text:
    Kevin JACKSON, a/k/a Corey Wilson, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-121.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before COPE and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Defendant-appellant Kevin Jackson appeals his convictions for racketeering and conspiracy to commit racketeering in violation of Chapter 895, Florida Statutes, the Florida RICO (Racketeer Influenced and Corrupt Organization) Act, contending that the evidence was legally insufficient on those counts. We agree and reverse on those counts while affirming the defendant’s remaining convictions.

In 1997 and 1998 the Miami-Dade police department undertook investigation of drug sales which were occurring at Riverside Park in the Little Havana area of Miami. As a result of the investigation, 28 defendants were charged with 177 crimes. All 28 were charged in counts 4 and 5 of the information with racketeering in violation of subsection 895.08(3), Florida Statutes (1997), and conspiracy to commit racketeering in violation of subsection 895.03(4), Florida Statutes (1997). This defendant was tried separately from the other defendants.

Count 4 charged the defendant with racketeering. Under subsection 895.03(3), Florida Statutes, “It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity....” Under the Florida RICO statute, an “enterprise” includes a criminal street gang. Id. § 895.02(3). It can also include a “group of individuals associated in fact although not a legal entity.” Id.

The State charged the defendant with being associated either with a criminal street gang, or alternatively with “a group of individuals associated in fact, although not a legal entity, for the purpose of engaging in criminal activities.... ”

The State acknowledged at trial that the defendant is not a gang member. The State presented evidence that two gangs, the “Latin Kings” and the “YLO,” operated in the area. This evidence came from a detective with specialized experience with gangs. The detective testified regarding numerous undercover drug purchases made in the park, using undercover officers and confidential informants. These included some of the transactions involving the defendant.

Over objection the detective testified that gang graffiti of both the Latin Kings and the YLO existed in the area, and the graffiti had not been crossed out. He opined that this meant the two gangs were engaged in a cooperative enterprise to control the drug trade at the park. He explained that in his experience, in the absence of some agreement, rival gangs would cross out each others’ graffiti. There was no other testimony that the two gangs had formed a de facto association or joint venture to control the drug trade in the park. We conclude that the detective’s testimony based on analysis of gang graffiti was not enough, standing alone, to establish the existence of an association or joint venture between the two gangs to control the drug trade in the park.

This deficiency in the State’s proof would not, by itself, be fatal to the two RICO counts. That is so because the State charged alternatively that the defendant was employed by or associated with a criminal street gang. However, the proof as to this defendant still fell short. There was no evidence that he was a member of either gang; that he engaged in transactions with or on behalf of gang members; or that he shared any of his drug proceeds with the gangs. Rather, the evidence showed only that defendant sold cocaine in the park and that he was familiar with some other persons who were gang members. That was not enough.

Count 5 charged the defendant with conspiracy to commit racketeering. See § 895.03(4), Fla. Stat. (1997). For the reasons already stated, the evidence is legally insufficient on this count as well.

As the decision in Gross v. State, 765 So.2d 39 (Fla.2000), cautions, the concept of enterprise is not to be applied to “garden variety criminal undertakings.” Id. at 49 n. 5. The evidence here only supported that defendant had engaged in ordinary criminal activity. The convictions on counts 4 and 5 for racketeering and conspiracy to commit racketeering must be reversed.

Affirmed in part, reversed in part, and remanded with directions to vacate the convictions on counts 4 and 5.

      . The defendant does not challenge his convictions for sale of cocaine in counts 120, 122, 129, 131, 132, and 134, and possession of cocaine in counts 121, 123, 130, 133, and 135.

      . The crime dates were June 1997 through February 2000.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jude P. CAZEAU, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3449.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Jude P. Cazeau, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jude Cazeau appeals an order entered June -24, 2003, in the Broward County circuit court, summarily denying his motion for post-conviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. The state agrees that the trial court lacked jurisdiction to rule because Cazeau’s direct appeal from the challenged conviction, filed through counsel on April 4, 2003 (apparently without Cazeau’s knowledge at the time he filed his pro se motion for post-conviction relief), is still pending in this court. Accordingly, we vacate the order on appeal and direct the trial court on remand either to stay the motion or to dismiss it without prejudice to Cazeau’s refiling it, if necessary, after jurisdiction returns to the trial court when this court issues its mandate in the pending direct appeal, case no. 4D03-1667. See Daniels v. State, 712 So.2d 765 (Fla.1998); Washington v. State, 823 So.2d 248, 249 (Fla. 4th DCA 2002); Burch v. State, 721 So.2d 1198 (Fla. 1st DCA 1998).

GUNTHER, STONE and SHAHOOD, JJ., concur.


author: STEVENSON, J.

text:
    Paul Raymond PELOQUIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2043.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

This is an appeal from the trial court’s summary denial of appellant’s Rule 3.170(1) motion to withdraw a number of nolo con-tendere pleas. We reverse and remand for an evidentiary hearing.

Appellant asserts that his plea was rendered involuntary by counsel’s affirmative representation that his motion for downward departure would be granted and that he would be sentenced to “treatment” and a “suspended” prison term. After the entry of his pleas, appellant was sentenced as a habitual felony offender to concurrent ten-year prison terms for each of the five eases in which he was convicted. Upon a review of the record, we find that neither the plea forms nor the transcript of the plea colloquy conclusively refute Peloquin’s claim that his lawyer represented that he would be granted a downward departure and placed in a treatment program. In the absence of any evidence that the court specifically inquired of Peloquin whether his attorney made any representations or promises regarding the length and nature of the sentence he would receive, the trial court erred in summarily denying the motion to withdraw plea. See State v. Leroux, 689 So.2d 235 (Fla.1996); Brana v. State, 830 So.2d 942 (Fla. 4th DCA 2002); Johnson v. State, 757 So.2d 586 (Fla. 2d DCA 2000).

Accordingly, we reverse and remand for an evidentiary hearing on appellant’s claim that his lawyer represented that the trial court would grant his motion for downward departure and sentence appellant to a treatment program.

REVERSED and REMANDED.

POLEN and SHAHOOD, JJ., concur.


author: POLEN, J. KLEIN, J.,

text:
    Emil Ruben DAVIRAN, Zenobia Gonzalez Daviran, his wife, Rocio Daviran Gonzalez, and Davis Daviran Gonzalez, his children, Appellants, v. MATHESON TRI-GAS, INC., Nitrotec, Inc., and Uniroyal Chemical Company, Ltd., Appellees.
    No. 4D03-281.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.

      Albert A. Gordon of Gordon Law Firm, and Patrice A. Talisman of Hersch & Talisman, P.A., Miami, for appellant.
    Richard A. Sachs of Melito & Adolfsen, Fort Lauderdale, for appellee Matheson Tri-Gas, Inc.
    Robert D. McIntosh and Rachel M. Coe of Adorno & Yoss, P.A., Fort Lauderdale, for appellee Nitrotec, Inc.
   POLEN, J.

This appeal arises from the entry of a non-final order granting a motion to dismiss based on forum non conveniens. Appellant, Rubin Daviran, raises two issues on appeal. Because we agree with his first argument and reverse the order of the trial court on that basis, we need not reach the second issue.

Daviran first contends the trial court erred in signing, without change, the proposed order submitted by Defendant, Ni-trotec. As evidenced in the briefs submitted to this court by all parties in this case, the parties do not dispute that after the hearing on this motion, the trial judge’s judicial assistant contacted the parties, advised them that the trial judge was going to reserve ruling on the motion, and requested they submit orders. However, the final order submitted by Nitrotec’s counsel and entered in this ease grants the motion to dismiss based on forum non conveniens and provides that an adequate alternate forum exists in the Bahamas, that the Bahamas has jurisdiction over all the parties, that the court has considered all the relevant private and public interest factors, and that Daviran can reinstitute suit in the Bahamas without inconvenience or prejudice.

This court has previously addressed the issue of a trial court adopting a proposed judgment verbatim in Flint v. Fortson, 744 So.2d 1217 (Fla. 4th DCA 1999). In Flint, this court acknowledged the desirability of judges preparing their own judgments, but recognized the practical justification for judges utilizing submissions from counsel. The court noted that “what is critical for a reviewing court is that a final judgment reflect the trial judge’s independent decision on the issues of the case.” Id. at 1220. The court concluded that although there is a split of opinion on the issue, reversal has only been granted when the signed judgment is inconsistent with prior pronouncements of the judge. Id.

We recognize that this case is distinguishable from Flint in that there was no oral pronouncement made by the court on the record at the conclusion of the hearing. In fact, after hearing argument, the judge’s only comment was “Okay. I will need quite a bit of time on this. Couple of weeks. I will get to it as soon as I can. I am a bit back logged. Hopefully we will get to it soon.” Thus, there is no oral pronouncement per se with which the order entered could contradict. However, none of the parties dispute that the judge’s assistant contacted them and advised them that the judge was going to defer ruling on the motion pending the Bahamian court’s decision to exercise jurisdiction The order entered does not defer ruling. Rather, it unequivocally grants the motion to dismiss. Interestingly, in defending the court’s entry of their proposed order, Matheson refers to the instructions of the judge’s assistant and claims that:

following the verbal instruction verbatim would have resulted in an order without effect. The reason is that the verbal instructions were for an order deferring ruling on the Motion until the Bahamian court determined if it would accept jurisdiction. However, the Order did not actually require the Appellants to attempt to obtain jurisdiction in the Bahamas.

This comment supports the conclusion that Matheson was not content with the instructions given by the trial court, and supported entry of an order dismissing the complaint. Matheson also points to the amount of time the court took to make a decision on the motion and asserts that such time is evidence that the court considered all the issues contained in the final order. This assertion is contradicted by the record, where the court explained the likelihood of a delay in light of being “a bit back logged.”

