For Her Failing to Comply With the Court Order. This opinion addresses only the issue of whether the trial court had jurisdiction to order appellant, as the attorney for the personal representative of the Estate of Joseph E. DeMarco, to account for fees she received at the closing of the sale of the condominium property.

In this case the decedent, Joseph E. DeMarco, was shot and killed by his former wife Lucille DeMarco. At the time of his death he owned and was in possession of a Cadillac automobile valued at $27,000, personal property valued at under $10,000, and a condominium unit valued at $150,000.

Decedent, Joseph E. DeMarco and Lucille DeMarco were divorced by Final Judgment of Dissolution of Marriage dated October 10, 1995. Joseph DeMarco died intestate on October 22, 1996, a single man leaving no surviving spouse. James Joseph DeMarco, an adult male and decedent’s only child and only lineal descendant was appointed personal representative of decedent’s estate. Appellant, Laura Morrison, Esq., represented the personal representative, James Joseph DeMarco.

The decedent’s former wife attempted to obtain control and possession of the decedent’s condominium, alleging that she was entitled to the property pursuant to a marital settlement agreement between her and the decedent. She produced a quitclaim deed, purportedly executed by the decedent, to substantiate her claim, and was granted possession of the condominium. The quitclaim deed was later determined to be a forgery.

Thereafter, the personal representative, still represented by appellant, filed a petition seeking authorization from the court for the personal representative to sell the decedent’s condominium, which the court granted. Appellant then filed a petition to permit the personal representative to distribute the proceeds of the sale of the condominium in any way he saw fit. In the petition, it was asserted that the personal representative was the sole beneficiary of the homestead property; therefore, the property passed outside of the estate. The court entered an order directing the attorney handling the closing to distribute the proceeds of the sale “in the manner directed by the beneficiary James Joseph DeMarco.” The sale took place the following month. The closing statement indicated a payment of $23,500 in “notary fees” to appellant.

Approximately four months after the sale, a dispute arose in connection with appellant’s representation of the personal representative and he filed a motion to substitute John W. Field as counsel for the estate; the court granted the motion. Thereafter, a motion was promptly filed demanding from appellant an accounting for the $23,500 which she received at the closing on the sale of the condominium and an explanation as to the whereabouts of the Cadillac which was last under her control. Following a hearing which appellant did not attend, the court entered an order demanding an accounting on the two items and added the following written notation:

*Counsel must also account for any and all fees she received from this estate and any and all monies advanced to repair the 1996 Cadillac.
The accounting must be [received] within twenty-one (21) days or sanctions will be imposed.

Appellant filed a motion for rehearing alleging that she had voiced her objection to the accounting to Mr. Field prior to the hearing but had later learned that he represented to the court that she had no objection. It was appellant’s position that she was not required to account for the money she received at closing because the condominium was a non-probate asset. At a subsequent hearing, she explained that the money was distributed to her at closing, at the beneficiary’s direction, as a negotiated fee to cover “maybe thousands of hours of work that was done for the DeMarcos in a variety of cases in a variety of things.” There was no written fee agreement.

After hearing arguments, the court found appellant to be in contempt of court and ordered appellant to file an accounting of any and all fees she had received with respect to this particular case. When appellant failed to comply, the court entered the order under appeal, which holds appellant in contempt for failure to comply with the prior order and directs her to “repay to the Attorney for the Personal Representative any and all fees received from the above captioned estate” and “file an accounting listing all fees received by [appellant] while she was the attorney for the personal representative.”

On appeal, appellant argues that the trial court erred in requiring her to account for the money she received from the beneficiary after the sale of the condominium because the condominium is homestead property and, thus, a non-probate asset. We disagree and hold that the probate court had jurisdiction to order appellant to account for the money she received from the sale of that property.

Even though the payment of the $23,500.00 in “notary fees” was deducted from the proceeds of the sale of the condominium, a non-probatable asset, they were in fact payment for other services performed by appellant in connection with her representation of the estate. Based on the record before us, appellant has failed to demonstrate that those fees were unrelated to the probate of the estate and outside the court’s jurisdiction.

AFFIRMED.

KLEIN and HAZOURI, JJ., concur.

      . Although a petition to determine homestead status was filed, there is no corresponding order in the record.


author: PALMER, J.

text:
    Willie Robert LENNEAR, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2574.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2002.

      James B. Gibson, Public Defender and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Willie Robert Lennear (defendant) appeals his sentence which was imposed by the trial court in accordance with a plea agreement, contending that his sentence constituted cruel or unusual punishment. The law in Florida provides that a defendant who enters a guilty plea waives the right to prosecute a direct appeal therefrom unless he specifically reserves the right to same. See Fla. R.App. P. 9.140(b); § 924.06(3) Fla. Stat. (2000). See also Jones v. State, 636 So.2d 835 (Fla. 5th DCA 1994). Defendant’s claim of error, based solely on the proportionality of his sentence, is not a basis for a direct appeal because the defendant failed to reserve his right to appeal any issue before he entered his plea. Accordingly, this appeal is dismissed for lack of jurisdiction. Such dismissal is without prejudice to defendant seeking appropriate collateral relief in the trial court.

DISMISSED.

COBB and ORFINGER, JJ., concur.

      . Art I, § 17, Fla. Const.


text:
    GREENSTREET MANAGEMENT, INC., etc, Appellant, v. William C. BARKER, Phyllis Barker and Baypointe Development of St. Augustine, Inc., Appellee.
    No. 5D01-3706.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2002.
    Kevin C. Kaplan of Aragon, Burlington, Weil & Crockett, P.A., Miami and Todd K. Norman of Hartley, Wall & Norman, Orlando, for Appellant.

      Eric W. Ludwig, Altamonte Springs and Leigh Meininger of Meininger Fisher & Mangun, P.A., Orlando, for Appellee.
   PALMER, J.

Greenstreet Management, Inc., appeals the trial court’s non-final order denying its motion to dismiss or transfer for improper venue. Since the contract which forms the basis of this cause of action provides for exclusive venue in Miami Dade County, we reverse and remand for transfer.

Baypointe Development of St. Augustine, Inc., William C. Barker, and Phyllis E. Barker, filed a complaint in the Eighteenth Judicial Circuit, in and for Seminole County, seeking a declaration regarding the parties’ rights and obligations with respect to a loan agreement between Bay-pointe and Greenstreet. The complaint alleged that said loan was usurious. Greenstreet moved to dismiss or transfer the matter for improper venue, contending that the express terms of the loan documents provided for exclusive venue in Miami Dade County. The loan agreement provides in paragraph 21:

This agreement shall be governed by and construed in accordance with the laws of the State of Florida and exclusive venue for the enforcement hereof shall be Miami Dade County, Florida.

The promissory note which accompanied the loan document similarly provides:

The maker and holder hereof also agree that Miami Dade County, Florida, is the proper venue for any and all legal proceedings arising out of this note.

The limited individual guarantee signed by the Barkers provides: “Venue hereafter shall be in Miami-Dade County, Florida.” The Pledge and Security Agreement also states that: “Venue for the enforcement hereof shall be Miami-Dade County, Florida.”

