author: BARFIELD, J.

text:
    Randell THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-1429.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   BARFIELD, J.

The appellant, Colt Randell Thomas, appeals his convictions of first-degree murder, burglary, and grand theft. We reverse and remand for further proceedings.

Appellant entered his wife’s place of employment, a convenience store, followed her to a back room and began firing a handgun he had taken from his brother’s residence. Two shots hit the victim, killing her. One shot hit appellant in the head. Appellant was initially determined to be incompetent to stand trial and was placed in a treatment center. Several months later, appellant was determined to be competent to proceed to trial.

Prior to trial, appellant moved to suppress statements made to Investigator Russ Williams while appellant was a patient at Lake City Medical Center recovering from surgery due to the bullet wound to his head. During the hearing on the motion, the prosecutor agreed that the statements would not be admissible during the state’s case-in-chief. The prosecutor also stipulated that the public defender had been appointed to represent appellant before the statement was taken, and that Williams did not contact the public defender before speaking with appellant. The trial judge denied the motion to suppress the statement.

Appellant also moved to suppress responses he made to questions asked by Sheila Slack, an employee, at Lake City Medical Center. The prosecutor stated these statements were privileged and therefore inadmissible during the state’s case-in-chief, but that the statements might be admissible during the state’s rebuttal. The trial judge ruled the statements could not be used during the state’s case-in-chief but the order did not prevent the state from entering the statements during rebuttal, with leave of court, should the need for rebuttal be shown.

Appellant argues that the trial judge erred in denying motions for mistrial after witnesses made reference to statements made by appellant. The first reference was during the testimony of defense witness Dr. Ravindra, a psychiatrist. Appellant asserted insanity as a defense, and told several experts that he did not recall a period of time from several days before the charged offenses until he awoke in the hospital. Dr. Ravindra testified that it was her opinion that appellant was not sane at the time of the offenses based in part on the appellant’s use of prescription drugs combined with the consumption of alcohol. On cross-examination, the prosecutor asked Dr. Ravindra what reports she had relied on in determining appellant was suffering from depression on the day of the offenses. Dr. Ravindra replied that she had looked at the report from Lake City Medical Center. When asked if she considered the statements appellant made to a psychological nurse at the Center where “he detailed the crime,” Dr. Ravin-dra stated she did not see those records. Defense counsel then moved for a mistrial because the prosecutor had testified before the jury to inadmissible privileged information. The motion for mistrial was denied and the judge denied the request for a curative instruction.

During the state’s rebuttal, psychiatrist Dr. Werner-Johnson testified that it was her opinion that appellant was sane at the time of the charged offenses. Dr. Wer-ner-Johnson noted that the fact that appellant had concealed the firearm as he entered the convenience store supported her opinion. When asked the source of the information that he had concealed the weapon, she stated “I received an audio tape prior to my last testimony in this case of a taped confession of the defendant.” Defense counsel objected and moved for mistrial, and argued the witness had just placed into evidence the taped statement obtained by Investigator Williams in violation of appellant’s right to counsel. The motion for mistrial was denied, but the trial judge gave the following curative instruction:

Ladies and Gentlemen of the Jury, you should disregard the last answer given by the witness. It should form no part of your decision in this case. One Witness’ comment on their interpretation or impression of any other witness’ pretrial statement should not influence your decision in any way.
The characterization of a pretrial statement as a statement, recording, testimony, deposition, recitation confession or any other descriptive word is not evidence to be considered by you in reaching your verdict.
You are to decide your verdict based on the evidence produced and presented in court before you.
The audio tape that has been referred to has been reviewed by me prior to trial and cannot and will not be used in this trial. It is inappropriate to be placed before you in any way. You should totally disregard any comment about it. The alleged statement has no validity as evidence in this trial. It was unreliable, made under the influence of strong medications after brain surgery and in violation of the defendant’s constitutional rights. You should not consider it in any way.

We agree with appellant that the effect of the jury hearing testimony from two separate witnesses that appellant had made statements to two different persons either confessing or giving details of the crimes was highly prejudicial given the basis of his defense and the testimony of •the defense witnesses. We appreciate the difficult position the trial judge was in, and approve his effort to salvage a lengthy trial by giving a curative instruction after the second motion for mistrial. The instruction, however, seemed to emphasize that appellant had given a taped confession which the trial judge had heard, but that the jury was not to consider the confession due to a legal technicality. Under the circumstances, a mistrial should have been granted. Accordingly, we reverse the convictions and remand for a new trial.

Appellant also appeals the trial judge’s determination that he was competent to stand trial. While the record does contain evidence that would support a finding that appellant was competent to proceed, we note discrepancies between the evidence in the record and the trial judge’s findings. It is questionable whether the same finding of competency would be made absent the inconsistencies. We therefore direct the trial judge to reconsider competency before proceeding with a re-trial.

Finally, appellant correctly argues (and the state concedes) that the trial judge erred in denying appellant’s motion to dismiss the burglary charge because the convenience store was open to the public. For purposes of remand, this issue is controlled by the decision in State v. Byars, 823 So.2d 740 (Fla.2002).

REVERSED and REMANDED.

BOOTH and ALLEN, JJ., concur.

      . The prosecutor was referring to the notes in the Lake City Medical Center records of Sheila Slack.

      . The witness was referring to the taped interview of appellant conducted by Investigator Williams while appellant was hospitalized after surgery.

      . Appellant correctly asserts that the state did not establish a proper basis for admission of the notes of Sheila Slack, an employee of Lake City Medical Center, during the competency hearing.

      . We reject the remaining issues raised on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RAYMOND JAMES & ASSOCIATES, INC. and Raymond James Financial Services, Inc., Appellants, v. R. Ellis GODSHALL, Freedom Center Group, Inc. and Melinda M. Few, Appellees.
    No. 1D03-1864.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    William W. Deem and John N. Giftos of McGuire Woods LLP, Jacksonville, for Appellants.
    Charles R. Walker, Jr. of Hedrick Dewberry Regan & Durant, P.A., Jacksonville; Robert Stokes, St. Petersburg; John Mce. Miller, Jacksonville; and John A. Tucker, IV, Jacksonville, for Appellees.
   PER CURIAM.

Having considered the appellants’ response to the Court’s order dated May 15, 2003, and the appellees’ reply thereto, we dismiss this appeal as premature because there are related claims pending below. See Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002); S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 100 (Fla.1974). We reject the appellants’ argument that the instant order should be deemed final pursuant to McGurn v. Scott, 596 So.2d 1042 (Fla. 1992), and Emerald Coast Communications, Inc. v. Carter, 780 So.2d 968 (Fla. 1st DCA 2001), because the order on appeal does not appear to be an ordinary money judgment except for an improper reservation of jurisdiction to award prejudgment interest.

The appellants filed this appeal seeking review of an “Order Granting Partial Summary Final Judgment,” which entered a judgment for $181,434.63 plus pre-judgment interest, including the traditional language of finality “for which such sum let execution issue.” The trial court specifically declined to make a determination as to a related claim of “whether or to what extent Plaintiff/Garnishor is entitled to recover the difference in value of the Few Account of $304,530.31 at the date the Writ of Garnishment was served and the $181,434.63 at the time the Few Account was liquidated, or any other sums,” and “retain[ed] jurisdiction to determine what additional amounts, if any, may be due.”