As this court ruled in Flint, and has since applied in Damiani v. Damiani, 885 So.2d 1168 (Fla. 4th DCA 2002), when a final order is inconsistent with the court’s prior ruling, reversal is warranted. This principle should not be limited to inconsistencies between an order and pronouncements made by the court on the record. Perhaps a more difficult question would be presented if the parties disputed the trial court’s decision. However, that is not the case here. Because the motion is inconsistent with the court’s pronouncement it must be reversed.

REVERSED.

STEVENSON, J., concurs.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

I agree with the majority and am writing only to express my views as to the merits of the motion to dismiss.

Plaintiff is a Peruvian resident who was working in the Bahamas with a Bahamian work permit. He was injured by a machine operating at a chemical manufacturing plant owned by Uniroyal Chemical Company Ltd. Uniroyal hired an American company to inspect the machine right after the accident, the inspection was videotaped, and the machine was then altered to prevent the type of accident which occurred in this case. There were no eyewitnesses to the accident other than plaintiff, who was working on a Bahamian holiday. Uniroyal has settled with plaintiff.

Matheson Tri-Gas, Inc., the only party moving to dismiss, has its principal place of business in New Jersey, but has a manufacturing facility in Jupiter, Florida, and sells its products in Broward and Palm Beach counties. Uniroyal purchased the machine which injured plaintiff from Matheson. Matheson subcontracted the design and manufacture of the equipment to Nitrotec, Inc., which designed and manufactured the equipment in Maryland.

After being injured, plaintiff was immediately transported to Baptist Hospital in Miami where he remained for nearly four months. He and his family live in Peru, but he travels to Miami for further medical treatment. The complaint he filed against Matheson and Nitrotec alleges strict liability and defective design of the machine.

Matheson moved to dismiss based on forum non conveniens as adopted by the Florida Supreme Court in Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86, 88 (Fla.1996). The public policy underlying that decision was that the Florida judicial system should not be resolving “disputes utterly unconnected with this state’s interests.” As the court further explained:

The use of Florida courts to police activities even in the remotest parts of the globe is not a purpose for which our judiciary was created. Florida courts exist to judge matters with significant impact upon Florida’s interests, especially in light of the fact that the taxpayers of this state pay for the operation of its judiciary. Nothing in our Constitution compels the taxpayers to spend their money even for the rankest forum shopping by out-of-state interests.

Id. at 92.

I am assuming that plaintiffs medical treatment in this case was not obtained for purposes of forum shopping because he was transported here immediately following the accident, and people with serious injuries or illness in the islands routinely come to Florida because of the greater availability of medical treatment. It is my view that, where a plaintiff is injured outside of the United States, but receives substantial medical treatment in Florida for reasons which do not include forum shopping, the courts should be skeptical of motions to dismiss based on forum non conveniens.

The trial court may have assumed that, because the accident occurred in the Bahamas, the case should be tried there. The damages aspect of a personal injury case can, however, be more significant than the liability issue. In addition, the medical witnesses on damages will always be located where the medical treatment occurred, while the witnesses on liability are not necessarily located at the place of the accident.

The Kinney decision, as noted above, was prompted by cases in which Florida has no interest. Where Florida healthcare providers render substantial medical care, however, Florida does have an interest in seeing that they are paid because otherwise the citizens of Florida may bear that cost. If payment is only going to come from a recovery in a personal injury lawsuit, which is often the case, the chances of that occurring are far greater if the case is litigated in Florida rather than in another country.

A similar situation was presented in Woods v. Nova Cos. Belize, Ltd., 739 So.2d 617 (Fla. 4th DCA 1999), in which the plaintiff was injured in an aircraft accident in Costa Rica. In reversing an order dismissing for forum non conveniens, we pointed out that the plaintiffs choice of Florida as a forum was clearly a reasonable choice because plaintiff had received extensive medical treatment in Florida. Woods would appear to control this case.

      . We note that at oral argument before this court, in what appeared to be the first time such a position was taken, counsel for the appellee questioned what was actually said by the judicial assistant. However, in briefs submitted to this court, there was no question of what the parties were advised. Further, counsel for appellee Nitrotec represented at oral argument that he had no idea who the judge’s judicial assistant spoke to at appellant’s attorney's office, and it may have been a secretary she spoke to at appellee’s attorney’s office.

      . Although our opinion in Woods does not reflect it, the record showed that after receiving seven months of medical treatment in the hospital at the University of Alabama, plaintiff was treated for months at the nationally known bum center at Jackson Memorial Hospital in Miami. There was a dissent in Woods based on Resorts International v. Spinola, 705 So.2d 629 (Fla. 3d DCA 1998). Spinola also involved an accident in the Bahamas and medical treatment in Miami. The medical treatment, however, consisted only of an operation in which the plaintiff was hospitalized for two or three weeks. Prior to that the plaintiff had received medical treatment in the Bahamas, and afterward plaintiff received additional medical treatment where she resided in Portugal. In Spinola the third district held that the Bahamas was a more convenient forum and that the trial court should have dismissed.


text:
    Ellen WINTERS, Appellant, v. STATE of Florida UNEMPLOYMENT APPEALS COMMISSION and ADP Totalsource III, Inc., Appellees.
    No. 4D02-4101.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Ellen Winters, Boca Raton, pro se.
    John D. Maher, Tallahassee, for appellee Unemployment Appeals Commission.
   PER CURIAM.

Ellen Winters appeals a decision of the Unemployment Appeals Commission (“UAC”), finding her “totally employed” during a particular three-week period for which she had already received unemployment benefits. We reverse and remand.

Ellen Winters lost her job after the company she was working for filed for bankruptcy. She applied for unemployment benefits near the end of October 2001. Winters’s benefit amount was established at $275 per week. In late December 2001, Winters interviewed with First Warranty Group, a company that sells car and boat warranties over the phone. First Warranty is a part of ADP Totalsource III, Inc. Winters was offered the opportunity to train without pay with First Warranty for a position where she would ultimately work on a commission basis. Winters was not certain that she would eventually take this job as she preferred a salaried position. Winters, however, decided to begin training for the position. When Winters began her training, she was eligible to receive benefits from First Warranty, but she was not entitled to any compensation, and she did not receive any from First Warranty during this period. Winters was in training for the first three weeks in January. For these weeks, ending January 12, 19, and 26, 2002, Winters still received unemployment benefits. During these three weeks, Winters’s training schedule at First Warranty was flexible. Winters states that she came into First Warranty basically from 9:00 a.m. to 5:00 p.m. on Monday through Friday, but if she needed to leave for an interview, or to send out resumes to potential employers, she was able to leave. First Warranty did not consider Winters to be employed until she made her first sale on January 81 and received a sales commission.

The Agency for Workforce Innovation determined that Winters was ineligible for benefits during the three-week period that she was training at First Warranty. The UAC referee affirmed the agency’s determination, finding that during the first three weeks in January, Winters was performing a full-time job and was “totally employed.” The referee also affirmed the agency’s determination that the $825 in unemployment benefits that Winters received during this period was an overpayment on her unemployment claim. Winters appealed this decision and the UAC affirmed. She now appeals the UAC decision.

To be entitled to unemployment benefits, a person must be unemployed. See § 443.091(1), Fla. Stat. (2002). Under section 443.036(39)(a) of the Florida Statutes, “an individual shall be deemed ‘totally unemployed’ in any week during which he or she performs no services and with respect to which no earned income is payable to him or her.”

We reject the UAC’s argument that by training, Winters provided services to First Warranty by learning her duties at the company, enabling her to be a more competent employee. Moreover, it is un-rebutted that during the first three weeks of January, Winters did not earn any income or commissions from First Warranty. While she was eligible for company benefits, nothing in the record shows whether or not Winters was actually participating in the company’s benefit program. Therefore, the evidence does not support a finding that Winters was providing services to First Warranty or earning income payable to her from First Warranty during the first three weeks of January.

Thus, pursuant to sections 443.036(39)(a) and 443.091(1) of the Florida Statutes, Winters was totally unemployed and entitled to receive unemployment benefits. Accordingly, we reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

GUNTHER, WARNER and MAY, JJ„ concur.

      . There is no record evidence regarding the nature of the benefits available, their value, or whether Winters received any of these benefits.


author: RAMIREZ, J.

text:
    Harry and Suzanne KURCHNER, Appellants, v. STATE FARM FIRE AND CASUALTY CO., Appellee.
    No. 3D03-249.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Paul Morris, Freshman, Freshman & Traitz, Miami, for appellants.
    Richard A. Warren, Miami, for appellee.
    Before COPE, SHEVIN, and RAMIREZ, JJ.
   RAMIREZ, J.

Harry and Suzanne Kurehner appeal from an adverse summary judgment. Because we do not construe State Farm’s insurance policy to provide coverage, we affirm.

Harry Kurehner is a recipient of cancer chemotherapy treatment. Prior to undergoing chemotherapy treatment, he and his wife, Suzanne Kurehner, decided to cryopreserve Harry’s sperm with South Florida Institute for Reproductive Medicine (“SFIRM”). Cryopreservation offered the Kurchners an opportunity to have children in the future should Harry’s chemotherapy treatment make him sterile. Harry subsequently deposited five sperm samples with SFIRM. SFIRM was to store the sperm samples separately in tanks maintained with alarms which were to set off when the cooling apparatuses of the tanks failed. SFIRM instead stored all of the samples together and the samples were destroyed when the storage tank’s cooling apparatus failed. Harry eventually became sterile as a result of his chemotherapy treatment.