The language included in these documents is mandatory, not permissive. See Sauder v. Rayman, 800 So.2d 355 (Fla. 4th DCA 2001)(holding that a forum selection clause in a contract is said to be a “mandatory forum selection clause” if it states that any litigation must, or shall, be initiated in a specified forum). Additionally, the language is not ambiguous. See Bovis Homes, Inc. v. Chmielewski, 827 So.2d 1038 (Fla. 2d DCA 2002)(holding that forum selection clause in home purchase agreement, which stated that venue for any action arising out of the agreement “shall be in a court of competent jurisdiction in the county or the district where the principal place of business of the seller is located,” was not ambiguous, and applied to home buyers’ action that arose out of the purchase agreement as well as their fraudulent misrepresentation claim). As such, the trial court erred in denying the motion for transfer.

Order REVERSED and cause REMANDED for transfer to Miami Dade County, Florida.

SHARP, W. and ORFINGER, JJ„ concur.

      . Jurisdiction is proper. See Fla. R.App. P. 9.130(a)(3)(A).


author: NORTHCUTT, Judge.

text:
    PLEASURES II ADULT VIDEO, INC. and North Street News, Inc., Petitioners, v. The CITY OF SARASOTA and Tim Litchet, as Manager of Building, Zoning and Code Enforcement for the City of Sarasota, Respondents.
    No. 2D01-1580.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2002.

      John W. MacKay of John W. MacKay, P.A., Tampa, for Petitioner Pleasures II Adult Video, Inc.
    Luke Lirot of Luke Charles Lirot, P.A., Tampa, for Petitioner North Street News, Inc.
    Michael S. Hooker of Glenn Rasmussen Fogarty & Hooker, P.A., Tampa, for Respondents.
   ORDER ON STIPULATION TO DISMISS

NORTHCUTT, Judge.

The City of Sarasota denied Pleasures II Adult Video and North Street News (the “Stores”) permits to operate adult-oriented businesses. Pursuant to the City’s adult-use ordinance, the Stores filed a petition Tor writ of certiorari in the circuit court challenging the City’s ruling, but the circuit court denied it. They then sought a writ of certiorari in this court to quash the circuit court’s decision. While the case was pending before us, however, the parties reached a settlement, and they have filed a stipulation for dismissal. This stipulation renders the Stores’ claims moot, and we cannot grant them any relief. But we write because this proceeding presents an issue that is a matter of great importance and of general public interest that will probably reoccur. Cook v. City of Jacksonville, 823 So.2d 86, 87 n. 1 (Fla.2002); Lee County v. S. Fla. Water Mgmt. Dist., 805 So.2d 893, 896 (Fla. 2d DCA 2001). The issue is whether the city was empowered to confer circuit court jurisdiction to review its executive decisions. We conclude that it had no such power.

The City enacted Ordinance 97-4015 to regulate the location and operation of adult-oriented businesses within its city limits. The Stores were existing adult-oriented businesses, but the ordinance required them to apply for new annual business permits within forty-five days. Tim Litchett, the manager of the Department of Building, Zoning and Code Enforcement for the City, denied their permit requests.

Ordinance 97-4015 provided that: “Any person aggrieved by a decision of the Department of Building, Zoning & Code Enforcement relating to an adult use permit may appeal to the Circuit Court for Sarasota County, by filing a Petition for Writ of Certiorari as provided under the Florida Rules of Appellate Procedure.” Following this review procedure, the Stores filed a petition for writ of certiorari in the circuit court, protesting the City’s denial of their applications. After the circuit court denied their petitions, the Stores filed the present petition for second-tier certiorari review in this court. We questioned whether a municipal ordinance was effective to create circuit court jurisdiction to review executive decisions. Therefore, we directed the parties to file supplemental briefs addressing whether the City’s denials of the Stores’ permits were quasi-judicial acts that a circuit court could review by common law certiorari, and if not, whether the Florida Constitution, the Florida Rules of Appellate Procedure, or the Florida Statutes conferred certiorari jurisdiction on the circuit court under these circumstances.

All parties agreed that the permit denials were not quasi-judicial acts reviewable by common law certiorari under Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla.1995). But the City contended that the circuit court had statutory certiorari jurisdiction pursuant to section 26.012, Florida Statutes (1997). We disagree.

Section 26.012(1) specifically confers circuit court jurisdiction over “appeals from final administrative orders of local government code enforcement boards ” (emphasis supplied). Section 162.02, Florida Statutes (1997), authorizes the creation of such boards “to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any codes and ordinances in force in counties and municipalities, where a pending or repeated violation continues to exist” (emphasis supplied). In this action, the Stores did not seek review of a city’s ruling that they had violated an ordinance. Cf. City of Sarasota v. Pleasures II Adult Video, Inc., 799 So.2d 325 (Fla. 2d DCA 2001) (quashing the circuit court’s issuance of a writ of certiorari determining that the code enforcement special master’s ruling that the Stores had violated the adult-use ordinance by operating without permits was not supported by substantial, competent evidence). Rather, they challenged the City’s refusal to issue an adult-use permit. As such, this case did not implicate the certiorari jurisdiction granted to the circuit court in section 26.012(1).

The City also argued that a municipality may confer certiorari jurisdiction on a circuit court as part of its authority under the Municipal Home Rule Powers Act, chapter 166, Florida Statutes (1997). It inferred this power from the legislative history of the act. Before the Municipal Home Rule Powers Act was enacted, municipal zoning was governed by chapter 176, Florida Statutes (1971). Section 176.02 gave a municipality authority to regulate the use of buildings within its city limits, and section 176.08 authorized the appointment of a board of adjustment to hear and decide appeals from decisions of administrative officers made pursuant to the chapter. Under section 176.16, anyone aggrieved by the board’s decision could petition the circuit court for a writ of certiorari. This chapter was repealed by the Municipal Home Rule Powers Act, chapter 73-129, section 5, at 247, Laws of Florida, but the Act provided that the repeal must not be interpreted as a limitation on a city’s powers. Instead, “municipalities shall continue to exercise all powers heretofore conferred on” them by the repealed chapters. Ch. 73-129, § 5, at 248, Laws of Fla.; see also § 166.042, Fla. Stat. (1997). The City contended this statement of legislative intent accords it the same authority to confer jurisdiction on circuit courts as that previously reposit-ed in section 176.16.

The fallacy in this argument is that section 176.16 was a general law by which the legislature conferred jurisdiction on the circuit court; the statute did not give municipalities the power to do so. Bestowing judicial authority to review municipal permitting decisions was not a power “heretofore conferred” on municipalities, and therefore it was not a power they retained under the Municipal Home Rule Powers Act.

The Municipal Home Rule Powers Act permits a municipality to act if (1) it is exercising its authority for a valid municipal purpose, and (2) there is no constitutional or statutory limit on the exercise of that authority. Basic Energy Corp. v. Hamilton County, 652 So.2d 1237, 1239 (Fla. 1st DCA 1995). Here, there is such a limit. Article V, section 5(b) of the Florida Constitution provides that the circuit court shall have jurisdiction of “appeals when provided by general law.” See also Fla. R.App. P. 9.030(c)(1)(C) (“The circuit courts shall review, by appeal ... administrative action if provided by general law.”). This language “delegates to the legislature the task of delineating the scope of the circuit court’s appellate jurisdiction.” Waite v. City of Fort Lauderdale, 681 So.2d 901, 902 (Fla. 4th DCA 1996); see also State v. Creighton, 469 So.2d 735, 739-40 (Fla.1985), receded from on other grounds by Amendments to the Fla. Rules of Appellate Procedure, 696 So.2d 1103 (Fla.1996). Thus, article V, section 5(b), is a constitutional limit on the authority of any body other than the legislature to confer jurisdiction on the state’s circuit courts.