Under the Florida Constitution, Article V, section 4(b)(1), the “district courts have jurisdiction to hear plenary appeals, as a matter of right, only from final judgments and orders of the trial courts.” Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002). Generally, an order is final and a plenary appeal may be taken when “the order ... constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court ... between the parties directly affected.” See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); see also Caufield, 837 So.2d at 375 (reaffirming the traditional test for finality requiring that “no further action by the court will be necessary”); McGum v. Scott, 596 So.2d 1042, 1043 (Fla.1992) (stating “[i]t is well settled that a judgment attains the degree of finality necessary to support an appeal when it adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done except the execution of the judgment”). However, a partial final judgment is appealable as a final order when “the judgment ... adjudicates a distinct and severable cause of action, not interrelated with remaining claims pending in the trial court.” S.L.T. Warehouse, 304 So.2d at 99; Fla. R.App. P. 9.110(k).

The appellants concede that the instant order is neither a final order nor an ap-pealable partial final judgment. However, the appellants argue the order should be deemed final pursuant to McGum and Emerald Coast because it contains the traditional language of finality “for which let execution issue” and the money judgment is immediately executable. Therefore, the appellants argue, the order leaves no judicial labor to be performed as to this issue, except the execution thereof, and the order is final and appealable.

The appellants’ rebanee on McGum and Emerald Coast is misplaced because those cases are limited to orders that otherwise appear to be ordinary final money judgments except for an improper reservation of jurisdiction to consider prejudgment interest. Cf. Abifaraj v. Birth-Related Neurological Injury Comp. Ass’n., 844 So.2d 751 (Fla. 1st DCA 2003) (deebning to deem administrative order final under McGum and Emerald Coast where order was not an ordinary money judgment); Nourachi v. South Beaches Professional Park Owners’ Assoc., Inc., 841 So.2d 618 (Fla. 1st DCA 2003) (dismissing appeal of order that reserved jurisdiction to determine amount of interest, legal expenses, and value of improvements); Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002) (holding dissolution of marriage judgment that reserved jurisdiction to determine equitable distribution need not be deemed final). The reasoning of McGurn and Emerald Coast does not apply to non-final orders that appear nonfinal for reasons other than a reservation of jurisdiction to award prejudgment interest and such orders need not be deemed final. Because the instant order is a nonfinal, nonappealable order, this appeal is DISMISSED for lack of jurisdiction. All pending motions are denied as moot.

ALLEN, KAHN and DAVIS, JJ., concur.


text:
    C.C., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D02-5291.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    William H. Fraser and Jenny Lancaster of Legal Ad Society of Palm Beach County, West Palm Beach; Cindy Huddleston, of Florida Legal Services, Inc., Tallahassee, for appellant.
    William Large, General Counsel, and Michael A. Grief, Senior Attorney, Department of Health, Tallahassee, for appellee.
   PER CURIAM.

Appellant seeks review of the Department of Health’s denial of his petition for declaratory statement. The Department concedes that it erred in denying the petition. We accept the Department’s concession of error and vacate the Department’s amended final order. In accordance with the settlement agreement filed with the Court on June 30, 2003, we grant appellant’s motion for setting new deadlines and remand this case to the Department for entry of a declaratory statement on appellant’s petition within ninety days of issuance of the mandate in this cause.

KAHN, VAN NORTWICK and BROWNING, JJ., concur.


text:
    Joseph MOTEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1954.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    Joseph Moten, pro se.
    Carolyn J. Mosley, Assistant General Counsel, Department of Corrections, Tallahassee, Attorney for Appellee.
   PER CURIAM.

As Appellant has been released from custody and was not sentenced to any supervisory period, we dismiss as moot this appeal of the denial of Appellant’s motion for writ of habeas corpus.

DISMISSED.

BOOTH, VAN NORTWICK and HAWKES, JJ., Concur.


text:
    Arnold ADAMS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D03-0726.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    Arnold Adams, pro se, petitioner.
    William L. Camper, General Counsel, and Alexandria E. Walters, Assistant General Counsel, Florida Parole Commission, for respondent.
   PER CURIAM.

We elect to treat the Parole Commission’s motion for remand as a concession of error. Accordingly, we grant the petition for writ of certiorari, quash the circuit court’s order denying Adams’ petition for writ of habeas corpus, and remand to the circuit court for reconsideration in light of Tedder v. Florida Parole Commission, 842 So.2d 1022 (Fla. 1st DCA 2003). We direct the circuit court to expedite its reconsideration of Adams’ petition.

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    Andre JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1792.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    Louis O. Frost, Jr., Public Defender, and Debra D. Billard, Assistant Public Defender, Jacksonville, for petitioner.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Andre Johnson’s request for a belated appeal from the judgment and sentence rendered on March 20, 2003, in Duval County Circuit Court case number 2001-8020-CFA is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    XO COMMUNICATIONS, INC., Appellant, v. DEPARTMENT OF REVENUE, State of Florida, Appellees.
    No. 1D03-2432.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    Michael A. Grain of Anderson & Gulotta, Harrisburg, PA, and Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, and R. Lynn Lovejoy, Assistant Attorney General, Tallahassee, for appellees.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated June 12, 2003, this appeal is hereby dismissed as premature. See Monticello Ins. Co. v. Thompson, 743 So.2d 1215 (Fla. 1st DCA 1999); Hoffman v. Hall, 817 So.2d 1057 (Fla. 1st DCA 2002).

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    Marlene Elizabeth LOWERY, Appellant, v. Garry Lynn LOWERY, Appellee.
    No. 1D03-2740.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2003.
    Jonathan M. Streisfeld and Michael J. McNerney of Brinkley, McNerney and Morgan, Fort Lauderdale, for Appellant.
    Michael W. Jones, Gainesville; Paula Revene of Greene, Smith & Assoc., P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 7, 2003, the Court has determined that the appeal was commenced prematurely. See e.g. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974); see also Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994). Accordingly, the appeal is dismissed -without prejudice to the appellant’s right to seek review of the lower tribunal’s determinations regarding attorney’s fees and costs upon entry of a final order.

DISMISSED.

ALLEN, KAHN and DAVIS, JJ., concur.


text:
    Roderick E. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-160.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 2003.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Miller v. State, 764 So.2d 640 (Fla. 1st DCA 2000).

GRIFFIN, THOMPSON and TORPY, JJ., concur.


text:
    Michael Edward BRANHAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-387.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 2003.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PETERSON and THOMPSON, and JJ., concur.


text:
    Windell HOWELL, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D02-3168.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 2003.

      Windell C. Howell, Orlando, pro se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Cueto v. One Stop Fashion, Inc., 635 So.2d 1087 (Fla. 3d DCA 1994).

SHARP, W., PETERSON and PLEUS, JJ., concur.


text:
    Dennis Anderson JACOB, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3905.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 2003.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

PETERSON, THOMPSON and PLEUS, JJ., concur.


text:
    Ruth H. WHEELER, Appellant, v. Walter L. WHEELER, Appellee.
    No. 4D02-2858.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.
    William T. Hess of Hess & Heathcock, Stuart, for appellant.
    Faith C. Litvack of Thomas R. Garland, P.A., Port St. Lucie, for appellee.
   PER CURIAM.