The Kurchners filed suit against SFIRM seeking damages arising from the destruction of Harry’s cryopreserved sperm. Ap-pellee State Farm Fire and Casualty Co. provided SFIRM with Comprehensive Business Liability insurance. When State Farm denied coverage and refused to defend it, SFIRM filed a declaratory relief action contending that State Farm had a duty to defend and indemnify SFIRM. The Kurchners and SFIRM entered into a settlement agreement in which the Kur-chners assumed SFIRM’s rights.

The State Farm policy, under section II — Comprehensive Business Liability, provides coverage for “bodily injury, property damage, personal injury or advertising injury.” The Definitions section of the policy defines “bodily injury” as “bodily injury, sickness or disease sustained by a person, including death resulting from the bodily injury, sickness or disease at any time.” Coverage would otherwise be excluded, under section 11(d) — Comprehensive Business Liability — for property damage that is “personal property in the care, custody or control of any insured.”

Both sides moved for summary judgment. The trial court entered judgment in State Farm’s favor finding that the “sperm outside of the body is property and is not a part of the body” and concluding that there was no “bodily injury” under State Farm’s policy. We agree.

Terms utilized in insurance policies are given their plain and unambiguous meaning. See State Farm Fire & Cas. Co. v. Castillo, 829 So.2d 242, 244 (Fla. 3d DCA 2002). If the language in the insurance policies is unambiguous, the rules of construction mandate that the policy as written be given its full force and effect. See U.S. Fire Ins. Co. v. Morejon, 338 So.2d 223, 225 (Fla. 3d DCA 1976).

The Kurehners argue that State Farm’s coverage for damages to “bodily injury” includes Harry’s sperm as a part of his body according to the definition of “bodily” defined as “of or pertaining to the body.” If we were to agree with the Kurehners that the policy provides coverage, we must first agree with the proposition that sperm removed from a body constitutes a “bodily injury” sustained “by a person.” This creates an issue of first impression in Florida and comes to this Court under the most unfortunate of circumstances for the Kur-ehners. Cases from other jurisdictions, Florida Statutes, and the common understanding of the relevant terms demonstrate, however, that cells removed from a body no longer constitute part of the body and instead constitute property whose destruction is not considered bodily injury.

Florida Statutes that govern the donation and disposition of sperm recognize that sperm removed from the body becomes property. For example, section 742.14, Florida Statutes (2002), provides that “[o]nly reasonable compensation directly related to the donation of eggs, sperm, and preembryos shall be permitted.” Section 742.17, Florida Statutes (2002), recognizes that control over the disposition of eggs, sperm, and preembr-yos may be governed by a written agreement.

Cases from other jurisdictions hold that preserved sperm or eggs constitute personal property. In Hecht v. Superior Court, 16 Cal.App.4th 836, 20 Cal.Rptr.2d 275, 283 (1993), the court held that a deceased sperm donor had an interest in his sperm which fell within the broad definition of “property” under the state’s probate code. The court in Moore v. Regents of University of California, 51 Cal.3d 120, 271 Cal.Rptr. 146, 793 P.2d 479 (1990), likewise treated excised cells as “property” for purposes of a conversion action, but did not agree for policy reasons to extend the conversion liability to cover the unauthorized use of such cells.

For these reasons, the trial court properly found that sperm outside of the body is property that is not a part of the body upon which coverage existed under the definition of “bodily injury” in State Farm’s insurance policy.

Affirmed.

      . This is a procedure through which tissues or organs can be preserved at extreme low temperatures.


author: SHEVIN, Judge.

text:
    Jermaine DUHART, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1060.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid (Ft. Lauderdale), Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   SHEVIN, Judge.

We reverse the defendant’s sentence, imposed on remand from Duhart v. State, 847 So.2d 497 (Fla. 3d DCA 2003). “Re-sentencing is a critical stage in which a defendant has the right to be present and has the right to have the assistance of counsel.” Waldo v. State, 781 So.2d 1198, 1198 (Fla. 3d DCA 2001); State v. Scott, 439 So.2d 219, 220 (Fla.l983)(defendant has right to be present at re-sentencing and to be represented by counsel). The trial court erred in re-sentencing defendant when defendant was not present or represented by counsel. On remand, the defendant, and his counsel, shall be present, and shall be permitted to present arguments as to the propriety of the sentence to be imposed.

Reversed and remanded.


text:
    George ANDRES and Ann Andres, husband and wife, Appellants, v. INDIAN CREEK PHASE III-B HOMEOWNER’S ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D02-4152.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.

      Barry Silver, Boca Raton, for appellants.
    Steven M. Selz of Selz & Muvdi Selz, P.A., Palm Beach, for appellee.
   PER CURIAM.

The appellant filed his notice of appeal within thirty days from a final judgment of garnishment entered on October 17, 2002. The notice of appeal states that appellant is also appealing an order denying an amended emergency motion to dissolve the original permanent injunction granted in this case, which also awarded attorney’s fees. That order was entered on June 14, 2002. No appeal was filed within thirty days of that order. We conclude that an appeal from the June 14th order is untimely, because the order was not an interlocutory order in the garnishment proceeding but was a post-judgment motion directed to the original final judgment in this action. Whether we treat it as a post-judgment motion appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(5) or a final order pursuant to Rule 9.110(a), an appeal from the order must be filed within thirty days of rendition for this court to have jurisdiction to review. See Fla. R.App. P. 9.110(b); 9.130(b); Franchi v. Fla. Dep’t of Commerce, Div. of Employment Sec., 375 So.2d 1154, 1155 (Fla. 4th DCA 1979) (noting failure to file within thirty-day period constitutes an irremediable jurisdictional defect).

As all of the issues raised on appeal deal with the order denying the motion to dissolve the permanent injunction and an attack on the original final judgment, we have no jurisdiction to consider them. Appellant having raised no issue regarding the validity of the garnishment itself, the final judgment is affirmed.

GUNTHER, WARNER and MAY, JJ., concur.


text:
    Bruce FILLMORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2867.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.

      Bruce Fillmore, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Bruce Fillmore appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

Fillmore alleged that his habitual offender sentence is illegal as he did not have the requisite predicate conviction for such sentence. Fillmore challenged his predicate offense as having occurred after the commission of the crime for which the habitual offender sentence was imposed. The trial court agreed with the state that the claim failed as a matter of law in light of Perkowski v. State, 616 So.2d 26 (Fla.1993), and denied the motion.

Perkowski pre-dated a significant change to section 775.084(5), Florida Statutes. See Ch. 93-406, § 2, Laws of Fla., at 2915 (1993) (effective June 17, 1993). The Florida Legislature, in 1993, added a section to the habitual felony offender statute which provides:

In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.

§ 775.084(5), Fla. Stat. (1993); see also Comet v. State, 791 So.2d 593 (Fla. 3d DCA 2001); Carson v. State, 739 So.2d 653 (Fla. 1st DCA 1999). The change is applicable to Fillmore’s offense which occurred on June 19, 1993. Cf. Barnhill v. State, 788 So.2d 313 (Fla. 5th DCA 2001).

Fillmore’s claim is cognizable in a rule 3.800(a) motion if the error can be determined from the record. See Bover v. State, 797 So.2d 1246 (Fla.2001). Our record does not contain all of the documents necessary to support the dates as alleged, though the state does not dispute Fillmore’s dates as alleged, which support his claim. We reverse and remand for the trial court to determine whether the record supports Fillmore’s allegations, and if so, to resentence him accordingly.

STONE, POLEN and HAZOURI, JJ., concur.


text:
    MARINE HOSPITALITY CORPORATION, a Florida corporation, Appellant, v. ONE RIVER PLAZA, CO., an Ohio limited partnership, Appellee.
    No. 4D03-2677.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.

      Jerrard B. Cutrone of Bennett D. Fultz, P.A., Miami, and Alan K. Marcus, of Alan K. Marcus, P.A. Coral Gables, for appellant.
    Angela C. Flowers of Kubieki Draper, Miami and Jerome W. Vogel of Kubieki Draper, Fort Lauderdale, for appellee.
   PER CURIAM.

Marine Hospitality Corporation timely appeals a trial court order which denied its motion to vacate a final default judgment and quash service of process in a commercial lease action. Appellant raised three points on appeal, arguing in the first point that service of process should be quashed for failure to properly perfect service on a corporation pursuant to section 48.081, Fla. Stat. (2002). Service was attempted in this case on a system administrator of the corporate defendant. Based on the confession of error as to this first point filed by appellee, One River Plaza, we reverse and remand with instructions to the trial court to quash service of process and vacate the final default judgment, without prejudice to appellee to perfect service in compliance with section 48.081, Fla. Stat.

FARMER, C.J., POLEN and STEVENSON, JJ„ concur.


text:
    Vincent Williams JONES a/k/a Moses Jones a/k/a Allan Williams, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2881.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Michael E. Hampden, Plantation, for appellant.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

Affirmed. See Peart v. State, 756 So.2d 42 (Fla.2000); Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002)(no prejudice required by Peart when defendant would have been subject to deportation regardless of plea), review denied, 842 So.2d 845 (Fla.2003), and cases cited; Ashley v. State, 814 So.2d 515 (Fla. 3d DCA 2002).


text:
    Rhonda L. CABOT, Appellant, v. STATE of Florida DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D03-957.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Rhonda L. Cabot, Boca Raton, pro se.
    No brief filed for appellee.
   PER CURIAM.

The statement filed October 28, 2003 by appellant shall be treated as her initial brief. The court has reviewed this initial brief and finds that no preliminary basis for reversal has been demonstrated. The appeal is therefore affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a).