Moreover, that constitutional provision imposes a further limitation: it authorizes the legislature to confer jurisdiction only by “general law.” In Board of County Commissioners of Hillsborough County v. Casa Development Ltd. II, 332 So.2d 651, 654 (Fla. 2d DCA 1976), this court held that a “special act” of the legislature was not sufficient to confer jurisdiction on the circuit court to hear an appeal of a county commission decision. See also State ex rel. Bettendorf v. Martin County Envtl. Control Hearing Bd., 564 So.2d 1227, 1228 (Fla. 4th DCA 1990); cf. Splash & Ski, Inc. v. Orange County, 596 So.2d 491, 492 n. 2 (Fla. 5th DCA 1992) (not reaching the question of whether the statutory certiorari provisions in a special act of the legislature were constitutional). The term “special law” means a “special or local law.” Art. X, § 12(g), Fla. Const. As the Casa Development court aptly remarked, a “special act” does not qualify as a “general law.” Nor does a local law. See Cherokee Crushed Stone v. City of Miramar, 421 So.2d 684, 685 (Fla. 4th DCA 1982) (noting that an ordinance of a municipality “may not confer jurisdiction on the circuit court where none otherwise exists”). This reasoning is supported by another provision in article V, section 5(b), which mandates that the “[j]urisdiction of the circuit court shall be uniform throughout the state.” Obviously, if special acts or local laws — or local ordinances — could confer jurisdiction to review the decisions of specific cities or counties in the local circuit courts, the courts’ jurisdiction would not be uniform throughout the state. Simply put, the Municipal Home Rule Powers Act did not permit the City to confer certiorari jurisdiction on the circuit court by ordinance.

Finally, we note that certiorari is a record-based review procedure. Here, a single city official made an executive decision to deny the Stores’ permit applications. No hearing was held, so it would be impossible for the circuit court to determine whether the decision was based on substantial, competent evidence. As a practical matter, when an executive makes a decision without conducting a hearing, there is nothing for the circuit court to review. See generally Robert Lincoln, Executive Decision Making by Local Legislatures in Florida: Justice, Judicial Review and the Need for Legislative Reform, 25 Stetson L.Rev. 627, 635-39 (Spring 1996); cf. Bd. of County Comm’rs of Brevard County v. Snyder, 627 So.2d 469, 474 (Fla.1993) (distinguishing comprehensive rezoning decisions, which are quasi-legislative, from specific rezoning decisions “where the decision is contingent on a fact or facts arrived at from distinct alternatives presented at a hearing,” which are quasi-judicial and properly reviewed by certiora-ri) (emphasis supplied).

For the reasons described above, we conclude that a city ordinance cannot eon-fer certiorari jurisdiction on a circuit court to review the city’s executive decisions. However, because the parties have settled their dispute and stipulated to dismiss this proceeding, our opinion will have no effect on the instant controversy.

Dismissed.

DAVIS, J„ and PAUL W. DANAHY, Senior Judge, concur.

      . See G-W Dev. Corp. v. Village of N. Palm Beach Zoning Bd. of Adjustment, 317 So.2d 828, 830 (Fla. 4th DCA 1975).

      . In Blue Moon Enterprises, Inc. v. Pinellas County Department of Consumer Protection ex rel. Pinellas County, Florida, 97 F.Supp.2d 1134, 1139 (M.D.Fla.2000), the court reviewed a similar adult-use ordinance that provided for review by certiorari in the circuit court. It held this review provision was sufficient to meet the requirement in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), that an adult-use licensing scheme provide for prompt review of administrative decisions. In doing so, the Blue Moon court remarked that section 26.012(1), Florida Statutes, stated the available remedy under Florida law. The plaintiffs in Blue Moon had been notified that their permits to operate adult-oriented businesses were being suspended because of violations of the ordinance. Thus, the Pinellas County Department of Consumer Protection was acting as a “code enforcement board" in that case, and jurisdiction was properly conferred on the circuit court under section 26.012. As discussed, that is not the situation here. We recognize that the Blue Moon court grounded its decision on a previous Eleventh Circuit case, Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251 (11th Cir.1999). Boss Capital, like this case, involved the denial of a license to operate an adult-oriented business. The ordinance at issue there provided that any decision “may be reviewed as a matter of right by the Circuit Court upon the filing of an appropriate pleading by an aggrieved party.” 187 F.3d at 1257. Without any analysis of the circuit court's jurisdiction, the Eleventh Circuit held the review provision was sufficient to meet the FW/PBS test. We note that the exact issue decided in both Boss Capital and Blue Moon is not raised in this case. To the extent that either decision implies that an ordinance can confer certiorari jurisdiction on a circuit court without being based on a statutory grant of jurisdiction, we disagree with them.

      . This argument was raised in G-W Development, 317 So.2d at 831, but that court declined to address it because the ordinance at issue did not attempt to confer certiorari jurisdiction.

      . Ch. 73-129, §§ 1-6, at 238-48, Laws of Fla.

      .We note that in the context of appeals of administrative actions, the distinction between the circuit court's "certiorari” jurisdiction and its "appeal” jurisdiction is somewhat muddled. See City of Deerfield Beach v. Vaillant, 419 So.2d 624, 625-26 (Fla.1982) (noting that the circuit court’s review of the decision of a city's administrative review board, although accomplished by petition for writ of certiorari, is actually a review to which the party is entitled as a matter of right and is effectively "an appeal”); Cherokee Crushed Stone v. City of Miramar, 421 So.2d 684, 685 (Fla. 4th DCA 1982).

      . The City relied on Metropolitan Dade County v. Hernandez, 708 So.2d 1008 (Fla. 3d DCA 1998), for the proposition that an ordinance conferring certiorari jurisdiction does not violate the uniformity requirement of article V, section 5(b), Florida Constitution. But jurisdiction over the ordinance at issue in Hernandez was provided by chapter 162, which authorizes counties to enforce their ordinances through code enforcement boards with appeal to the circuit court, or through code enforcement officers with appeal to the county court by trial de novo. Thus, a general law conferred the jurisdiction and the local ordinance merely incorporated it. Here, no general law provides jurisdiction.


author: PER CURIAM.

text:
    Eliezer STERN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2197.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2002.
    Eliezer Stern, Naples, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order summarily denying Appellant’s motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, is affirmed, but the trial court on remand is directed to correct the scrivener’s errors, to which the state’s response indicated it had no objection, namely: in the judgment (reflecting that Appellant was found guilty of “sell counterfeit goods,” when he was actually charged with, found guilty of, and convicted of vending goods with counterfeit trademarks); in the probation order (reflecting that Appellant entered a plea of guilty/nolo contendere and that he was being placed on probation on counts I-IV, when he pleaded not guilty and the information was amended prior to trial to reflect only one count); and in the disposition sheet (again reflecting four counts instead of one).

KLEIN, TAYLOR and MAY, JJ., concur.


text:
    Salvador NIEVES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3100.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2002.
    Salvador Nieves, Miami, pro se.
    Richard E. Doran, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Hersey v. State, 831 So.2d 679(Fla. 5th DCA 2002).