Affirmed. See Petracca v. Petracca, 706 So.2d 904 (Fla. 4th DCA 1998).

POLEN, STEVENSON and SHAHOOD, JJ., concur.


author: PER CURIAM. FLEET, J. LEONARD, Associate Judge,

text:
    FIRST NATIONWIDE MORTGAGE CORPORATION, Appellant, v. Carolyn BRANTLEY, City of Lauderdale Lakes, and Fairiers Construction Company, Inc., Appellees.
    No. 4D02-2036.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.

      Donna S. Glick of Law Offices of David J. Stern, P.A., Plantation, for appellant.
    Joseph F. Poklemba of James C. Brady & Associates, Fort Lauderdale, for Appel-lee — City of Lauderdale Lakes.
   PER CURIAM.

We review the determination of the priority of liens in a mortgage foreclosure action. The trial court ruled that the lien of appellee, City of Lauderdale Lakes (City), was superior to and had priority over the purchase money mortgage of appellant, First Nationwide Mortgage Corporation (First Nationwide). We reverse.

In 1997, a purchase money mortgage on the property was assigned to and recorded by First Nationwide. The following year, Carolyn Brantley took title to the property. On June 6, 2001, Brantley executed a Home Loan Agreement and mortgage in favor of the City. The agreement stated that the loan was given in connection with the City’s Home Investment Partnership Program for the purpose of making home repairs to the property.

On October 4, 2001, First Nationwide filed a Complaint to Foreclose Mortgage, claiming a default under the terms of the note and mortgage. The City answered the complaint, contending that its lien was superior to First Nationwide’s mortgage. The court entered summary judgment in favor of First Nationwide, but reserved jurisdiction to determine the issue of priority of liens. Thereafter, the court ruled that the City’s lien was superior to and had priority over First Nationwide’s mortgage, basing its ruling on the authority of Miami Shores Village v. Gibraltar Savings & Loan, 561 So.2d 27 (Fla. 3d DCA 1990), and Gailey v. Robertson, 98 Fla. 176, 123 So. 692 (1929).

In Gailey, Gailey held a mortgage which he claimed was superior to a hen claimed by the City of Winter Haven. The city’s lien was a special assessment against property for a local improvement — the paving of certain streets abutting the property. In holding that the city’s lien took priority, the court noted:

All private rights and interests in real property in a municipality are subject to the statutory powers of the municipality to levy assessments for local improvements pursuant to its governmental functions; and the legislature may b[y] statute create liens upon private property in favor of a municipality for local improvements, and make such liens superior to other liens acquired subsequent to the enactment of the statute. The intention of the law making power to give priority to a municipal lien for local improvements over contract hens of individuals may be implied from the language of the law creating the lien and from the nature and purpose of the lien.

Id. at 693. Therefore, because the improvement served a valid public purpose, the city’s lien was superior.

In Miami Shores, the trial court ruled that Gibralter’s lien was superior to Miami Shores’ special assessment Ken for unpaid waste fees against the subject property. The third district reversed, holding that 1) the waste collection lien was superior to the mortgage Ken; and 2) Miami Shores had the authority to impose such a Ken. Id. at 28. This holding was based upon the reasoning of Gleason v. Dade County, 174 So.2d 466 (Fla. 3d DCA 1965). There, the court found that certain waste fees due to the county after the enactment of a city ordinance imposing them as special assessment Kens were superior to Gleason’s mortgage. Id. at 469.

First Nationwide acknowledges the power of municipaKties to attain superior Kens under certain circumstances, but argues that this situation is distinguishable because the mortgage held by the City arises from nothing more than the lending of money for home improvements. The City responds that its mortgage was a municipal Ken, superior to that of First Nationwide, because the loan to Brantley was part of community redevelopment and related services. It relies on section 23-68 of its Code of Ordinances, which states:

Each and every municipal Ken existing from the delivery of municipal services, including Kens for special assessments, code endorsement and the like, shall be deemed to be prior in dignity to any other Ken, including mortgages, irrespective of the date of the recording of the municipal Ken or the date of the recording of any mortgage or any other Ken on real property, and such Ken shall survive any action to foreclose such inferior Ken whether such inferior Ken arises by virtue of a mortgage, a mechanic’s Ken or other security interest in real property: provided, however, that nothing here contained shall be construed to be respecting the priority of Kens, and where such law or statute specially provides for the priority of Kens, the provisions hereof shall be construed to achieve harmony therewith.

Here, although the City’s loan to Brant-ley was provided in connection with the Home Investment Partnership Program, it was nonetheless given for the purpose of making home repairs. While an improved home ultimately may positively affect the surrounding property values and make the neighborhood more attractive for potential home buyers, the Ken held by the City was not the result of municipal services, special assessments or any other type Ken covered under section 23-68 of the City’s Code of Ordinances. It therefore does not take priority over First Nationwide’s purchase money mortgage.

REVERSED.

SHAHOOD and TAYLOR, JJ., concur.

FLEET, J. LEONARD, Associate Judge, concurs specially with opinion.

FLEET, J. LEONARD, Associate Judge,

concurs specially with opinion.

I concur.

While laudable in its goal, the Community Redevelopment Act of 1969 must still comport with fundamental constitutional requirements. Article I, Section 10 of the United States Constitution and Article I, Section 10 of Florida’s Declaration of rights each specifically prohibit governmental bodies from enacting any law which impairs the obKgation of contract. To accept the proposition that governmental assistance to an individual, natural or corporate, for residential improvement automatically becomes superior in dignity to a previously recorded mortgage simply fails to pass constitutional muster.


author: TAYLOR, J.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Stacy ROBINSON, Robert Robinson and Sidney Alan Zuckerman, Appellees.
    Nos. 4D01-4894, 4D02-977.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.

      Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for appellant.
    Diego C. Asencio of Diego C. Asencio, P.A., North Palm Beach, for appellees.
   TAYLOR, J.

Nationwide Mutual Fire Insurance Company (Nationwide) appeals four rulings rendered after a jury verdict for plaintiffs in this underinsured motorist case, No. 4D01-4894. In a related case, No. 4D02-977, Nationwide appeals the final judgment on attorney’s fees. We sua sponte consolidate these two cases for purposes of this opinion.

The specific rulings at issue in the main appeal are (1) a second final judgment rendered after the first judgment, (2) a post-trial order vacating the dismissal of the plaintiffs’ punitive damages claim, (8) an award of pre-judgment interest in the first final judgment against Nationwide, and (4) sanction orders for post-trial discovery violations. On confession of error by appellees, we reverse (1) the second final judgment rendered on December 11, 2001, which was a duplicate of the first final judgment rendered on November 19, 2001, and (2) the post-judgment order vacating the dismissal of plaintiffs’ punitive damages claim. We affirm the trial court’s award of prejudgment interest on the final judgments in light of Nationwide’s failure to preserve this issue for review. Further, we find no error in the trial court’s allowance of costs and interest taxable in excess of the UM policy limits. See Foremost Ins. Co. v. Warmuth, 649 So.2d 939 (Fla. 4th DCA 1995)(explaining that taxable costs and interest may be assessed above UM policy limits).