KLEIN, GROSS and MAY, JJ., concur.


text:
    Lori HARRISON f/k/a Lori Ann Summers f/k/a Lori Ann Persighetti, Appellant, v. Patrick J. PERSIGHETTI, Appellee.
    No. 4D03-759.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    William G. Crawford, Jr., of McDonald & Crawford, P.A., Fort Lauderdale, for appellant.
    Emilie M. Tracy, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The former wife appeals from dismissal of her petition to modify support. The single issue in this appeal is whether the trial court improperly ruled on the former wife’s petition when the only matter set for hearing was the former husband’s petition to modify support. She argues that she was denied due process because the notice of hearing did not place her on notice that her petition would be heard. We agree and reverse.

In observing the requirements of due process of law, the opportunity to be heard must be full and fair.... The notice required for any proceeding which may produce a final result is “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

Hart v. Hart, 458 So.2d 815, 816 (Fla. 4th DCA 1984) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)) (citations omitted). Here, there is no dispute that the notice of hearing designated only the former husband’s petition for hearing. The trial court erred in ruling on a matter that was not noticed for hearing.

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


text:
    Lewis Devon WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4429.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2003.
    Nancy A. Daniels, Public Defender, Second Judicial Circuit; Archie F. Gardner, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas D. Winokur, Asstant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Reversed. See Meade v. State, 799 So.2d 430 (Fla. 1st DCA 2001); Faulk v. State, 743 So.2d 1183 (Fla. 1st DCA 1999).

WOLF, C.J., LEWIS and POLSTON, JJ., concur.


author: PER CURIAM. BENTON, J.,

text:
    Silvia VALERIO, Appellant, v. LEE MEMORIAL HEALTH SYSTEMS, Appellee.
    No. 1D02-1774.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2003.
    Peter Burkert, Ft. Myers; and Bill McCabe, Longwood, for Appellant.
    Scot E. Samis of Abbey, Adams, Byel-ick, Kiernan, Mueller & Lancaster, L.L.P., St. Petersburg; and Michele Guindon of Boydstun, Dabroski, Lyle & Wood, L.L.C., St. Petersburg, for Appellee.
   PER CURIAM.

Appellant, Silvia Valerio, appeals an order of the Judge of Compensation Claims (JCC), which denied her motion to vacate. Pursuant to section 440.20(ll)(c), Florida Statutes (2001), this court does not have jurisdiction to review this order, and we dismiss the appeal.

Valerio, while represented by counsel, entered into a settlement agreement with her employer, Appellee, Lee Memorial Health Systems, in order to settle a workers’ compensation claim. On February 5, 2001, the JCC entered an order approving the attorney’s fees portion of the agreement, as required by section 440.20(ll)(c). Valerio subsequently became dissatisfied with the agreement, and moved to vacate the JCC’s order approving the award of attorney’s fees. The JCC entered an amended order on April 18, 2002, in which he found he did not have subject matter jurisdiction to consider Valerio’s motion. Valerio filed a notice of appeal from the April 18, 2002, order.

Section 440.20(ll)(c) provides in pertinent part:

[W]hen a claimant is represented by counsel, the claimant may waive all rights to any and all benefits under this chapter by entering into a settlement agreement releasing the employer and the carrier from liability for workers’ compensation benefits in exchange for a lump-sum payment to the claimant. The settlement agreement requires approval by the judge of compensation claims only as to the attorney’s fees paid to the claimant’s attorney by the claimant.... Any order entered by a judge of compensation claims approving the attorney’s fees as set out in the settlement under this subsection is not considered to be an award and is not subject to modification or review.

Because section 440.20(ll)(c) clearly states that orders approving attorney’s fees under that subsection are not reviewable orders, we are without jurisdiction to allow a party to subvert the intent of the Legislature by having an order reviewed indirectly which may not be reviewed directly. Accordingly, Valerio’s appeal is dismissed.

ALLEN and DAVIS, JJ„ CONCUR; BENTON, J., DISSENTS WITH OPINION.

BENTON, J.,

dissenting.

Section 440.20(ll)(c), Florida Statutes (2002), does not, in my view, divest the court of jurisdiction to review the order the judge of compensation claims entered on appellant’s motion to vacate order approving attorney’s fees and child support allocation. Accordingly, I would reach the merits and, because the judge of compensation claims found (at least implicitly) that the claimant was represented by counsel when her case was settled, affirm. See § 440.20(ll)(c), Fla. Stat. (2002) (“[W]hen a claimant is represented by counsel, .... [a]ny order ... approving the attorney’s fees ... is not subject to modification .... ”).

Initially, the judge of compensation claims had jurisdiction to decide the motion, if on no other basis, then in order to determine his own jurisdiction. See, e.g., Mandico v. Taos Constr., Inc., 605 So.2d 850, 854 (Fla.1992) (holding “prohibition may not be used to divest a lower tribunal of jurisdiction to hear and determine the question of its own jurisdiction”). Among the grounds asserted for the motion was that

the claimant was not represented at the time the release was executed. A pro se claimant is statutorily prohibited from settling his/her case under Section 440.20(ll)(c), Florida Statutes. Being unrepresented at the time, the case could only be settled under Section 440.20(ll)(a) or (b)....

The judge of compensation claims had to decide whether the claimant was represented by counsel when the release was executed, in order to decide whether the putative settlement precluded an award of benefits. “When a claimant is not represented by counsel, .... [i]f the settlement proposal together with supporting evidence is not approved by the judge of compensation claims, it shall be considered void.” § 440.20(ll)(a), Fla. Stat. (2002).

The majority opinion does not explain why the court lacks jurisdiction to review the finding that the claimant had counsel when the release was executed. A washout settlement does not inevitably terminate either proceedings before the judge of compensation claims or our jurisdiction to review orders entered post-settlement. See generally Friz v. All State Ins., 854 So.2d 258, 258 (Fla. 1st DCA 2003) (“dispel[ling] any doubt pertaining to a JCC’s authority or jurisdiction to impose sanctions for late payment of settlements under” section 440.20(ll)(c)); Levine, Busch, Schnepper & Stein, P.A. v. Pool Piling Enters., 847 So.2d 1039, 1040 (Fla. 1st DCA 2003) (reversing order refusing “to satisfy the firm’s lien from funds allocated for the washout settlement”). I respectfully dissent.


text:
    Jack Donald BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0506.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his rule 8.850 motion. The appellant was convicted after a jury trial for arson and burning to defraud an insurer. The appellant claims that he has newly discovered evidence, which if known at trial would probably have resulted in his acquittal, in the form of a new affidavit by a codefendant acknowledging that this co-defendant lied at trial in implicating the appellant as a principal in an arson as having paid the codefendant to commit the arson.

Recantation evidence is a type of newly discovered evidence. See Stephens v. State, 829 So.2d 945, 945 (Fla. 1st DCA 2002). To be newly discovered, the evidence must be such that neither the appellant, his counsel, nor the trial court could have discovered the facts in the affidavit at the time of trial through the exercise of due diligence, and must be such that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998), cert. denied, 523 U.S. 1040, 118 S.Ct. 1350, 140 L.Ed.2d 499 (1998).

The trial court summarily denied the appellant’s claim because at trial the appellant had presented testimony by another prisoner that the appellant’s codefendant had told this other prisoner that he had been pressured to lie about the appellant’s involvement in the arson in order to cut himself a deal. The trial court reasoned that the appellant had therefore known at trial that the codefendant was lying, and thus the fact of the codefendant’s lying could not constitute newly discovered evidence. In this regard, the trial court erred.

Even though the appellant knew at trial that the codefendant was lying, the appellant could not have gotten the codefendant to admit that he was lying earlier, and thus the recantation is newly discovered evidence that could not have been obtained earlier with due diligence. See Lee v. State, 677 So.2d 312, 314 (Fla. 1st DCA 1996); Kendrick v. State, 708 So.2d 1011, 1012 (Fla. 4th DCA 1998); Cammarano v. State, 602 So.2d 1369, 1371 (Fla. 5th DCA 1992).

Since the codefendant’s testimony appears to have been key in obtaining the appellant’s conviction, an evidentiary hearing is warranted. See McLin v. State, 827 So.2d 948, 954-55 (Fla.2002); Stephens, 829 So.2d at 945-46; Robinson v. State, 736 So.2d 93 (Fla. 4th DCA 1999).

We accordingly reverse the summary denial and remand with instructions for the trial court to conduct an evidentiary hearing.

REVERSED.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Q.A. and J.B., Petitioners, v. DEPARTMENT OF JUVENILE JUSTICE, Respondent.
    No. 1D03-4216.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2003.

      Nancy A. Daniels, Public Defender, and John W. Hedrick, Assistant Public Defender, Tallahassee, for petitioners.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Petitioners sought habeas corpus relief from this court. By unpublished order, we previously granted relief as to petitioner J.B. and stated that an opinion explaining our decision would follow.

J.B. and Q.A. are juveniles and both were committed to moderate-risk residential programs of the Department of Juvenile Justice. Section 985.215(10)(a)l., Florida Statutes (2002), states:

When a child is committed to the Department of Juvenile Justice awaiting dispositional placement, removal of the child from detention care shall occur within 5 days, excluding Saturdays, Sundays, and legal holidays. Any child held in secure detention during the 5 days must meet detention admission criteria pursuant to this section. If the child is committed to a moderate-risk residential program, the department may seek an order from the court authorizing continued detention for a specific period of time necessary for the appropriate residential placement of the child. However, such continued detention in secure detention care may not exceed 15 days after commitment, excluding Saturdays, Sundays, and legal holidays, and except as otherwise provided in this subsection.

The petitioners were not placed within five days of their commitment, nor did DJJ seek an order authorizing their continued detention. Petitioners sought habeas corpus relief.