STONE, KLEIN, and TAYLOR, JJ., concur.


author: BROWNING, J.

text:
    Daniel K. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-0865.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.
    Pro se, for Appellant.
    Richard A. Doran, Attorney General and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Daniel Johnson (Appellant) appeals the trial court’s order denying his “Petition for Writ of Habeas Corpus Seeking Leave to File Belated 3.850.” Appellant alleges appointed trial counsel told him he would file direct and collateral appeals, Appellant relied on that representation and did not file his appeals pro se, and counsel failed to timely file the appeals. Appellant sought relief in the trial court pursuant to Steele v. Kehoe, 747 So.2d 931 (Fla.1999). The trial court properly denied Appellant’s claim, because entitlement to relief under Steele requires Appellant to prove privately retained counsel agreed to file an appeal but failed to do so. Medrano v. State, 748 So.2d 986 (Fla.1999). However, Appellant’s allegations state a facially sufficient claim for belated appeal under State v. Trowell, 739 So.2d 77 (Fla.1999). Because belated appeals are required to be filed in the appellate court to which the appeal should have been taken, the trial court lacked jurisdiction to grant this relief. Adams v. State, 801 So.2d 145 (Fla. 1st DCA 2001). Accordingly, we affirm the trial court’s order, but treat the motion as a proper request for a belated appeal, and remand with directions to follow the procedures set forth in Dubois v. State, 705 So.2d 713 (Fla. 1st DCA 1998).

AFFIRMED and REMANDED with directions.

BOOTH and POLSTON, JJ., CONCUR.


author: PLEUS, J. SHARP, W., J.,

text:
    Mark VILLELLA, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3011.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 2002.

      Richard J. D’Amico, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Mark Villella appeals his conviction for the first degree murder of his wife, Exelee Villella. Villella argues that the trial court abused its discretion in excluding corroborative testimony that Exelee had been having an affair. He also argues that the trial court should have granted his request for a mistrial, when the prosecutor commented to the jury about the lack of evidence that Villella presented concerning his wife’s purported affair.

In his opening statement, defense counsel told the jury that Villella stabbed his wife to death. However, counsel claimed the stabbing was not premeditated but instead was a “crime of passion” committed after Villella learned that his wife was having an affair and intended to leave him and take their child with her. Villella’s attorney conceded the only issue was whether the killing was premeditated first degree murder or a lower degree of homicide.

During the testimony of the state’s lead investigator, the jury heard two tape recorded interviews with Villella. In the first interview, conducted three days after her disappearance, Villella told the investigator that he and Exelee had been married about two years and they had a seventeen-month old son. Exelee had not seemed like herself for the last five or six weeks — she was working late, going out with the girls after work to drink and coming home late at night. Villella also noticed that Exelee had been talking on the telephone in private. On one occasion, Villella picked up the telephone and heard a man talking to her. One night she stayed out late, apparently drank too much and a male co-worker drove her home. Villella found an intimate letter that Exe-lee had written to the co-worker who had driven her home. After being confronted with the letter, Exelee admitted she was having an affair, agreed to marriage counseling and promised she would not take their son away. He told the investigator that a few days later, Exelee left in the middle of the night and he had not seen her since.

In the second interview, Villella confessed to stabbing his wife to death and concealing her body. He explained that on the night of her death, Exelee told him she no longer loved him, she wanted to leave him and take their son with her. Her lover was going to give up his wife, and she would go away with him. Villella told her he could not “take” another divorce. He had already lost two children from his prior divorce; he could not lose another one. The couple went to bed but Villella could not sleep. He tried to get Exelee to talk to him but she refused. Then he stated that he

[w]ent in the kitchen, got a knife, and stabbed her in the chest. She sat up, said, “I didn’t do anything.” She died right there. I loved that woman to death. I couldn’t take her leaving, losing her or the child. I just cracked. I couldn’t take it anymore. No sleep— losing her, losing my son. I didn’t know what to do. Soon as I did it, I knew it was wrong. I didn’t know what to do next.

Villella, a mortician for a funeral home, stated that he concealed his wife’s body in a casket with another corpse and then buried the casket. Investigators later exhumed the casket and Exelee’s body was recovered. The medical examiner testified that Exelee was stabbed four times in the chest. Three of those stab wounds were independently fatal. There was no evidence of a struggle or defensive wounds. The wounds were consistent with the victim being stabbed to death while asleep.

As part of Villella’s case, the defense called Mark Camp, a co-worker of Exelee. Before defense counsel began to question Camp about his purported affair with Exe-lee, the prosecutor objected to any further questioning of Camp on relevancy grounds. The defense responded that the evidence of the existence of the affair was relevant to corroborate Villella’s statements to the police and to prove that his belief his wife was having an affair was well founded. Otherwise, defense counsel argued, without any proof of an affair other than Villella’s statements, the jury might believe Villella made up the story. The state could argue that Villella killed his wife with premeditation and simply concocted the story of the affair in the hope of not being found guilty of first degree murder. The defense’s concern proved to be well-founded, as evidenced by the prosecutor’s response: “I’m not conceding that there was an affair, we don’t really know yet.”

The trial judge sustained the prosecutor’s relevance objection, but allowed the defense to proffer the proposed testimony. On proffer, Camp admitted he went out with Exelee one night and drove her home because she was too drunk to drive. However, he denied having an affair with her and denied calling her at home. He testified he did not recall telling investigators in the presence of his attorney that he was having an affair with Exelee or that he had called her house. The judge again sustained the objection. Defense counsel then proffered the testimony of the Investigator Robert Willis and Camp’s attorney, Michael Politis, who both testified that Camp admitted having the affair and admitted calling Exelee.

After the proffers, the trial judge revised his ruling to allow the defense to ask whether Camp had ever called Exelee at home. Defense counsel then called Camp and asked whether he had ever called Exe-lee at home. Camp denied calling her at home. He also testified that he did not recall telling Willis, in the presence of Politis, that he called Exelee at home. Willis and Politis then testified that Camp told them he did call Exelee at home.

During his initial closing argument, the prosecutor told jurors:

There are insinuations made by the defense that maybe Exelee Villella was having an affair. Those insinuations came from the defendant’s own statements, that is the only source for those insinuations and I will touch upon that because that is the only source as far as what possible [sic] was going on in their marriage. There was no other evidence that would indicate one way or another what was going on with Exelee Villella in her life so if one of you say, well what if she was having an affair, the response to that is that question is not relevant to what happened and you can play it out both ways. What if she was having an affair, is that justifiable for the defendant to stand over her sleeping body and stab her four times in the chest as she said, “I didn’t do anything.” What if she was not having an affair, does that still justify what the defendant did ....

(Emphasis added). During his rebuttal argument, the prosecutor told jurors:

The defense put on Mark’ Camp to, in essence, say, yes, I never called there. And they put on Investigator Willis and he said, yes, I thought he said he had called there. But you don’t get the benefit of knowing where, why, who, whether any conversations took place or whether she hung up, was it work related. The inference is that must be the lover, that must be the guy, the boyfriend, but ivere you ever given anything else?

(Emphasis added).

Defense counsel objected and moved for a mistrial. Defense counsel reminded the judge that having successfully sought to exclude evidence of the affair, it was fundamentally unfair for the prosecutor to now suggest that the defense failed to produce any independent evidence of the affair. The trial judge sustained defense’s objection but denied the motion for mistrial and gave the following curative instruction:

Ladies and gentleman, you are instruct (sic) to disregard the prosecutor’s last statement. The defendant is not required to present any evidence or prove anything.

The jury found Villella guilty of first degree murder. On appeal, Villella argues that the trial court erred in excluding evidence of the affair because that evidence was relevant to establish his defense that he killed his wife in the heat of passion.

The defense of “heat of passion” is well established in Florida. It can be a complete defense if the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation. See § 782.03, Fla. Stat. (2002); see also Fla. Std. Jury Instr. (Crim.) On Excusable Homicide. Or, as in the instant case, it can be used as a partial defense, to negate the element of premeditation in first degree murder or the element of depravity in second degree murder. See, e.g., Douglas v. State, 652 So.2d 887 (Fla. 4th DCA 1995).