During post-trial discovery proceedings to determine whether the plaintiffs were entitled to attorney’s fees based upon settlement proposals, the trial court held numerous hearings on charges of discovery violations by both parties. Nationwide repeatedly objected to discovery, claiming that extensive discovery on the issue of attorney’s fees was unnecessary because only the timeliness of the settlement offers was in dispute and that, as a matter of law, the offers were not timely made. Nationwide maintained that the plaintiffs were misusing the discovery process as a “fishing expedition” to gain information that they could use in a subsequent bad faith claim. Plaintiffs disputed this contention, asserting that there was legitimate disagreement over the date of service of the settlement offers.

After several months of hearings on discovery violations, the trial court ultimately determined that there was “a deliberate and contumacious disregard by Nationwide of its discovery obligations” after the court had ordered discovery. The court granted the plaintiffs’ motions for sanctions and entered an order striking Nationwide’s opposition to the plaintiffs’ motion for attorney’s fees under the Offer of Judgment statute. After holding a hearing on the amount of attorney’s fees and costs to be awarded, the court entered a judgment against Nationwide for $444,535.01 in attorney’s fees and costs. On appeal, Nationwide argues that the trial court erred in granting the plaintiffs’ motions for sanctions and in refusing to consider its own motion for sanctions against the plaintiffs’ counsel.

“A trial court’s decision to impose sanctions involves the exercise of discretion.” Tramel v. Bass, 672 So.2d 78, 82 (Fla. 1st DCA 1996)(citing Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)). As such, “the trial court must be accorded considerable latitude in dealing with serious abuses of the judicial process.” Id. The reviewing court will reverse only if the trial court has abused its discretion in imposing sanctions. See id.

In Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), our supreme court stated:

In reviewing the true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

Id. at 1203. Thereafter, in Mercer, the court decided that the abuse of discretion test adopted in Canakaris should apply to determining whether a trial court has abused its discretion in imposing such sanctions. Mercer, 443 So.2d at 946.

In this case, the record is rife with instances of Nationwide’s stonewalling tactics and efforts to thwart discovery sought by plaintiffs. We thus find no abuse of discretion in the trial court’s decision to impose sanctions against Nationwide for violating its discovery orders. See Precision Tune Auto Care, Inc. v. Radcliffe, 804 So.2d 1287 (Fla. 4th DCA 2002)(finding no abuse of discretion in striking franchiser’s pleadings based upon continued “foot dragging” and considerable delay in producing documents and participating in deposition); J.T.R., Inc. v. El Hadri, 632 So.2d 241 (Fla. 3d DCA 1994)(holding that striking of pleadings and entry of default were within trial court’s discretion where there was ample evidence that defendant willfully and contemptuously refused to comply with prior court orders requiring productions of the subject documents by giving a false story to the court concerning the whereabouts of same). Further, we find no error in the trial court’s implicit decision to refrain from imposing sanctions upon the plaintiffs’ counsel for his conduct during the discovery process. Again, the trial court was in the better position to decide whether counsel’s conduct was sanctionable.

We now turn to the appropriateness of the sanctions imposed by the court. Although we find that the trial court acted within its discretion in sanctioning Nationwide for discovery violations, we conclude that the court erred in striking Nationwide’s opposition to the plaintiffs’ attorney’s fees claim under the offer of judgment statute as a discovery sanction. This sanction had the effect of precluding Nationwide from arguing that the plaintiffs’ demand for judgment was untimely, thereby finding the plaintiffs’ entitlement to fees by default. While Florida Rule of Civil Procedure 1.380 permits the striking of “pleadings” as a discovery sanction in certain instances, it does not allow a defense to be stricken so as to validate and breathe new life into a void claim.

From the beginning of post-trial proceedings, Nationwide argued that the plaintiffs’ demand for judgment was served prematurely and thus did not entitle plaintiffs to an award of attorney fees under section 768.79, Florida Statutes (1997) and Florida Rule of Civil Procedure 1.442. Rule 1.442 sets forth the time periods applicable to proposals for settlement and provides, in pertinent part, that “[a] proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant.” Fla. R. Civ. P. 1.442(b). In this case, it was undisputed that the demand for judgment bore a certificate of service indicating service of the demand on Nationwide within 90 days after service of the plaintiffs’ complaint, contrary to rule 1.442(b). Plaintiffs, however, disputed the date that the demand was “actually” mailed and, further, advanced a theory of “constructive service” of the complaint on a date earlier than that reflected in the return of process, based on the Nationwide adjuster’s knowledge that the lawsuit was forthcoming. Consequently, the trial court was persuaded that there were factual issues of timeliness that required extensive discovery.

To determine the timeliness of a proposal for settlement under rule 1.442, we look to the date set forth on the Certificate of Service of the proposal and the date noted on the return on service of process of the complaint. To do otherwise, as the plaintiffs suggest, would create uncertainty in the enforcement of the rule. There would be no end to the myriad of factual scenarios presented by litigants to demonstrate timeliness. As we discussed in Grip Development, Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So.2d 262 (Fla. 4th DCA 2000), we need “precise, strictly enforced time requirements for conveying statutory offers or demands ... to guide the bench and bar.” Id. at 266. Toward that end, we must have a uniform means by which to measure the timeliness of acts constituting service of offers or demands.

We have repeatedly held that untimely offers or demands for judgment are void from their inception. See id. (holding that the plaintiffs settlement proposal served less than 90 days after service of complaint of defendant was invalid); Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776 (Fla. 4th DCA 1999)(holding that proposal made within 45 days before date set for trial was void). We have also acknowledged that attorney’s fee statutes and rules, including those governing proposals for settlement, are to ■ be strictly construed. See Schussel, 736 So.2d at 777-78. In Grip Development, we noted that case law suggests that a party seeking to obtain attorney’s fees has the burden of showing compliance with the rules. 788 So.2d at 266. Because the demand for judgment in this case was untimely, it was void from its inception and could not become valid at any time thereafter. See Schussel, 736 So.2d at 778. Thus, notwithstanding the trial court’s finding that Nationwide’s conduct during discovery warranted sanctions, an award of attorney’s fees under section 768.79 was not a viable sanction.

For the reasons stated above, we affirm the trial court’s order granting the plaintiffs’ motion for sanctions against Nationwide, but reverse the award to plaintiffs of attorney’s fees and costs under section 768.79. We remand this cause to the trial court for consideration of any alternative sanctions it may deem appropriate.

AFFIRMED in part; REVERSED in part, and REMANDED.

WARNER and SHAHOOD, JJ., concur.


author: RAMIREZ, J.

text:
    Maria HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1726.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Charles J. Crist, Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   ON MOTION FOR CLARIFICATION

RAMIREZ, J.

We grant appellant Maria Hernandez’s Motion for Clarification and substitute the following opinion for our prior opinion dated June 25, 2003.

Hernandez appeals her conviction and sentence to fifteen years in prison for burglary of an occupied dwelling and petit theft. Because the trial court failed to conduct a Richardson hearing and gave an erroneous, albeit unobjected to, jury instruction, we reverse the burglary conviction. The petit theft conviction is affirmed.