In response to an order to show cause, DJJ asserted that the petition was moot as to Q.A., who had since been placed in a residential program. However, DJJ conceded that J.B. was entitled to the relief he sought: release to home detention with electronic monitoring until placement in the offender program ordered by the circuit court. L.K. v. State, 729 So.2d 1011 (Fla. 4th DCA 1999); S.B. v. Rayford, 717 So.2d 1107 (Fla. 3d DCA 1998); and AW v. State, 711 So.2d 598 (Fla. 5th DCA 1998).

When a juvenile is committed to a moderate-risk residential program, section 985.215(10)(a)l. clearly limits the time a juvenile may be held in secure detention care pending placement in the appropriate program. If a juvenile is not placed within five days of commitment and DJJ does not obtain an order extending the secure detention care, the juvenile is entitled to relief. Section 985.215(10)(a)2. provides that the “court must place all children who are adjudicated and awaiting placement in a residential commitment program in detention care. Children who are in home detention care or nonseeure detention care may be placed on electronic monitoring.”

Accordingly, the petition was denied as moot as to Q.A., however, the petition for writ of habeas corpus was granted as to J.B.

ALLEN, KAHN and DAVIS, JJ., concur.


author: MONACO, J.

text:
    AIRTRAN AIRWAYS, INC., Appellant, v. AVAERO NOISE REDUCTION JOINT VENTURE, Appellee.
    No. 5D02-3773.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.

      Seann M. Frazier and R. Paul Roecker of Greenberg Traurig, P.A., Tallahassee, for Appellant.
    Patrick C. Howell and Harry W. Carls of Taylor and Carls, P.A., Maitland, for Appellee.
   MONACO, J.

Airtran Airways, Inc., appeals the final judgment for money damages rendered by the trial court against it and in favor of AvAero Noise Reduction Joint Venture. The trial court found that Airtran breached a contract with AvAero for the purchase and sale of certain aircraft noise abatement devices, and awarded AvAero attorneys’ fees apparently pursuant to section 57.105 (1998). We affirm the judgment in all respects except in connection with the award of attorneys’ fees. Because the trial court applied the wrong version of section 57.105, we conclude that a reconsideration of the attorneys’ fees issue by the trial court is required.

The contract at the heart of this suit was entered into by the parties in 1995. The complaint seeking damages, however, was not filed until May 2, 2000. In the final judgment the trial court awarded fees to Avaero after finding “no justiciable issue, either in fact or law.” Unfortunately, this indicates that the trial judge was applying a version of section 57.105 that was outdated.

Section 57.105 was amended by the Legislature effective October 1, 1999. Ch. 99-225, § 4, at 1406, Laws of Fla. The earlier iteration of the statute limited fee awards to cases where, as the trial judge found here, there was a complete absence of a justiciable issue of fact or law. See Forum v. Boca Burger, Inc., 788 So.2d 1055, 1060 (Fla. 4th DCA 2001), review granted, 817 So.2d 844 (Fla.2002). The current version, however, now authorizes an award of fees if a party or its counsel knew or should have known that any claim or defense asserted “was not supported by material facts,” or “would not be supported by the application of then existing law to those material facts.” We have held recently that the 1999 version of section 57.105 applies to actions taken, positions maintained or papers filed subsequent to October 1, 1999. See Mullins v. Kennelly, 847 So.2d 1151 (Fla. 5th DCA 2003); see also Jackson v. York Hannover Nursing Ctrs., Inc., 853 So.2d 598 (Fla. 5th DCA 2003). Since this suit was brought and all matters pertaining to the maintenance and defense of the suit occurred after that key day, it appears that the trial judge applied the wrong standard in his determination that fees should be awarded to AvAero.

More importantly, subsection (1) of the post-1999 statute authorizes an award of fees “at any time during a civil proceeding or action” that the court finds that the losing party was raising an unsupported claim or defense. In the present case Airtran successfully withstood a motion for summary judgment brought by AvAero early in the action. As the trial court made no finding regarding when Airtran’s defense activities became unsupported, we are unable to tell from what period or for what actions the fees were awardable.

Accordingly, we affirm all aspects of this case other than the award of attorneys’ fees. We remand for reconsideration of the issue of attorneys’ fees in fight of the post-1999 version of section 57.105. In addition, we find that AirTran’s position with respect to the meaning and enforceability of its contract with AvAero is not supported by the application of the law to the material facts, and that AirTran knew or should have known this at the time that it filed this appeal. We accordingly grant AvAero’s motion for appellate attorneys’ fees in that regard, and remand to the trial court for assessment of the amount of those fees. We deny AvAero’s motion for appellate fees as it pertains to the issue of whether fees were assessed below using the proper standard.

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

SAWAYA, C.J., and ORFINGER, J., concur.


author: TORPY, J.

text:
    Susan H. BISHOP, Appellant, v. John D. BISHOP, Appellee.
    No. 5D03-393.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.

      Kenneth L. Warnstadt, of Tyner & Warnstadt, P.A., Brooksville, and Thomas R. Eineman, Spring Hill, for Appellant.
    No Appearance for Appellee.
   TORPY, J.

Susan Bishop (“Former Wife”) challenges the trial court’s order denying her request for child support arrearages allegedly due from her former husband, John Bishop (“Former Husband”). We have jurisdiction. Fla. R.App. P. 9.030(b)(1)(A) and Fla. R.App. P. 9.110. The trial court determined that a procedural impediment precluded recovery. Additionally, the court concluded that Former Wife’s request was barred by principles of waiver and laches. We reverse and remand for further proceedings.

In October of 1990, because of an impending divorce, Former Wife and Former Husband entered into a Stipulation and Property Agreement (“Stipulation”). Among other things, the parties stipulated that Former Wife would have custody of their six-year-old daughter, Sydney, and that Former Husband would pay child support of $225.00 every other week. A Final Judgment of Dissolution of Marriage was entered on .October 26, 1990. The Final Judgment ratified and incorporated the Stipulation.

A month later, Former Husband filed a Petition for Modification of Judgment seeking to have his child support obligation reduced. Former Husband alleged a substantial change of circumstances in that he had lost his job with a construction company due to lack of work. He requested temporary modification of his child support obligation “until ¿uch time as he is reemployed.” The trial court granted the modification on February 8, 1991. The court reduced Former Husband’s child support obligation, but provided for an “automatic” increase in child support “[i]n the event of any upward change in [Former Husband’s] income.” Former Husband was further ordered to provide Former Wife with his paycheck stubs. The order modifying support provided, in pertinent part:

8. That the downward modification of child support set forth in paragraph one above is based upon a reduction in Respondent’s gross income from six hundred fifty and 00/100 ($650.00) dollars per week to five hundred fifty and 00/100 ($550.00) dollars per week, and is set at 17.30% of Respondent’s gross income. Respondent shall be required to provide Petitioner with copies of his paycheck stubs on or before the last day of the current month for that month. In the event of any upward change in Respondent’s income, the Respondent’s obligation to pay child support shall automatically be increased so as to reflect the 17.30% of Respondent’s gross income. In the event of a substantial downward change Respondent may file a Motion addressing the reasonableness of the support obligation.

On May 24, 1996, Former Wife filed a Motion for Enforcement of Final Judgment of Dissolution of Marriage, Motion for Contempt, and Notice of Hearing wherein she alleged that Former Husband had failed to comply with various terms of the Stipulation and Final Judgment, including paragraph 3 of the modification order. Specifically, Former Wife alleged that Former Husband had not provided her with copies of his paycheck stubs to verify that he was paying 17.30% of his gross earnings in child support. On December 2, 1996, however, stating that the parties had worked out their differences, Former Wife filed a Notice of Dismissal of Petitioner’s Motion for Enforcement of Final Judgment of Dissolution of Marriage and Motion for Contempt. The trial court entered an order dismissing Former Wife’s motions without prejudice.

On September 13, 2002, Former Wife filed the motion at issue, a Motion for Contempt and Notification to Clerk of Court of Child Support Arrearage. The motion alleged that Former Husband was ordered to pay 17.30% of his gross income as child support, that Former Husband had continued paying only $225 bi-weekly, and that each time Former Wife requested compliance with the 17.30% provision, Former Husband claimed hardship. Former Wife also alleged that she had demanded that Former Husband pay the arrearage, but Former Husband failed to do so. Former Wife attached to her motion a copy of a demand letter that she wrote to Former Husband on July 23, 2002, and copies of Former Husband’s W-2 forms for 1991-1997 and 1999-2001. Former Husband did not file a response to the motion.

The trial court held a hearing on Former Wife’s motion. Copies of letters from Former Wife to Former Husband, dated August 18, 1991, and February 10, 2002, were admitted into evidence. In the letters, Former Wife requested compliance with the order to provide her with paycheck stubs, among other things. On January 6, 2003, the trial court issued its order finding: (1) that the February 8, 1991, order setting Former Husband’s child support obligation at 17.30% of his gross income was not self-effectuating, therefore, requiring that Former Wife proceed by filing a petition for modification, rather than simply a motion for enforcement or contempt; (2) that Former Wife’s voluntary dismissal of her motion in 1996 constituted a waiver of any amount of unpaid child support claimed up to that date; and (3) that laches and waiver applied to Former Wife’s claim for all other child support arrearages. Thus, the court denied Former Wife’s motion. Former Wife filed a timely Notice of Appeal.

As to the first basis for denial, the trial court stated as follows:

[T]he Court having reviewed the Court file and having noted that there was an Order entered on or about February 8, 1991, which order established the Former Husband’s support obligation as a result of a modification proceeding at $190.00 bi-weekly, and the Court further having found that the agreement provides that the aforesaid amount is of 17.30% of the Former Husband’s gross income and that the Former Husband is required to provide to the Former Wife copies of his paycheck stubs on or before the last day of the current month for that month, and further, in the event of any upward change in the Former Husband’s income, the Respondent’s obligation to pay child support shall automatically be increased so as to reflect the 17.30% of the Former Husband’s gross income and in the event of a substantial downward modification change Former Husband may file a Motion addressing the reasonableness of the support obligation, however, the Court interprets said provision as not being self-effectuating and therefore it was incumbent upon the Former Wife to file a Supplemental Petition For Modification if she believed that child support should be set at the level of 17.30% of the Former Husband’s gross earnings, however, the Former Wife never filed such a supplemental petition ....