One of our supreme court’s earliest explanations of the substance and purpose of this partial crime of passion defense is found in Whidden v. State, 64 Fla. 165, 59 So. 561 (1912):

A sudden transport of passion, caused by adequate provocation, if it suspends the exercise of judgment, and dominates volition, so as to exclude premeditation and a previously formed design, may not excuse or justify a homicide, but it may be sufficient to reduce a homicide below murder in the first degree, although the passion does not entirely dethrone the actor’s reason.

Id. at 561; see also Paz v. State, 777 So.2d 983 (Fla. 3d DCA 2000). The court in Whidden also stressed the importance of allowing evidence relevant to this defense, stating:

In a prosecution for murder in the first degree for the unlawful killing of a human being from a premeditated design to effect the death of the person killed, or any human being, the defendant under a plea of not guilty may introduce any relevant and proper evidence tending to show a lack of premeditated design in the admitted killing so as to reduce the offense charged to a lower degree of homicide.

Whidden, 59 So. at 561. The Fourth District Court of Appeal reaffirmed the importance of allowing a defendant to present such evidence, stating:

Where the defendant is being prosecuted for a killing which occurred in the heat of passion, however, evidence of the past relationship between the victim and the defendant, which would be relevant to show why the defendant went into a rage, is admissible even if it reflects badly on the character of the victim.

Douglas v. State, 652 So.2d 887, 890 (Fla. 4th DCA 1995).

In Auchmuty v. State, 594 So.2d 859 (Fla. 4th DCA 1992), the defendant shot and killed the victim after finding him naked in bed with his estranged wife. Au-chmuty sought to prove his emotional trauma from being separated and finding his wife in bed with another man was intensified by the fact that he had a special relationship with the man. Specifically, the defendant sought to present evidence that he had given the man a job, had done several favors for him and had even come to regard him as a son, despite the fact that this man was a convicted felon. The trial court excluded this evidence on the ground that it was irrelevant.

The appellate court reversed, however, stating:

The material fact which the excluded evidence in this case would have tended to prove was, as in Billeaud, central to the defense: that the unexpected discovery of the betrayal by a man he regarded as his son with his very own wife evoked a rage greater than the jury might have expected.

Id. at 860.

In Billeaud v. State, 578 So.2d 343 (Fla. 1st DCA 1991), the defendant stabbed his wife’s paramour to death after the wife left the defendant and moved in with the paramour. In a pre-trial motion, the state successfully excluded evidence of the wife’s prior extramarital affairs. The defense proffered the testimony of the wife that the defendant had accused her of having affairs in the past. They argued this evidence was central to their defense that the killing was a crime of passion.

On appeal, the First District Court of Appeal concluded the trial court abused its discretion in excluding the evidence because it was relevant to prove that the latest affair was the “straw that broke the camel’s back.” Id. at 344. The court noted the excluded evidence could have “significantly strengthened” the theory of defense. Id. at 345. Nevertheless, the court affirmed, finding the error harmless.

In Smith v. State, 314 So.2d 226 (Fla. 4th DCA 1975), the defendant was convicted of second degree murder in killing his wife and the court held that evidence of his wife’s prior affair would not be relevant because premeditation was not a factor in second degree murder. By way of dicta, the court noted that if the victim had told defendant she was having an affair, proffered evidence of the actual fact of sexual relations would be “relevant and properly admissible.”

In the instant case, the trial judge correctly identified the relevancy issue and the danger of having a “mini-trial” on Exelee’s purported affair. However, we conclude that the exclusion of any corroborative evidence of the existence of this alleged affair was error as it was vital to Villella’s defense that he acted out of passion. The jury heard Villella tell police he suspected an affair because his wife was making and receiving unusual phone calls, staying out late drinking, and on one such occasion, was driven home by another man. Villella then found an intimate letter Exelee had written to the man who had driven her home. Villella confronted his wife and she admitted that she was having an affair with this man. The excluded evidence (a) that Camp admitted the existence of an affair with Exelee, and (b) that he admitted driving Exelee home, would have provided independent corroboration of Villella’s statements to the police that he believed his wife was having an affair. Such evidence also would have tended to show his belief that his wife was having an affair was neither a baseless suspicion nor a fabrication made to cover up a cold-blooded murder. We conclude the trial court abused its discretion in excluding this evidence so central to the defense’s strategy.

The prejudice was compounded by the prosecutor’s improper argument to the jury that the defense failed to present any independent evidence of the affair. It is well established that it is improper for a prosecutor to comment on the defendant’s failure to mount a defense. See, e.g., Wolcott v. State, 774 So.2d 954 (Fla. 5th DCA 2001). These comments were especially inappropriate in light of the fact that the prosecutor had successfully sought to exclude the very evidence he now complained that the defense failed to produce. This court condemned such conduct in Reid v. State, 784 So.2d 605 (Fla. 5th DCA 2001), when it held that the state could not have exculpatory testimony excluded and then argue to the jury that absence of such evidence belied a self defense theory.

Quoting Gonzalez v. State, 774 So.2d 796 (Fla. 3d DCA 2000), this court stated:

The prosecutor’s use of the privilege of nondisclosure, first as a shield, then as a sword, unfairly prejudiced the defendant. While the State is free to argue to the jury any theory of a crime that is reasonably supported by evidence, it may not subvert the truth-seeking function of a trial by obtaining a conviction or sentence based on the obfuscation of relevant facts.

Reid v. State, 784 So.2d at 606-07.

In Garcia v. State, 564 So.2d 124 (Fla.1990), our supreme court held that the combined errors of excluding relevant payroll records and the prosecutor’s subsequent argument to the jury that the records did not exist warranted reversal.

Likewise, we cannot say beyond a reasonable doubt that the combination of the error of the exclusion of the affair evidence and the subsequent comment on the lack of it, was harmless. In this case, the admonition from the bench to disregard the statement was not enough to overcome the overall prejudice to the defendant. A mistrial should have been declared. Accordingly, we reverse Villella’s conviction and remand for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

COBB, J., concurs.

SHARP, W., J., concurs in part and dissents in part, with opinion.

SHARP, W., J.,

concurring in part and dissenting in part.

I agree that the prosecutor’s comments during closing arguments constituted a due process violation sufficient to warrant a new trial. However, I disagree the trial court abused its discretion in excluding evidence the victim was, in fact, having an affair.

As the majority points out, the defense of heat of passion is well-established in Florida. In Whidden v. State, 64 Fla. 165, 59 So. 561 (1912), the Florida Supreme Court explained:

A sudden transport of passion, caused by adequate provocation, if it suspends the exercise of judgment, and dominates volition, so as to exclude premeditation and a previously formed design, may not excuse or justify a homicide, but it may be sufficient to reduce a homicide below murder in the first degree, although the passion does not entirely dethrone the actor’s reason, (emphasis added)

Later, in Febre v. State, 158 Fla. 853, 30 So.2d 367 (1947), the court stated:

The law reduces the killing of a person in the heat of passion from murder to manslaughter out of a recognition of the frailty of human nature, of the temporary suspension or overthrow of the reason or judgment of the defendant by the sudden access of passion and because in such case there is an absence of malice. Such killing is not supposed to proceed from a bad or corrupt heart, but rather from the infirmity of passion to which even good men are subject. Passion is the state of mind when it is powerfully acted on and influenced by something external to itself. It is one of the emotions of the mind known as anger, rage, sudden resentment, or terror. But for passion to constitute a mitigation of the crime from murder to manslaughter, it must arise from legal provocation, (emphasis added).