I. The Facts

Appellee State of Florida charged Hernandez with burglary of an occupied dwelling and grand theft of more than $100 and less than $300. At trial, John Spiller, the alleged victim, was the only witness to testify.

The facts to which he testified are somewhat bizarre. He stated that he knew Hernandez and was aware that she was homeless. On April 24, 2001, he was outside of his apartment drinking beer. At approximately 11:00 p.m. on that evening, he returned to his apartment after consuming between eighteen and twenty-four beers. When he entered, he left the front door open and walked into his living room. He was alone in his apartment, except for his dog. He turned on the television to watch the lotto numbers air, but dozed off.

A short time later, a flashing light coming from his bedroom awakened him. When he turned on a light switch, he saw Hernandez in his bedroom coming out of the closet with five bags which he thought contained her personal belongings. She explained that the police had run her off from across the street where she used to live in an empty trailer truck. As Hernandez was walking towards the front door, Spiller offered her a beer. He thought that she would stop and have a beer, but by the time he went to the refrigerator, Hernandez was out the door.

When Spiller opened his refrigerator, he noticed that there was no food left and realized that Hernandez’s bags contained his belongings. He chased Hernandez and managed to retrieve one bag from her. He later contradicted himself by testifying that he ran towards Hernandez to help her with one of the bags that was falling from her shoulders and when he touched the falling bag, he noticed that it was ice cold. He grabbed the ice-cold bag and returned to his apartment.

Spiller also claimed that he reported the incident to a police officer on the street who refused to help him and told Spiller to call 911. He estimated that the value of his loss was close to $300.00. Hernandez was arrested several weeks later.

II. The Discovery Violation

Before Spiller began testifying, the defense requested a sidebar because Spiller was carrying a plastic bag that he had placed on the table at the witness stand. The State replied: “It’s a bag apparently he wants to keep it with him. We’ll ask him to move it .... ” Later during his testimony, the prosecutor asked Spiller: “Did you find anything related to the defendant in your house? Anything at all that .... ” Spiller interjected “yes,” and the prosecutor continued “... you saw when you got back to your house?” Spiller then held up the plastic bag and stated that “I found these. Evidently she [Hernandez] kicked out her shoes when .... ” At this point, defense counsel called for a sidebar. The court excused the jury and then discussed the shoes with Spiller. Spiller described the shoes, claimed that he tried to give them to the police officer who would not fingerprint them, and maintained that the shoes belonged to Hernandez.

Defense counsel requested a curative instruction and a Richardson hearing. He argued that he was prejudiced because he was unaware of the shoes, and the jury had seen the bag and wanted to know what was inside the bag. After a brief discussion, the court concluded that the shoes would not be admitted, but Spiller could testify about the shoes, thus no Richardson violation had occurred. The trial court reasoned that the defense was not prejudiced because they had the opportunity to depose Spiller and failed to ask him whether anything was left in his apartment, and the jury had not seen the bag’s contents.

Without holding a hearing, the court also concluded that the defense was not prejudiced and that the State did not know anything about the shoes. We cannot agree with either conclusion. The defense was obviously prejudiced because Spiller was allowed to testify about the shoes and his assumption that they belonged to Hernandez. The record shows that they were size 11 shoes and when the defense attempted to see if they fit Hernandez, the court prevented it, stating that this was “not the O.J. case.” In closing argument, the State was allowed to extrapolate that (1)the shoes belonged to Hernandez because they were too small for Spiller; (2) she had left them there; (3) Hernandez had removed her shoes and tiptoed around Spiller to go into the kitchen; and (4) she had removed her shoes so as not to awaken Spiller. The shoes were thus an important part of the State’s argument on criminal intent.

Additionally, we cannot agree that the discovery violation was unintentional. The State’s question to Spiller clearly reveals that it knew what was in the bag, a fact candidly admitted at oral argument before this Court. A Richardson hearing would have made it even clearer. While the trial court has discretion to determine whether a discovery violation would result in harm or prejudice to the defendant, “the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances.” Richardson v. State, 246 So.2d 771, 775 (Fla.1971).

The trial court’s remedy of simply allowing Spiller to testify about the shoes without admitting the shoes into evidence has been previously rejected. In Barrett v. State, 649 So.2d 219 (Fla.1994), the Florida Supreme Court held that a Richardson hearing was required where the State failed to disclose palm prints to the defense, even though the fingerprint expert had only testified about them without introducing them into evidence. In our case, the failure to introduce the shoes may have actually exacerbated the problem because the defense was thereby prevented from arguing that they were too large to belong to Hernandez.

III. The Instructions

The court charged the jury with instructions on burglary and the lesser-included offense of trespass of structure or conveyance. Both instructions indicated that Hernandez could be found guilty of either of the charges by entering or remaining in Spiller’s apartment. Defense counsel did not object to the jury instructions.

The “remaining in” language in a burglary instruction only applies in situations where the “remaining in” is surreptitious. See Delgado v. State, 776 So.2d 233, 240 (Fla.2000); Braggs v. State, 815 So.2d 657, 659 (Fla. 3d DCA 2002). In Delgado, the Florida Supreme Court emphasized that the “remaining in” clause should be limited to the defendant who surreptitiously remains because “in the context of an occupied dwelling, burglary was not intended to cover the situation where an invited guest turns criminal or violent. Rather, burglary was intended to criminalize the conduct of a suspect who terrorizes, shocks, or surprises the unknowing occupant.” Delgado, 776 So.2d at 240. We cannot agree that the inclusion of the “remaining in” language in the burglary instruction in this case, without an instruction that the “remaining in” be surreptitious, did not constitute fundamental error.

The jury in this case could have very well concluded that Hernandez formed the intent to commit burglary while she remained in the apartment. There is undisputed evidence that Spiller knew Hernandez and that Hernandez entered Spiller’s apartment through an open front door while Spiller slept. When Spiller awoke, Hernandez’s presence did not startle him and he was not at all upset to find Hernandez inside his apartment. He in fact offered Hernandez a beer and exchanged words with her. Spiller also saw Hernandez place some of her bags in his bedroom closet, and Spiller thought that the bags contained her belongings and that she wanted to leave them in his apartment for the night. The jury could have found the storage of her belongings as a basis for Hernandez to be in Spiller’s apartment. Hernandez’s entry is thus not necessarily consistent with the purpose to commit burglary.

We therefore reverse the burglary conviction and remand the case for a new trial, but affirm the petit theft conviction.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . In its pre-trial discovery response, the State asserted that there were no tangible papers or objects obtained from or belonging to Spiller. At trial, the State maintained that it was unaware that Hernandez had brought the shoes into the courtroom.


text:
    Ricardo FERREIRA, Appellant, v. Susanna TIMOR, f/k/a Susanna Ferreira, Appellee.
    No. 3D03-646.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Ricardo Ferreira, in proper person.
    Elena De Socarraz, Coral Gables, for appellee.
    Before GERSTEN, FLETCHER and WELLS, JJ.
   PER CURIAM.

Affirmed. See Braznell v. Braznell, 140 Fla. 192, 191 So. 457 (1939).


author: KLEIN, J.

text:
    Jodice Pierre LOUIS and Michel Joseph, Appellants, v. Shenika SKIPPER, Sandra Peterson, individually, Broward County School Board and State Farm Mutual Automobile Insurance Co., a foreign corporation, Appellees.
    No. 4D02-2164.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.