(emphasis added).

We disagree with the trial court’s interpretation of the order. The meaning of the order must be discerned from the plain meaning of the words used in the order. Stein v. Professional Center, S.A., 666 So.2d 264 (Fla. 3d DCA 1996). Use by the court of the word “automatically” evinces a clear intent that further court action would not be required to effect an increase in child support caused by any “upward” change in Former Husband’s income. Thus, no modification of the order was necessary and its enforcement could be initiated via motion for contempt.

As to the trial court’s second basis for denial of Former Wife’s motion, it stated as follows:

[T]he Court further having found that in 1996, a Notice of Voluntary Dismissal was filed by the Former Wife wherein it indicated that the parties had resolved their differences and the Court having found that up to that point, that the filing of the voluntary dismissal constitutes a waiver of any amount of undue [sic] child support up to said date....

Again, we disagree. Waiver is the intentional or voluntary relinquishment of a known right, or conduct which implies the relinquishment of a known right. The elements of waiver are: (1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right. State Farm Mut. Auto. Ins. Co. v. Yenke, 804 So.2d 429, 432 (Fla. 5th DCA 2001). There is nothing in this record to establish that Former Wife intended to relinquish her right to collect child support arrearages by dismissing the enforcement action. Furthermore, as Former Wife correctly points out, the voluntary dismissal was without prejudice, both by operation of Florida Rule of Civil Procedure 1.420(a)(1) and by the specific language used in the order dismissing her motion. Thus, the dismissal does not create an impediment to recovery of past due amounts.

Finally, we conclude that the trial court erred in its determination that Former Wife’s delay in seeking back support barred Former Wife’s claim under principles of laches and waiver. Laches is not applicable because no showing of prejudice was made by Former Husband. Gardiner v. Gardiner, 705 So.2d 1018 (Fla. 5th DCA 1998). As this court stated in Gardiner:

The law is well settled that a proceeding for the enforcement of periodic alimony or child support orders is equitable in nature and is not barred by the running of the statute of limitations. The true test in determining whether to apply laches is whether or not the delay has resulted in injury, embarrassment, or disadvantage to any person and particularly to the person against whom relief is sought. The delay required to render the defense of laches available must have been such as practically to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and thus make the doing of equity either doubtful or impossible, as through loss or obscuration of evidence of the transaction in issue; or there must have occurred in the meantime a change in conditions that would render it inequitable to enforce the right asserted.

Gardiner, 705 So.2d at 1020 (internal citations omitted).

Here, Former Husband alleged no injury, embarrassment or disadvantage. Moreover, the delay did not preclude the court from arriving at a “safe conclusion as to the truth of the matter in controversy” because the 1991 order modifying Former Husband’s child support to 17.30% of his gross salary was clear and required nothing more than a mathematical computation using Former Husband’s W-2 forms. See also, Ticktin v. Kearin, 807 So.2d 659, 663 (Fla. 3d DCA 2001) (laches will bar claim for child support only in circumstances of extreme prejudice). Likewise, waiver cannot be found based on a mere delay in seeking redress. Torres v. K-Site 500 Associates, 632 So.2d 110, 112 (Fla. 3d DCA 1994).

The judgment of the trial court is reversed and this cause is remanded for the court to address the merits of Appellant’s pending motions.

REVERSED and REMANDED.

SAWAYA, C.J., and PALMER, J., concur.

      . Former Husband at some point increased his support payments back to $225 bi-weekly. There is no explanation of when this occurred.


author: PARSONS, W., Associate Judge.

text:
    ALAMO RENT-A-CAR, INC., etc., Appellants, v. Yvonne HAYWARD, et al., Appellees.
    No. 5D03-224.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.

      Walter A. Ketcham, Jr., and Ramon Vazquez of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Appellants.
    V. Rand Saltsgaver of Law Offices of V. Rand Saltsgaver, Orlando, for Appellees.
   PARSONS, W., Associate Judge.

This case arises from a Final Partial Summary Judgment finding that the ap-pellees were entitled to the benefit of un-derinsured motorist (hereinafter referred to as UM) coverage with National Union Fire Insurance Company. The essential facts below are without dispute.

Yvonne Hayward and her son, Benjamin Hayward, were struck and injured while pedestrians at a flea market in Kissimmee on November 13, 1997 by an underinsured motorist. The Haywards were visitors to Florida from England where they had made arrangements, before their arrival, for a rental car from Alamo Rent-A-Car for their short stay. In conjunction with the rental vehicle they purchased EP (extended protection) for a fee of $11.99 per day which included, among other things, UM benefits under certain circumstances. The extended protection was described in the Rental Agreement jacket which provided underinsured motorists single limit coverage of $1,000,000. The contract for benefits clearly and unambiguously stated that the UM protection was limited to the vehicle renter, or a family member, while physically occupying the Alamo rental car when it was being driven by the renter, or an authorized driver, who suffers bodily injury or death by a negligent underin-sured motorist or a negligent hit and run driver.

Alamo Rent-A-Car is a self insured entity required only to provide minimal statutory liability coverage of $10,000/$20,000, property damage and PIP coverage, to its renters under Florida’s Financial Responsibility Law. Florida does not require self-insured automobile leasing companies to offer underinsured motorist coverage to its lessees for leases that are less than one year in duration. Diversified Servs., Inc. v. Avila, 606 So.2d 364 (Fla.1992).

In this case, Alamo had waived underin-sured motorist coverage, which is effective against the rentee. Alpha Rent-A-Car, Inc. v. Guzman, 497 So.2d 276 (Fla. 3d DCA 1986), review denied, 506 So.2d 1041 (Fla.1987). The fee or premium paid by the Haywards was paid in exchange for making them additional insureds under the policy issued by National Union First Insurance Company to Alamo Rent-A-Car, Inc., the named insured.

The question presented by this appeal is whether or not the UM protection provided by National Union to the Hay-wards as additional insureds on the Alamo Renb-A-Car policy, with its restrictions limiting coverage to injuries sustained while occupying the rental vehicle, violates public policy. The public policy of this state is defined under Florida Statutes, Section 627.727(1) which provides:

No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in the state with respect to any specifically named insured or identified motor vehicle registered or principally garaged in the state unless uninsured motor vehicle coverage is provided therein or supplement thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles ...

Florida's public policy for Class I insureds was clearly stated in Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229 (Fla.1971). The supreme court made it very clear that all policies issued for named insureds in Florida must contain the same policy language and that such language was not to be “whittled away” by exclusions and exceptions. Class I insureds, any named insured or resident relative, are covered so long as the injury is caused by an uninsured motorist. Government Employees Ins. Co. v. Douglas, 654 So.2d 118 (Fla.1995).

In this case the facts indicate and the trial court concluded that the Haywards were Class II insureds since they neither owned the vehicle, had been issued a policy or were named insureds. The trial court found that the public policy requiring the broader UM coverage applied to Class II as well as Class I insureds under the facts of this case. The determinative question is, therefore, whether the exclusions that do not provide UM coverage when the claimant is not physically occupying the vehicle are enforceable.

In Velasquez v. American Manufacturers Mutual Insurance Company, 387 So.2d 427 (Fla. 3d DCA 1980), Raul Velasquez rented a vehicle from Tropical Chevrolet in Miami while his vehicle was being repaired. His son, Manuel Velasquez, drove the rental vehicle which broke down and was abandoned. While walking to a service station, Manuel Velasquez was hit and injured by a hit and run driver. In construing Mullís, the court found as follows:

The policy in the present instance was not issued to Manuel’s father. It was issued to Tropical Chevrolet. Tropical was the owner. By special provision of the policy, uninsured motorist protection was extended to any person while occupying the insured automobile. This provision did not limit the statutorily required coverage to owners but was in addition thereto. Neither this court nor the trial court is authorized to extend coverage beyond the plain language of the policy in the absence of ambiguity, waiver, estoppel or contradiction of public policy. None of these exceptions were proved in the trial court.

Id. at 428 (citations omitted).

Similar exclusions have been found valid in State Farm Mutual Automobile Insurance Company v. Yanes, 447 So.2d 945 (Fla. 3d DCA 1984), and Davis v. Fireman’s Fund Insurance Company, 463 So.2d 1191 (Fla. 2d DCA 1985), review denied, 471 So.2d 43 (Fla.1985). In Yanes, an employee was the operator of a delivery van owned by his employer and while in the course of his employment parked the vehicle near the company warehouse. After leaving the vehicle and while crossing the street, the employee was struck by an uninsured motor vehicle. The policy provision restricting uninsured motorist coverage to any person occupying a vehicle was upheld. In Davis, a tow truck operator was struck and killed by an uninsured motorist while changing a tire on a disabled vehicle while away from the tow truck. The policy language limiting uninsured motorist coverage to “anyone ... occupying a covered auto” was upheld.