30 So.2d at 369.

Thus the heat of passion defense involves a sudden or immediate emotional response. For example, in Whidden, the wife told the defendant, her husband, that the victim had assaulted her and threatened to kill her if she told anyone. About twenty minutes later the defendant shot the victim. In Febre, the- husband walked into his home and found his wife, scantily clad, and a nude man exiting their bedroom. A struggle immediately ensued and the man received a fatal skull fracture. In Paz v. State, 777 So.2d 983 (Fla. 3d DCA 2000), the defendant realized the victim had sexually assaulted his wife, immediately grabbed a knife from the kitchen counter, and stabbed the victim.

By his own account, Villella had no sudden or emotional response to the news that his wife was having an affair. Villella told authorities his wife had been acting differently for several weeks — she had been going to work early, staying out late and getting private telephone calls. On Sunday, five days before he stabbed his wife, Villella found an incriminating letter in his wife’s purse and confronted her. According to Villella, she admitted she was having an affair but he forgave her and they planned to go for marriage counseling.

On Monday night, Villella and his wife went to a movie. On Tuesday, Villella, his wife and their infant son went to the airport to pickup the body of Marjorie Hutchinson (Villella hid his wife’s body underneath the body of Mrs. Hutchinson in her casket). On Wednesday, Villella and his wife went out for dinner.

On Thursday, Villella went to the store and bought ingredients for dinner and bought his wife some roses. She told him she wanted a divorce. Villella, however, did not attack his wife after hearing this news. He took some Nyquil and went to sleep on the couch around 10:00 p.m. About two and one-half hours later, he awoke and went into the bedroom to talk to his wife. She wanted to sleep and asked to be left alone. Villella went back to the couch for awhile and took two Tylenol PM tablets. Villella then went into the kitchen, got a knife, went back into the bedroom and stabbed his wife four times in the chest.

Villella’s own account of events negates any “sudden passion” defense. His statements, along with his choice of weapon and the multiple stab wounds, are sufficient to establish premeditation. See Floyd v. State, 2002 WL 1926223, — So.2d — (Fla. Aug.22, 2002); Morrison v. State, 818 So.2d 432 (Fla.), cert. denied, — U.S. —, 123 S.Ct. 406, 154 L.Ed.2d 308 (2002); Perry v. State, 801 So.2d 78 (Fla.2001); Spencer v. State, 645 So.2d 377 (Fla.1994).

Villella was able to fully present his defense — a defense which was obviously rejected by the jury. The court allowed the defense to question and impeach the wife’s co-worker about telephone calls he made to the Villella home. These calls could have made Villella suspect or confirm that his wife was having an affair. However, the court did not allow other evidence of which Villella had no knowledge. If Villella were unaware of these events, they could not have influenced his mental condition. That evidence was properly excluded as irrelevant. See Boyd v. State, 162 So.2d 271 (Fla. 2d DCA 1964) (in prosecution for murder of victim allegedly having an affair with defendant’s wife, evidence of matters concerning the wife which had not been communicated to the defendant was properly excluded).

To admit evidence of the wife’s activities of which the defendant has no knowledge serves only to disparage the victim. While this is a clever defense tactic, the character of a homicide victim generally cannot be attacked unless there is an issue of self-defense. Douglas v. State, 652 So.2d 887 (Fla. 4th DCA), rev. denied, 661 So.2d 823 (Fla.1995).

However, I do agree with the majority that the prosecutor’s improper comments during closing arguments warrant a new trial. First, these comments suggested the defendant has the burden of proof. See, e.g., Wolcott v. State, 774 So.2d 954 (Fla. 5th DCA 2001) (prosecutor may not comment on defendant’s failure to mount a defense because doing so could lead jury to erroneously conclude that defendant has the burden of doing so). Second, the jury was not presented with additional evidence of the wife’s affair because it was excluded by the court at the request of the prosecutor.

An improper argument by a prosecutor can make a trial so fundamentally unfair as to deny the defendant due process. State v. Gates, 826 So.2d 1064 (Fla. 2d DCA 2002). The prosecutor may properly argue that the evidence supports a finding of premeditation and point out the flaws in the defense theory of a “heat of passion” killing. However, it is fundamentally unfair to suggest there was no evidence of the affair when the prosecutor was successful in excluding this evidence. The prosecutor’s comments convey the idea there was no evidence because there was no affair, when in fact the defense proffered this evidence and sought to have it admitted. The prosecutor’s obligation is to secure justice, not victory at any cost. Diaz v. State, 797 So.2d 1286 (Fla. 4th DCA 2001); Blackshear v. State, 774 So.2d 893 (Fla. 4th DCA 2001). Because of the fundamentally unfair comments of the prosecutor, I concur with the granting of a new trial.


author: GRIFFIN, J.

text:
    Raymond W. TOMPKINS, Trustee, Appellant, v. FIRST UNION NATIONAL BANK, et al., Appellees.
    No. 5D01-3624.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 2002.

      Scott D. Clark, of Scott D. Clark, P.A., Winter Park, for Appellant.
    Janet M. Courtney and Matthew G. Brenner, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appel-lees.
   GRIFFIN, J.

This is an appeal from a final order dismissing a lawsuit against First Union National Bank and First Union Brokerage Services for failure to prosecute pursuant to Rule 1.420(e), Florida Rules of Civil Procedure. We affirm, t

Plaintiff below, Raymond W. Tompkins [“Tompkins”], initiated an action on June 16, 1999 against defendants below: Cecil T. Winters [‘Winters”]; Charles Bernardi [“Bernardi”], individually and as a member of the last Board of Directors of Capital Trading of North America, Inc. [“Capital Trading”], a dissolved Florida corporation; First Union National Bank of Florida [“First Union”]; and First Union Brokerage Services, Inc. The complaint alleged that in 1996 Tompkins entered into an agreement with Winters and Bernardi pursuant to which he invested $300,000 in their investment program. When Tompkins became concerned about his investment, he entered into an escrow agreement with Winters to gain access to the assets. The complaint further alleged that First Union refused to transfer the securities to the escrow account. The claims alleged in Tompkins’ complaint included I) fraud in the inducement against Winters; II) breach of contract against Capital Trading; III) civil conspiracy to commit fraud in the inducement against Winter and Bernardi; IV) breach of contract against First Union; V) negligence against First Union; VI) conversion against First Union; VII) tortious interference with advantageous business relationship against First Union; and VIII) breach of fiduciary duty against First Union.

On July 19, 1999, First Union filed an amended motion to dismiss counts IV, V, VI and VII. On August 25, 1999, the trial court entered an order dismissing counts IV, VII and VIII without prejudice, dismissing counts V and VI with prejudice, and giving Tompkins twenty days to file an amended complaint. On October 6, 1999, Tompkins filed a motion for extension of time in which to serve Bernardi because the Bernardi served by Tompkins was the wrong Bernardi. The motion stated that Tompkins believed he now had a viable address for Bernardi and would attempt service if granted the extension of time. On October 26, 1999, the motion was granted to give Tompkins forty-five additional days to serve Bernardi. A second amended complaint with counts I through V above was filed by Tompkins on June 9, 2000. First Union filed a motion to dismiss count V of the second amended complaint on July 7, 2000, but apparently this motion was not set for a hearing and an order was never entered. On March 21, 2001, Tompkins filed a motion for substitution of counsel which was granted by order entered on April 6, 2001.