      Arnold R. Ginsberg of Ginsberg & Schwartz, Miami, and Robert F. Reck of Baker & Reck, Chartered, Hallandale Beach, for appellants.
    Christopher J. Lynch of Angones, Hunter, McClure, Lynch, Williams & Garcia, P.A., Miami, for appellee Broward County School Board.
   KLEIN, J.

Appellant plaintiffs were injured when they were struck by a privately owned automobile driven by a high school student during a school field trip. We affirm a summary judgment holding that the school board is not liable.

The field trip consisted of students driving their own vehicles or riding with others to a store to purchase uniforms to wear to work in hospitals, a requirement of a health occupations class. One of the students was alleged to have negligently driven her mother’s vehicle, resulting in injuries to the plaintiffs, who were not involved with the field trip.

In order to participate in the field trip, the students’ parents had to consent to their children driving or riding in another vehicle. The students were required to follow all of the same conduct rules that would apply when they were in class. The sole theory on which plaintiffs rely for holding the school board liable is that, because the students were under control of the school so far as their behavior was concerned, the student causing the accident was an agent of the school board.

In Booker v. Okaloosa Board of Public Instruction, 328 So.2d 619 (Fla. 1st DCA 1975), a teacher authorized several students to use a truck to pick up some lumber to use for a float in the homecoming parade. One of the students obtained his father’s truck and another student, who was riding behind the cab in the bed was injured when the driver made a sudden turn. The court held that the school board could be liable only if plaintiff could establish negligence by the teacher, which was a legal cause of the accident. We agree with the reasoning of Booker.

Inasmuch as the student in this case was neither an employee of the school board, nor driving a school board vehicle, we do not see how the school board could be liable. If the school board had chartered a bus or van to transport these students, the school board would not be liable for the negligence of the driver, because the driver would be an independent contractor. Dixon v. Whitfield, 654 So.2d 1230 (Fla. 1st DCA 1995). The school board in this case had no more control over the driving than did the school board in Dixon. We therefore affirm.

SHAHOOD and GROSS, JJ., concur.


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    Freddie L. CRAWFORD, Appellant, v. CITY NATIONAL BANK and Westport Recovery Corporation, Appellees.
    No. 3D02-1274.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Rudolph D. Griffith, Miami, and Michael E. Hampden, Plantation, for appellant.
    Friedman & Greenberg and Debra L.' Greenberg and Robert D. Friedman, Plantation, for appellees.
    Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See § 222.11(l)(c), Florida Statutes (2002); Mazzella v. Boinis, 617 So.2d 1156 (Fla. 4th DCA 1993), review dismissed, 626 So.2d 203 (Fla.1993); In re Barncastle, 8 B.R. 464 (Bankr.S.D.Fla.1981).

LEVY and FLETCHER, JJ., concur.

SCHWARTZ, Chief Judge

(specially concurring).

I entirely agree with affirmance, notwithstanding that my failure to adhere to the rule that cases should be decided on the basis they were litigated below and argued on appeal led to the vehement expression of views at oral argument which, it was soon revealed, were contrary to the law of Florida. No harm done except to my (heretofore monumental) legal ego.


text:
    LLP MORTGAGE LTD., f/k/a Loan Participant Partners, Ltd., a Texas Ltd. Partnership, Appellant, v. Vincent P. CRAVERO and Dorothy C. Cravero, Appellees.
    No. 4D02-2443.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.

      Anne S. Mason and Laurie A. Dart of Mason Law, P.A., Clearwater, for appellant.
    E. Scott Golden and Donielle Mason, Ft. Lauderdale, for appellees.
   KLEIN, J.

When the federal government is the mortgagee, there is no statute of limitations which applies to foreclosure, because the federal government has sovereign immunity from state statutes of limitations, United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940), and the federal statute of limitations does not apply to actions to establish title to real property. 28 U.S.C. § 2415(c). The question we must decide is whether an assignee of the government has the same protection from statutes of limitation that the government had. We conclude that it does.

In this case, the Small Business Administration (“SBA”) was the original lender and accelerated the mortgage in 1995, but took no further action until it assigned the mortgage to LLP in 2001. When LLP brought this suit to foreclose, the trial court held that it was barred by Florida’s five year period of limitations, section 95.11(2)(c), Florida Statutes, the cause of action having accrued when the mortgage was accelerated in 1995.

The parties have found only one case involving this precise issue, UMLIC VP LLC v. Matthias, 234 F.Supp.2d 520 (D.Vi. 2002), in which the court held that the assignee of the SBA was not subject to the Virgin Islands’ statute of limitations. The court relied on cases in which it has been held that when the federal government assigns a promissory note, the assignee is subject only to federal statutes of limitation. See, e.g., F.D.I.C. v. Bledsoe, 989 F.2d 805 (5th Cir.1993), and other cases cited in UMLIC, 234 F.Supp.2d at 524. In Cadle Co. II v. Stamm, 633 So.2d 45 (Fla. 1st DCA 1994), the court held that the assignee of a promissory note by the FDIC was subject only to the extended federal statute of limitations applicable to the FDIC.

The rationale of the above cases is based on the rather universally followed proposition that an assignee stands in the shoes of the assignor and has all the rights enjoyed by the assignor. Dubbin v. Capital Nat’l Bank of Miami, 264 So.2d 1 (Fla.1972); Dove v. McCormick, 698 So.2d 585 (Fla. 5th DCA 1997). We agree with the reasoning of UMLIC, which is on all fours, as well as the cases on which UMLIC was reasoned. We therefore conclude that LLP’s foreclosure is not barred by Florida’s statute of limitations and reverse.

SHAHOOD and GROSS, JJ„ concur.


author: SHAHOOD, J.

text:
    Arlene LAMONT, Appellant, v. Donald G. LAMONT, Appellee.
    No. 4D02-3300.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.

      Sara Lawrence of Law Office of Sara Lawrence, P.A., Miami, for appellant.
    Thomas H. Connors of Law Office of Thomas H. Connors, Miami, for appellee.
   SHAHOOD, J.

Arlene Lamont, the wife in this dissolution action, seeks review of the Final Judgment dissolving her marriage to Donald G. Lamont. She raises three issues on appeal. With respect to one issue raised, we hold the trial court erred in failing to award the wife permanent periodic alimony. We affirm as to all other issues raised.

The parties were married in 1973 and separated in 1996, a period of twenty three years. At the time of the final hearing in May of 2002 the wife was sixty six years old and in relatively good health. The husband was sixty nine years old and in relatively good health.

From the date of the parties’ separation in 1996 to the date of the final hearing, the husband paid the wife’s living expenses, approximately $1300 a month. The wife also received, and continues to receive, $525 per month from social security. Those were her only sources of income. Although she worked for some periods outside the home, the wife was primarily a homemaker during the twenty-three year marriage.

The husband’s income consisted of a monthly social security payment in the amount of $993, a $1,000 a month salary from a driving school of which he is part owner, and approximately $2,000 from his retirement.