Similarly, this court in West American Insurance Company v. Lovett, 519 So.2d 39 (Fla. 5th DCA 1987), review denied, 525 So.2d 879 (Fla.1988), approved a coverage provision limiting UM coverage to a person occupying the covered vehicle for a Class II insured relying on Yanes and Velasquez. Mr. Lovett was the permissive operator of a pickup truck with uninsured motorist coverage when he came upon and passed the scene of a hit-and-run accident involving a wrecked bicycle and a fatally injured bicyclist. The pickup truck ran over bicycle debris, some of which became embedded in the pickup truck tires. Mr. Lovett stopped the pickup truck off the highway about 200 feet past the hit-and-run accident scene, got out of the pickup truck, and walked about 100 feet on the grass along side the highway back toward the injured bicyclist when he himself was struck and fatally injured by an uninsured motor vehicle. This court concluded that since Mr. Lovett was not a family member residing with the owner of the pickup truck, the UM policy provided Mr. Lovett coverage only if he were a person “occupying” the covered vehicle which, in this case, was not applicable. Velasquez, Yanes, Davis and Lovett were all claims by Class II insureds.

It is apparent that the public policy of this state is to require that named and other Class I insureds who own the vehicle or actually purchased the policy have the benefit of full and unrestricted uninsured motorist coverage. Mullis. On the other hand, the public policy of this state has not been offended by a more limited coverage in situations involving Class II or additional insureds. The cases interpreting those situations have all permitted the issuance of policies that .restrict the coverage to injuries or death that occur while the insured is occupying the vehicle. Since the Haywards suffered their injuries while pedestrians and not while occupying the vehicle, they are not covered by the provisions of the contract with Alamo Rent-A-Car, or under the policy exclusion contained in the National Union Fire Insurance Company policy. As the Fourth District pointed out in Auto Owners Insurance Company v. Potter, 774 So.2d 859 (Fla. 4th DCA 2000), Mullis involved Class I insureds while Potter, on the other hand, was a Class II insured “and, as such, could claim uninsured motorist coverage ... only by virtue of the existence of an insurance policy covering the vehicle he occupied at the time of the collision.” Id. at 861 (footnote omitted) (citation omitted). In this case, the undisputed facts show the Haywards were additional or Class II insureds. As such the contract between the parties is valid and does not violate public policy.

The Final Partial Summary Judgment entered by the trial court is reversed with instructions to enter Judgment in favor of the appellants on the issue of UM coverage.

REVERSED and REMANDED with instructions.

GRIFFIN and THOMPSON, JJ„ concur.

      . A distinction has long been recognized in the law of UM coverage between Class I and Class II insureds. In a family auto policy, Class I includes the named insured and family members who receive UM coverage both as occupants of a vehicle and in other circumstances. Class II insureds include all other passengers in the vehicle who are covered only by virtue of the fact that they occupy the covered vehicle. Travelers Ins. Co. v. Warren, 678 So.2d 324 (Fla.1996).


author: SAWAYA, C.J.

text:
    Kathleen R. HAHN, Appellant, v. Diane MEDEIROS, Appellee.
    No. 5D02^3523.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.

      Michael M. Bell, Matthew J. Haftel and Mary Grace Dyleski of Bell, Leeper & Roper, P.A., Orlando, for Appellant.
    Gregory S. Stark of McKeever Albert & Barth, Winter Park, for Appellee.
   SAWAYA, C.J.

Kathleen Hahn appeals the final order granting Diane Medeiros’ motion for new trial. The issue we must resolve is whether the trial court abused its broad discretion in granting the motion. We affirm.

Medeiros, permanently injured while riding as a passenger in a friend’s car, brought suit against Kathleen Hahn, the driver of the other car, for past and future medical expenses, lost wages, and pain and suffering. The jury awarded a total of $289,474.90 in damages but apportioned 90% comparative negligence to Me-deiros and the remaining 10% to Hahn. Following the verdict, Medeiros moved for a new trial claiming that the verdict was inconsistent, against the manifest weight of the evidence, and compromised. The trial court considered the credibility of the witnesses and the weight of the other evidence presented by both parties and concluded that the verdict was both compromised and against the manifest weight of the evidence and ordered a new trial on liability and damages. This appeal followed.

We begin our legal analysis by noting the generally recognized principle that although trial judges should refrain from acting as the seventh juror in the trial proceeding, they are, nevertheless, obligated to grant a new trial “if the manifest weight of the evidence is contrary to the verdict.” Smith v. Brown, 525 So.2d 868, 870 (Fla.1988) (quoted with approval in Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999)). When making this determination, “the trial judge must necessarily consider the credibility of the witnesses along with the weight of all of the other evidence.” Smith, 525 So.2d at 870 (citation omitted) (emphasis added). In Brown, the court summarized the requisite standard for the trial court when exercising its broad discretion in ordering a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence:

A trial judge has the responsibility to draw “on his [or her] talents, his [or her] knowledge, and his [or her] experience to keep the search for the truth in a proper channel,” and the trial judge should always grant a motion for a new trial when “the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.” Cloud, 110 So.2d at 673. The trial judge’s discretion permits the grant of a new trial although it is not “clear, obvious, and indisputable that the jury was wrong.” When a trial judge grants the motion for a new trial, he or she must articulate the reasons for the new trial in the order.

749 So.2d at 497. This standard is premised on the generally accepted notion that the trial judge, through close contact with the trial and his or her observations of the witnesses, “is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached.” Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959).

Our review of the order granting new trial clearly indicates that the trial court did what it was required to do under the standard set forth in Brown, and it is now our obligation to review whether the trial court’s decision to grant the motion for new trial was an abuse of discretion. The standard of review we must apply in order to fulfill our obligation is based on a “reasonableness” test, which was adopted in Cloud and explained by the court in Broum as follows:

When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.

Brown, 749 So.2d at 497-98. The court in Broum “reiterated that a grant of a new trial is of such firmness that it should not be disturbed except upon a clear showing of abuse” and that “an appellant seeking to overturn such a ruling has a heavy burden and any abuse of discretion by the trial court must be clear from the record.” Id. at 496 (citing Castlewood Int’l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975)). In sum, even if there is competent substantial evidence in the record to support a jury’s verdict, as there was in this case, a trial court’s order granting a new trial must be affirmed if reasonable persons could differ as to the propriety of that order.

Our application of the reasonableness test to the instant order results in the inescapable conclusion that reasonable persons could differ as to the propriety of the trial court’s decision. Therefore, we are unable to say that the trial court abused its broad discretion in ordering the new trial. Because the trial court did not abuse its broad discretion in granting a new trial on the grounds that the verdict is against the manifest weight of the evidence, we need not consider the propriety of the order awarding a new trial on the other ground specified therein. Accordingly, the order granting a new trial is affirmed.

AFFIRMED.

PLEUS and ORFINGER, JJ., concur.


author: THOMPSON, J.

text:
    Tommy Lee SMALLS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3459.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.

      James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

Tommy L. Smalls appeals his conviction for possession of cocaine, contending that the court erred when it denied his motion to suppress the cocaine. We affirm.

Officer Chad Ochiuzzo of the Orlando Police Department testified that as he and his partner, Officer Andre Howard, drove down the street, they saw Smalls walking along the sidewalk at the intersection of Jackson and Terry Streets. They parked their vehicle at the curb and walked over to Smalls. Officer Howard asked Smalls if they could talk to him, and he replied, “Yeah, what do you want?” Ochiuzzo asked Smalls for identification, and Smalls handed it to him. Within five to ten seconds, as Ochiuzzo was about to question Smalls, Ochiuzzo saw Smalls using his tongue to manipulate a small, beige, rock-like substance in his mouth; Ochiuzzo thought the object was cocaine. Ochiuzzo grabbed Smalls by the chin and ordered him to spit it out, which he did. The object tested positive for cocaine.

Smalls contends that he was subjected to a Fourth Amendment seizure when the officers approached him. However, “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2882, 115 L.Ed.2d 389 (1991). A “seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Id. “So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the encounter is consensual and no reasonable suspicion is required.” Id; see also Popple v. State, 626 So.2d 185 (Fla.1993).

A police officer does not violate the Fourth Amendment by merely approaching an individual on the street, by asking him if he is willing to answer some questions, or by questioning him. Bostick, 501 U.S. at 434, 111 S.Ct. 2382. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may it be concluded that a seizure has occurred. Id. (citing Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Even when officers have no basis to suspect an individual of a crime, they may ask to examine the individual’s identification, as long as they do not convey a message that compliance with their requests is required. Id. at 434-35, 111 S.Ct. 2382. Here, the police exercised no restraint on Smalls by approaching him in a public place and asking to talk to him and to see his identification. They did not activate the fights on the patrol car or approach Smalls aggressively. Accordingly, we conclude that Smalls was not subjected to a Fourth Amendment seizure when the officers approached him, when the officers asked to speak with him, or when the officers asked to see his identification.

Citing Baez v. State, 814 So.2d 1149 (Fla. 4th DCA), rev. granted, 835 So.2d 269 (Fla.2002), Smalls also argues that he was seized when the officer took his identification. In Baez, the Fourth District Court of Appeal held that a consensual encounter became a seizure when the officer retained the defendant’s license to call in for a check on outstanding warrants. Baez is not on point because in this case, as the trial court wrote in its order, the officer did not retain the identification. The officer noticed the cocaine only seconds after Smalls handed over his license. Furthermore, we disagreed with Baez in Golphin v. State, 838 So.2d 705 (Fla. 5th DCA 2003), which was issued after the briefs in this case were filed. We emphasized in Golphin that under Bostick, a request by the police to see a citizen’s license does not amount to a seizure, and we held that the retention of the license to make a warrants check, in the absence of conduct by the police that causes the encounter to lose its consensual nature, does not amount to a seizure, either. Golphin, 838 So.2d at 707.