First Union filed a motion to dismiss for failure to prosecute on July 12, 2001. The motion stated that there was a failure to prosecute pursuant to Rule 1.420(e) because the last pleading was filed on July 6, 2000, and the motion and order for substitution of counsel filed in March and April 2001 did not constitute sufficient record activity to prevent the dismissal. On August 9, 2001, Tompkins filed a verified response to the motion to dismiss alleging that the non-record activity demonstrated a sufficient intent by Tompkins to move the case forward to conclusion which warranted a denial of dismissal. Tompkins relied on efforts to locate and serve Winters and Bernardi, who he claimed were “essential ingredients” to moving the case forward. Tompkins conceded that no record activity occurred during the time period of one year and that the change of counsel pleadings appearing in the record in March and April did not by themselves constitute sufficient record activity.

After a hearing on August 16, 2001, the trial court entered an order granting the motion to dismiss for failure to prosecute on the ground that the non-record activity referenced in Tompkins’ verified response was not sufficient to demonstrate good cause why the action should not be dismissed. This was the correct ruling to make. The excuse offered by Tompkins in his verified response to the motion to dismiss — that he was attempting to serve Winters and Bernardi with process does not warrant reversal. This plainly is not a case like the limited circumstances present in such cases as Weaver v. The Center Business, 578 So.2d 427 (Fla. 5th DCA 1991), or Jain v. Green Clinic, Inc., 830 So.2d 836 (Fla. 2d DCA 2002). In Weaver, the court was convinced that the case was unable to move until the witness was located and correctly identified. Here, nothing other than appellant’s bare contention supports this claim that the case against First Union could not proceed until Winters and Bernardi were located and served. To the contrary, the record suggests that the suit against First Union could have been advanced in a variety of ways. Indeed, this seems the rare case where Rule 1.420(e) should be and has been applied according to its express terms. We find no abuse of the trial court’s discretion in failing to find the existence of a compelling reason which prevented or excused the prosecuting party from actively pursuing the case in court. Weaver, 578 So.2d at 430.

AFFIRMED.

SAWAYA, J., and TORPY, V., Associate Judge, concur.

      . Tompkins also initiated an action against these same parties in 1996 which was dismissed for lack of prosecution. Both Winters and Bernardi were served in this action. A final judgment of $317,601.11 was entered against Winters in that action.

      . First Union asserted in an affirmative defense that First Union properly restrained the account because of adverse claims being made to the funds by other persons claiming to have ownership of the funds.

      . The Jain decision, which, as of this writing, remains pending on motion for rehearing, turns on a professionalism issue not present here.


author: COBB, J. SHARP, W., J., PLEUS, J.,

text:
    John H. WRIGHTINGTON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellees.
    No. 5D01-3698.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 2002.
    John H. Wrightington, Edgewater, Pro Se.
    John D. Maher, Tallahassee, for Appel-lee.
   COBB, J.

This is an appeal from an order of the Florida Unemployment Appeals Commission upholding the determination by the appeals referee that John Wrightington was properly terminated from employment by the Greater Daytona Beach Area Young Men’s Christian Association, Inc. (YMCA) on the basis of misconduct connected with work within the meaning of unemployment compensation law; more specifically for “insubordination involving the use of profane language.”

It is uncontroverted that Wrightington directed vulgar and abusive language to the employer’s chief executive officer, Randy Brown, during a meeting between the two in July, 2001, at which meeting Wrightington was terminated. Although Wrightington asserts that his termination preceded the verbal abuse, Brown testified that the abuse preceded the termination— and the referee accepted Brown’s version. Since the finding in regard to a disputed fact has record support, we accept it for appellate purposes. See Scholastic Book Fairs, Inc. Great American Division v. Unemployment Appeals Commission, 671 So.2d 287 (Fla. 5th DCA 1996).

On the other hand, the Commission asserts in its brief that the conversation between Brown and Wrightington “was overheard by the business manager [Hickey] who was standing at the open door of the CEO’s office.” The referee did not make this finding and the business manager did not testify. The testimony is conflicting as to whether Hickey stood outside the office open door or was busy doing other things with computers during the exchange between Wrightington and Brown. Hickey was asked to leave the room prior to the exchange between Brown and Wrightington and did so. The testimony of Brown was to the extent:

I asked to meet with Jack [Wrighting-ton]. When Jack got through with doing some of the things he was doing, working with people, he came into the office. We sat down, and at that time, Hal Hickey, who was our business manager, was sitting there as a witness. Jack said that he would not meet if there was a witness. So Hal was excused and Hal stood right outside the door. The door was left open. At that point Jack wanted to start the conversation ....

Whether or not Hickey overheard anything is problematic. What is clear is that Wrightington did not want anyone except Brown to hear his statement.

In determining whether the use of vulgar language comes within the purview of an unemployment compensation statute’s definition of misconduct, courts have considered several factors including the frequency of the vulgar utterance, the presence of any fellow employees or clients, the existence of any provocation, and the object of the abusive language. Benitez v. Girlfriday, Inc., 609 So.2d 665 (Fla. 3rd DCA 1992). In Benitez, the issue was whether Benitez’s isolated use of obscene language, directed to a supervisor outside the presence of other persons, constituted misconduct under the unemployment compensation statute so as to bar a claim for benefits. The Third District found that the use of offensive language in such an isolated and private argument was not misconduct as defined by the statute. See also Cullen v. Neighborly Senior Services, Inc., 775 So.2d 392 (Fla. 2nd DCA 2000) (meeting between claimant and supervisor during which claimant raised his voice at supervisor did not constitute misconduct that warranted denial of unemployment benefits to claimant since meeting occurred in a private office and there were only two other employees present); Jorge v. Florida Unemployment Appeals Commission, 765 So.2d 889 (Fla. 3rd DCA 2000) (claimant’s use of an obscenity when the manager of the restaurant where he was employed ordered him to continue working did not amount to misconduct where use of foul language was an isolated incident and other employees and restaurant patrons did not hear the claimant’s comments); Johnson v. Florida Unemployment Appeals Commission, 513 So.2d 1098 (Fla. 3rd DCA 1987) (employee was not disqualified from unemployment benefits for using vulgar language where such language was not part of a pattern of behavior and did not occur in the presence of others). Compare Davis v. Unemployment Appeals Commission, 715 So.2d 1157 (Fla. 5th DCA 1998) (unemployment compensation properly denied where record was clear that Davis uttered profanities directed toward her manager in the presence of other employees); Suluki v. Unemployment Appeals Commission, 644 So.2d 552 (Fla. 5th DCA 1994) (unemployment compensation denied where Suluki openly and loudly cursed the company president and undermined her authority in front of other employees, including two new employees in training); Hines v. Department of Labor and Employment Secu rity, 455 So.2d 1104 (Fla. 3rd DCA 1984); and Varig Brazilian Airlines v. Florida Department of Commerce Division of Employment Security, 354 So.2d 921 (Fla. 3rd DCA 1978) (employee’s repeated use of vulgarities in front of customers, among other things, was sufficient to warrant disqualification from benefits).

Given the fact that this was an isolated incident of cursing and that it took place within the confines of a private office there is no substantial and competent evidence to support a finding of misconduct under the unemployment compensation statutes.

Since our foregoing considerations mandate reversal of the Commission’s order, we do not reach the due process concerns raised by the appellant in regard to notice that insubordination regarding profanity was an issue for consideration at the hearing before the referee.