The trial court denied the wife’s request for alimony finding that she “certainly hás a need for alimony,” but the husband “has no real ability to pay.” As part of the equitable distribution scheme, the court entered a qualified domestic relations order (QDRO) directing one-half of the husband’s pension payments to be distributed to the wife. As a result, pursuant to the Final Judgment and the QDRO, the wife has an income of $525 per month from social security and approximately $1,000 per month from the husband’s pension for a total monthly income of $1,525. The husband’s total monthly income is approximately $2,993.

Two primary considerations in determining permanent periodic alimony are “the monetary needs of the receiving spouse and the ability of the other spouse to pay.” Weeks v. Weeks, 416 So.2d 811, 812 (Fla. 4th DCA 1982); see also § 61.08(2)(a)-(g), Fla. Stat. (2002). Permanent alimony is awarded to enable the former spouse to maintain the lifestyle enjoyed during the marriage. See Kneeht v. Knecht, 629 So.2d 883, 887 (Fla. 3d DCA 1993), rev. denied, 639 So.2d 978 (Fla.1994).

In this case, as a result of the trial court’s equitable distribution plan, the husband’s monthly income is approximately double that of the wife’s. Although the husband claims he is unable to pay alimony, it was pointed out below that when the parties were separated, he managed to pay the wife’s monthly expenses of $900 per month plus credit card payments of $400 per month. Under these circumstances, the trial court erred in concluding that the husband did not have the ability to pay alimony despite the wife’s clear need.

Accordingly, based on the facts of this case, we reverse and remand with instructions to determine the amount of permanent periodic alimony to be awarded to the wife in accordance with section 61.08, Florida Statutes (2002).

REVERSED AND REMANDED.

WARNER and KLEIN, JJ., concur.


text:
    George MIMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1356.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH and SHEVIN, JJ.
   PER CURIAM.

George Mims appeals a judgment and sentence for attempted manslaughter with a firearm. The trial court committed fundamental error when it gave an erroneous jury instruction to the jury. See Thompson v. State, 814 So.2d 1103 (Fla. 4th DCA 2002); King v. State, 800 So.2d 734 (Fla. 5th DCA 2001). Accordingly, we vacate the sentence and reverse and remand for a new trial.

Reversed and remanded for a new trial.


text:
    Roger WILLIAMSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1075.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.

      Roger Williamson, in proper person.
    Charles J. Crist, Jr., Attorney General and Douglas J. Glaid (Fort Lauderdale), Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and GODERICH, JJ.
   PER CURIAM.

The order under review revoking the defendant’s probation is affirmed, but the cause is remanded for filing of a written order to that effect.


author: COPE, J.

text:
    John W. MANN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1512.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    John W. Mann, in proper person.

      Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, FLETCHER and WELLS, JJ.
   On Rehearing Denied

COPE, J.

On consideration of the motion for rehearing, we withdraw our previous opinion and substitute the following opinion:

John W. Mann appeals an order denying his motion to correct illegal sentence. He contends that his habitual violent felony offender sentence (“HVO”) is inconsistent with the trial court’s oral pronouncement at the sentencing proceeding. We conclude that the position of defendant-appellant Mann is without merit, and affirm the order denying relief.

The defendant entered into a plea bargain in circuit court case numbers 96-26121, 97-9198, and 97-12145. He pled guilty in all three cases as a habitual violent felony offender (“HVO”) and was sentenced to a combination of community control, probation, and alcohol treatment. See Mann v. State, 824 So.2d 330 (Fla. 3d DCA 2002). Thus, as matters stood after the 1997 plea bargain, the defendant had already been adjudicated an HVO.

In 1998, the defendant was found to have violated his probation. At sentencing, both the State and the defense acknowledged that the defendant would be sentenced as an HVO, with the State arguing for a longer sentence and the defense arguing for a shorter sentence. TR., Oct. 6,1998, at 25-28.

When the trial court pronounced sentence, it stated the following:

THE COURT: Mr. Mann, I am going to sentence you as follows. In case number 96-26121, to ten years as an habitual offender with a five year minimum mandatory. In case number 97-9198 on Count I to twenty years as an habitual offender with a ten year minimum mandatory. On Count II, ten years with five year minimum mandatory to run concurrent. Sentence imposed in this case will run concurrent with the sentence imposed in the first case.
In case number 97-12145 to ten years with a five year minimum mandatory on Count I. Credit time served to Counts II and III. Ten years with a five year minimum mandatory on Count IV to run concurrent with Count I and concurrent with the sentences imposed in the other two cases.

Id. at 29.

The defendant points out that in the above passage, the court pronounced sentence as a habitual offender (“HO”), and did not use the phrase, habitual violent offender. Thus, it is the defendant’s argument that he is entitled to have the sentencing order modified to be an HO sentence, not HVO, and eliminate the HVO mandatory minimum sentences. Under the circumstances of this case, we disagree.

First, the defendant had already been adjudicated an HVO at the time of his 1997 plea bargain. Both sides acknowledged at the sentencing proceeding that the sentence upon revocation of probation would be as an HVO. The only dispute between the sides was what the length of the sentence should be.

Against that background, and in considering the nature of the sentence imposed, it is clear that the trial court merely mis-poke by stating that the sentence would be as a habitual offender, rather than stating as a habitual violent offender. We reach that conclusion not only for the reasons already stated, but also because the trial court imposed HVO mandatory minimum sentences upon revocation of probation.

Although the defendant relies on Ashley v. State, 850 So.2d 1265 (Fla. 2003), that case is not applicable here. In Ashley the State requested an HVO adjudication while the defense argued that the court had discretion to impose a lesser sanction. At a July 9, 1999 sentencing, the court sentenced Ashley as a habitual offender to twenty-five years in prison. The court did not impose a mandatory minimum sentence. Id. 850 So.2d at 1266. On July 12, 1999, Ashley was brought back to court and his sentence was increased. The court changed the sentence to be an HVO adjudication and added a ten-year mandatory minimum term. The Florida Supreme Court concluded that this amounted to an increase of Ashley’s sentence after he had begun to serve the sentence, thus violating double jeopardy principles. Id. 850 So.2d at 1267.

The present case is quite different. Here, the defendant was adjudicated to be an HVO in 1997; thus the 1998 sentence upon revocation of probation would likewise be as an HVO. It is clear that in saying the sentence was as a habitual offender, rather than an HVO, this was a mere slip of the tongue which did not give rise to a double jeopardy issue. See McCray v. State, 838 So.2d 1213 (Fla. 3d DCA 2003). The sentence was not increased after it was imposed, and thus there was no double jeopardy violation such as occurred in Ashley.

Affirmed.

      . We have taken judicial notice of this court's files in Mann v. State, 824 So.2d 330 (Fla. 3d DCA 2002) and Mann v. State, 747 So.2d 943 (Fla. 3d DCA 1999).

      . Subsequently this court vacated the HVO adjudication in circuit court case number 96-26121 and remanded for resentencing in that case only. Mann v. State, 824 So.2d at 331.
      The motion to correct illegal sentence which is now before us was filed in circuit court case number 97-9198.


text:
    Donald L. BOTTERBUSCH, Appellant, v. Terri L. BOTTERBUSCH, Appellee.
    No. 4D03-1831.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.