Smalls also contends that the officer violated his rights by ordering him to spit out the cocaine. Generally, in order for an officer to direct a person to spit out the contents of his or her mouth, the officer must have probable cause to arrest the person and to conduct a lawful search incident to that arrest. Coney v. State, 820 So.2d 1012 (Fla. 2d DCA 2002) (citing Curtis v. State, 748 So.2d 370, 372 (Fla. 4th DCA 2000)). Here, having observed Smalls with a “small, beige, rock-like substance” in his mouth, the officer had probable cause to believe that the crime of possession of cocaine was being committed in his presence, so the search and seizure were valid. Curtis, 748 So.2d at 375.

AFFIRMED.

ORFINGER and MONACO, JJ., concur.


text:
    Tony KEARSE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2973.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, C.J.

Tony Kearse appeals his judgment and sentence for the offense of sale of cocaine. As a result of his open plea to the court, Kearse received a sentence of thirty years in prison as a habitual felony offender. In his motion to withdraw his plea, Kearse claims that he was misled by the court as to the sentence he would receive in exchange for his plea. We are unable to address the merits of Kearse’s appeal because procedural infirmities require that we dismiss this appeal.

After sentencing, Kearse timely filed his notice of appeal. Thereafter, he filed a motion to withdraw his plea, which the trial court denied. The State argues that because Kearse filed the notice of appeal before he filed his motion to withdraw the plea, the trial court was without jurisdiction to decide the withdrawal motion. Since the only ground presented by Kearse to set aside his conviction and sentence is set forth in his motion to withdraw his plea, the State contends that this court should either dismiss this appeal or affirm the judgment of conviction and sentence.

The instant case does not involve the appeal of a prior dispositive order rendered by the trial court. Therefore, the grounds Kearse may assert in this appeal are limited. Fla. R.App. P. 9.140(b)(2)(A). The argument Kearse makes, that his conviction and sentence should be set aside because his plea was involuntary, is one that may only be asserted if it is preserved by a motion to withdraw the plea. Once Kearse filed his notice of appeal, the trial court did not have jurisdiction to decide Kearse’s subsequently filed motion to withdraw his plea. Wilson v. State, 814 So.2d 1203, 1204 (Fla. 2d DCA 2002) (“The jurisdictional problem arises because, by filing his notice of appeal, Wilson divested the trial court of jurisdiction to enter any further rulings in the case, including a ruling on Wilson’s subsequently filed motion to withdraw his plea.”).

Because Kearse pled guilty and did not properly preserve his right to appeal a dispositive issue, and because the trial court did not have jurisdiction to hear his motion to withdraw his plea, this court does not have jurisdiction to hear Kearse’s appeal. §§ 924.051(4), .06(3), Fla. Stat. (2002); Wilson; Hampton v. State, 680 So.2d 581 (Fla. 3d DCA 1996). We therefore dismiss this appeal without prejudice to Kearse to file an appropriate motion for postconviction relief or to file another appeal after the trial court properly rules on his pending motion to withdraw his plea.

APPEAL DISMISSED.

ORFINGER and MONACO, JJ., concur.

      . Section 924.051(4), Florida Statutes, provides that "[i]f a defendant pleads nolo con-tendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally disposi-tive issue, the defendant may not appeal the judgment or sentence." See also § 924.06(3), Fla. Stat. (2002) ("A defendant who pleads guilty with no express reservation of the right to appeal a legally dispositive issue, or a defendant who pleads nolo contendere with no express reservation of the right to appeal a legally dispositive issue, shall have no right to a direct appeal.”).

      . Although we do not have jurisdiction to hear this appeal, we have jurisdiction to determine whether we have jurisdiction. See Griffin v. State, 760 So.2d 205 (Fla. 2d DCA 2000).


text:
    STATE of Florida, Appellant, v. Roxie Lynn HANNA, Appellee.
    No. 5D03-524.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney, Daytona Beach, for Appellant.
    Richard L. Wilson, Orlando, for Appel-lee.
   TORPY, J.

The issue in this case is whether Appel-lee’s right to a speedy trial on several counts in a multi-count information was violated, thereby entitling Appellee to a discharge on these counts. The trial court concluded that a speedy trial violation had occurred and discharged Appellee on six of the twelve counts contained within the information. Our determination of this issue depends on whether the six dismissed counts arose from the same “criminal episode” as a charge for which Appellee had been previously arrested and discharged. We conclude that the charges involved separate episodes; therefore, we hold that the lower court erred in granting the motion for discharge.

Appellee is accused of operating an adult bookstore, “Jerry’s General Store,” without a proper license, a county ordinance violation, several counts of distribution of obscene materials, all misdemeanors, and two felony RICO counts wherein the distribution charges comprise the predicate acts. The allegations are that undercover officers purchased obscene videos, DVDs and a magazine from Appellee on four different dates. On only one of the dates, August 16, 2002, did officers effect an arrest contemporaneous with the purchase. However, at that time, Appellee was only charged with the violation of Orange County code 3-127, operating an adult entertainment establishment without a license; no additional charges were levied by the officers.

Based on the August 16th arrest, on September 23, 2002, the State filed an information charging Appellee with operating an adult establishment without a license on the date of August 16, 2002, but this charge was later nolle prosequied. Thereafter, on November 15, 2002, the ninety-first day after Appellee’s first arrest, Appellee was arrested on the charges now at issue. The State filed an information containing the felony and misdemean- or charges the next day. The lower court discharged Appellee on counts III through VII, which charged Appellee with distributing several articles of obscene materials on July, 19, 2002 and August 7, 2002. The court also discharged Appellee as to count XI, which, as amended, alleged that Appel-lee operated an unlicensed adult bookstore between July 19, 2002, and August 15, 2002. The remaining counts are not at issue for purposes of this appeal.

The central issue in this appeal is whether the dismissed charges arose from the same criminal episode as the crime for which Appellee was arrested on August 16, 2002. If so, then the speedy trial period commenced to run on all of the charges on August 16th, even though she was not charged with the majority of the crimes until November 15th. State v. Van Winkle, 407 So.2d 1059 (Fla. 5th DCA 1981). Moreover, if the dismissed misdemeanor crimes arose from the August 16th episode, the subsequent consolidation of these charges with the felonies would not revive the misdemeanor counts because the speedy trial time had already expired. State v. Robbins, 830 So.2d 866 (Fla. 5th DCA 2002); Alvarez v. State, 791 So.2d 574 (Fla. 4th DCA 2001). Because we conclude that the various charges did not arise from the same criminal episode, however, Appellee’s speedy trial time did not commence to run on each charge until Appellee was arrested on the particular charge. Furthermore, because the misdemeanor charges were consolidated with the felony counts before the speedy trial time expired on the misdemeanors, the time period for felonies applies. Id.; Fla. R.Crim. P. 3.191(f).

Although the cases in this arena are sometimes difficult to reconcile, our analysis of numerous decisions leads us to the following observations. First, generally, when crimes occur on different days, not as a part of one uninterrupted event, they are not part of the same criminal episode, even when they are related. See e.g., State v. Deratany, 410 So.2d 977 (Fla. 5th DCA 1982) (false report of theft to police; false claim of same theft to insurance company four days later); Giglio v. Kaplan, 392 So.2d 1004 (Fla. 4th DCA 1981) (burglary of auto on day one; forgery of credit card slip next day for card taken in burglary); Jarrell v. State, 756 So.2d 1102 (Fla. 1st DCA 2000) (lewd conduct and carnal knowledge of same victim on different days). Under these circumstances, the temporal separation evinces separate crimes with a separate criminal intent existing for each crime.

Our second observation is that, even when the temporal separation is not significant, when different crimes are involved, they are not deemed a part of the same criminal episode unless they are based on substantially the same acts. Compare State v. Van Winkle, 407 So.2d 1059 (Fla. 5th DCA 1981) (attempted murder; marijuana cultivation), State v. Floyd, 639 So.2d 128 (Fla. 2d DCA 1994) (prostitution; possession of drugs), Walker v. State, 390 So.2d 411 (Fla. 4th DCA 1980) (vehicular homicide; leaving scene of accident), and State v. Lynch, 445 So.2d 687 (Fla. 2d DCA 1984) (battery on law officer; possession of cocaine) with Reed v. State, 649 So.2d 227 (Fla.1995) (robbery and kid-naping charges based on same conduct), Carter v. State, 432 So.2d 797 (Fla. 2d DCA 1983) (driving intoxicated; revoked license), State v. Kelly, 407 So.2d 257 (Fla. 2d DCA 1981) (trafficking in two different pistols as part of same transaction), Robinson v. Lasher, 368 So.2d 83 (Fla. 4th DCA 1979) (reckless driving resulting in manslaughter), Crain v. State, 302 So.2d 433 (Fla. 2d DCA 1974) (driving under the influence of a prohibited drug; possession of prohibited drug found in car).

Here, the distribution of obscenity charges clearly arose from separate episodes than that for which Appellee was arrested on August 16th. The offenses occurred on separate dates and involved different acts. Likewise, we conclude that the unlicensed operation offenses alleged in the information are different episodes than the unlicensed operation offense for which Appellee was arrested on August 16th. Although the license violations involved the same type of conduct, they comprise distinct criminal acts that occurred on different days. Under Orange County code, each different day of operation without a license constitutes a separate offense. Therefore, each day of operation without a license is a separate criminal act or episode. Jarrell, 756 So.2d at 1103.

Based on the foregoing, the order granting discharge on counts III through VII and count XI is reversed.

REVERSED AND REMANDED.

SHARP, W., and PETERSON, JJ„ concur.

      . The Florida RICO (Racketeer Influenced and Corrupt Organizations) Act, sections 895.01-895.06, Fla. Stat. (2002).

      . On July 19, 2002, officers purchased two videotapes. On August 7, 2002, they purchased a magazine, a DVD and a video. On August 16, 2002, officers purchased a DVD. Finally, on September 27, 2002, officers purchased two additional videos.