REVERSED AND REMANDED.

SHARP, W., J., concurs specially with opinion.

PLEUS, J., dissents with opinion.

SHARP, W., J.,

concurring specially.

I agree with the dissenting opinion written by Judge Pleus that in some contexts use of profane or obscene language directed at an employer — whether overheard by others or not — is grounds for denial of unemployment benefits. Indeed, in a church work place or perhaps a YMCA work place, language used by employees should be more discrete than in other work places such as bars. However, after reading the record, I conclude this is not such a case because use of profane or obscene language was not the reason for the employee’s (Wrightington’s) termination.

The record discloses that Brown’s (the CEO of the Greater Daytona Beach YMCA) major issue with Wrightington was that Wrightington failed to follow the chain of command in presenting complaints about Brown to the Board of Directors, other staff, and members of the YMCA. Wrightington admitted he had been contacted by members of the Board and others, including his immediate supervisor, Reeves, about Brown’s administrative and managerial skills, which Wrightington thought were inadequate. He had also, together with others, accused Brown of various improprieties including taking subordinate colleagues to a lap dancing bar in Tampa and talking to subordinate employees about explicit sexual matters. Further, there was an ongoing disagreement between Wrightington and Brown about the number of hours Wrightington was required to work. In sum, there was disagreement and antagonism between the two men, over more than a two year time span.

Wrightington asserted he was at all times deferential to Brown and not rude or profane, until he was terminated. Brown did not deny this.

The conflict between the two men came to a head on July 6, 2001. Brown admitted he forced Reeves, Wrightington’s immediate supervisor, to resign the day before because Reeves refused to fire Wrightington. Wrightington knew when Brown arrived at his workplace on July 6th, that Reeves had resigned because he could not ethically fire him, and that Brown knew he was going to fire him. Brown admitted he had prepared and brought with him to the workplace a letter formally terminating Wrightington.

Knowing that he was going to be fired and that Reeves, his friend and direct supervisor, had been forced to resign, Wrightington requested that the two men meet alone. A witness Brown had brought with him, the business manager, left the office. Although Brown later suggested the business manager was standing just outside the office to listen to the conversation, there was no proof of that. Further, Brown tacitly admitted the business manager had in fact gone to Wrightington’s work station and was attempting to down load his computer while their conversation took place. Why would he be doing that if he did not also know Wrightington had been fired?

Wrightington admitted he called Brown profane and obscene names at that meeting. He explained this by referring to a song by Kenny Rogers called the “Coward of the Country.” One of the verses goes “twenty years of crawling was welling up inside him.” Wrightington felt free to tell Brown what he thought of him, man to man, in the context of already having been fired.

The appeals referee found that the employer discharged the claimant for insubordination involving the improper use of the chain of command and for insubordination involving improper conduct. With regard to the improper use of the chain-of-command ground, the referee found that charge not supported by competent and substantial evidence. But he did find Wrightington’s use of profane language was a valid insubordination ground and that it was established “by the claimant’s own testimony.”

However, based on Wrightington’s testimony, he knew of the decision to fire him and the profanity occurred after that decision had been made. Thus I conclude there was not competent evidence to support the referee’s finding on the second ground either. I agree Wrightington is entitled to unemployment compensation benefits.

PLEUS, J.,

dissenting.

I respectfully dissent.

In my opinion, insubordination involving the use of profane language is grounds under the statute for a denial of unemployment benefits, especially when the profanity is used at a YMCA. To me, the standards of behavior which the employer is entitled to expect vary depending on the circumstances. The YMCA is more than a mere neighborhood gym. People using YMCA facilities have the right to expect an atmosphere of civility and moral conduct reflected in the ideals of the sponsor. I would affirm the denial of benefits to John Wrightington.


author: ROUSE, R. K., JR., Associate Judge.

text:
    Rocco LAGIORGIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-395.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 2002.

      Robert J. Buonauro of Robert J. Buo-nauro, P.A., Orlando, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ROUSE, R. K., JR., Associate Judge.

Rocco LaGiorgia appeals his convictions for sexual battery and lewd act in the presence of a child. We affirm. We reject LaGiorgia’s assertion that fundamental error occurred in the admission of testimony that was not objected to at trial. We decline to address LaGiorgia’s claim of ineffective assistance of counsel, because the facts giving rise to this claim are not readily apparent on the face of the record. See Stewart v. State, 420 So.2d 862 (Fla.1982). These claims are more properly raised in a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. McKinney v. State, 579 So.2d 80, 82 (Fla.1991).

AFFIRMED.

COBB and SHARP, W., JJ., concur.


text:
    C.J.Q., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-504.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2002.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Jennings, 666 So.2d 131 (Fla.1995); Jackson v. State., 419 So.2d 394 (Fla. 4th DCA 1982).

COBB, SHARP, W., and ORFINGER, JJ., concur.


author: POLEN, C.J.

text:
    Ronnie WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2353.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2002.
    Rehearing Denied Jan. 10, 2003.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, C.J.

Ronnie Wallace contends the trial court lacked jurisdiction to entertain the State’s motion to set restitution on May 23, 2001, and hence the two restitution orders entered subsequent to that hearing must be reversed. We agree.

On October 16, 2000, Wallace pled no contest to insurance fraud and grand theft. The trial court accepted his plea, withheld adjudication, and placed Wallace on probation, ordering restitution, with the amount to be determined at a later date. A restitution hearing was duly held on December 6, 2000; Wallace was present, however the State provided the victim was not and therefore they could not proceed at that time. The court orally pronounced, “Okay. State can’t go forward. No restitution. Thank you.” At no time did the State object or move for a continuance. The trial court then entered a written order denying restitution consistent with its oral pronouncements. This order was never appealed by the State.

Thereafter, on January 26, 2001, the State, represented by a new prosecutor, came before the trial court and argued it was now ready to move forward on Wallace’s restitution hearing. After taking the matter under advisement on a number of occasions, finally, on May 23, 2001, the trial court allowed the State to proceed, accepting testimony from the insurance agent who had investigated the underlying claims. Thereafter, the trial court entered two restitution orders, one in the amount of $9,012, payable to State Farm Insurance, and one in the amount of $753.30, payable to the State Department of Insurance Fraud.

Simply, the trial court lacked jurisdiction to entertain, and rule on, the State’s motion to set restitution on May 23, 2001. The State failed to timely appeal the December 6, 2000 order denying restitution. See Fla. R.App. P. 9.140(c)(l)(M); 9.140(c)(3). Arguments advanced by the State now, on this appeal, that that order should never have been entered in the first place, are unavailing. Moreover, while we agree with the general proposition that a trial court generally has jurisdiction to set the amount of previously ordered restitution up until the termination of the defendant’s probation, we disagree with the State’s argument that the trial court could have set the amount of Wallace’s restitution at any time up until the termination of his probation simply because the trial court had originally ordered restitution when it accepted his plea. Cf. Gladfelter v. State, 618 So.2d 1364 (Fla.1993). Here, although the trial court initially ordered restitution, three weeks later it expressly ordered “no restitution,” an order which the State failed to appeal. The entry of this order cannot be ignored. That order was final, that order expressly denied restitution, and that order was never appealed. The trial court lacked jurisdiction to subsequently entertain the State’s motion to set restitution. Accordingly, the two restitution orders entered subsequent to the May 23, 2001 hearing are reversed.

REVERSED and REMANDED.

GUNTHER and HAZOURI, JJ, concur.