      Amy D. Shield of Amy D. Shield, P.A., Boca Raton, and Thomas R. Garland, P.A., Port St. Lucie, for appellant.
    Jonathan Jay Kirsehner of Kirschner & Garland, P.A., Fort Pierce, for appellee.
   PER CURIAM.

This is a case where two good parents disagree over the mother’s attempt to relocate from St. Lucie County to the Tampa area. The mother was a detective with the St. Lucie County Sheriff’s Department. She accepted a new job with the United States Customs Department which required her to move. The trial court held an evidentiary hearing on March 18, 2003, and entered an order approving relocation. The father appeals. We affirm.

An appellate court’s standard of review of a trial court’s order regarding relocation is whether the trial court abused its discretion. See Dorta-Duque v. Dorta-Duque, 791 So.2d 1148, 1149 (Fla. 3d DCA 2001). We look to see if there is substantial competent evidence to support the trial court’s findings concerning the statutory factors listed in section 61.13(2)(d), Florida Statutes (2002). Id.; see also Jones v. Jones, 633 So.2d 1096 (Fla. 5th DCA 1994). We do not engage in “reweighing the evidence and making the value judgments that are appropriate for the trial judge.” Flint v. Fortson, 744 So.2d 1217, 1218 (Fla. 4th DCA 1999).

Substantial competent evidence supported the trial court’s findings. The evidence showed that: 1) the mother would earn more money and work fewer hours in her new position; 2) the mother and child would live in a house twice the size of their current residence; 3) the child would attend an equal, if not better school than her school in Fort Pierce; and 4) the child would be able to continue gymnastics with a qualified teacher.

The trial court believed that the mother would comply with visitation. She generally facilitated visitation in the past and would continue to do so in the future. The mother chose a new home located outside of Tampa close to an interstate highway for that very purpose.

The trial court recognized the difficulties that would arise with visitation because of the increased distance. Because the father did not anticipate a grant of relocation, he did not provide the court with a proposed visitation schedule if relocation occurred and refused to participate in any discussion about this issue. The mother’s proposed schedule provided a reduction from 156 days to 125 days. The trial court’s order encourages the parties to work with each other and be flexible on visitation, adopting the mother’s proposed schedule “only to the extent that the parties cannot agree between themselves on a visitation schedule.”

We affirm the trial court’s refusal to modify the final judgment to permit the father to have primary residential custody of the child. “A trial court may not modify custody or visitation ‘unless the party moving for such modification demonstrates: (1) a substantial or material change in the circumstances of the parties since the entry of the custody and visitation order; and (2) that the welfare of the child will be promoted by a change in custody and visitation.’ ” Chapman v. Prevatt, 845 So.2d 976, 981 (Fla. 4th DCA 2003) (quoting Knipe v. Knipe, 840 So.2d 335, 339-40 (Fla. 4th DCA 2003)). A primary residential parent’s decision to relocate, “in the absence of other compelling circumstances, does not in and of itself support a change of custody.” Id.

AFFIRMED.

FARMER, C.J., SHAHOOD and GROSS, JJ., concur.


text:
    Martin STONELY, Appellant, v. Dana MOORE and The Dexter Company, Inc., Appellees.
    No. 3D02-3168.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.

      Donald Yates and Kathryn Yates, for appellant.
    Charles M. Milligan, for appellees.
    Before COPE, FLETCHER and WELLS, JJ.
   COPE, J.

Martin Stonely appeals an adverse summary judgment in his suit for imposition of a constructive or resulting trust, and an accounting. We conclude that there must be further proceedings and remand for that purpose.

Defendants-appellees Dana Moore and The Dexter Company, Inc. moved for summary judgment on count two of the complaint filed by plaintiff-appellant Martin Stonely. The trial court entered summary judgment in favor of the defendants on all counts, and the plaintiff has appealed.

The initial question is one of jurisdiction. At the summary judgment hearing, the trial court took the case under advisement. Subsequent to the hearing, the plaintiff filed a notice of voluntary dismissal. Thereafter, the trial court entered a summary judgment in favor of the defendants.

We conclude that the notice of voluntary dismissal was a nullity. Florida Rule of Civil Procedure 1.420 provides in part that a plaintiff may voluntarily dismiss an action “before trial by serving ... a notice of dismissal at any time before a hearing on motion for summary judgment. ...” Fla. R. Civ. P. 1.420(a)(1). In the present case, the notice was not filed until after the hearing on the motion for summary judgment. At that point, the plaintiffs could not dismiss the action by filing a notice; a dismissal could be accomplished only by stipulation of the parties or by order of the court. See id. R. 1.420(a)(1), (2). Since the motion for summary judgment had already been argued, the trial court was entirely correct in disregarding the notice and issuing a ruling on the summary judgment motion.

On the merits, however, we conclude that the summary judgment should not have been entered. First, the defendants had moved for summary judgment on count two only. Since there had been no notice or motion as to counts one and three, summary judgment should not have been entered on those counts. See Kerrigan, Estess, Rankin & McLeod v. State, 711 So.2d 1246, 1248 (Fla. 4th DCA 1998); Williford v. Melbourne Commercial Devel, Inc., 682 So.2d 1234, 1235 (Fla. 5th DCA 1996); Oakley v. Oakley, 439 So.2d 1044 (Fla. 4th DCA 1983).

Second, summary judgment should not have been entered on count two, which was a claim for a constructive or resulting trust. The trial court granted summary judgment on the basis of the statute of frauds. However, “constructive or resulting trusts involving real estate can be based on parol evidence.” Zanakis v. Zanakis, 629 So.2d 181, 183 (Fla. 4th DCA 1993) (citations omitted); Names v. Dawkins, 624 So.2d 349, 351 (Fla. 1st DCA 1993). See generally Marks v. Millman, 641 So.2d 414 (Fla. 3d DCA 1993).

For the stated reasons, the summary judgment is reversed and the cause remanded for further proceedings consistent herewith.


text:
    Larry D. MULLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3268.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before GODERICH and SHEVIN, JJ„ and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. Spikes v. State, 851 So.2d 252, 2003 WL 21749522 (Fla. 3d DCA July 30, 2003); Rodriguez v. State, 826 So.2d 464 (Fla. 3d DCA 2002), rehearing denied with opinion, 837 So.2d 1177 (Fla. 3d DCA 2003), review denied, No. SC03-444, 848 So.2d 1155 (Fla. June 30, 2003); Diaz v. State, 837 So.2d 436 (Fla. 3d DCA 2002), jurisdiction pending, No. SC03-445 (Fla.2003).


text:
    The STATE of Florida, Appellant, v. Kevin HALL and Thierry Tony Thomas, Appellees.
    Nos. 3D03-236, 3D03-237.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Charles J. Crist, Jr., Attorney General, Michael J. Neimand, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellees.
    Before LEVY, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Reversed and remanded for further proceedings in accordance with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).

Reversed and remanded.


text:
    Roberta C. Braker McALLISTER, Appellant, v. Robert McALLISTER, Appellee.
    No. 3D02-1980.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Elena B. Langan, Miami, for appellant.
    Hall, David and Joseph, and Christopher M. David, Miami, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Mettler v. Mettler, 569 So.2d 496 (Fla. 4th DCA 1990).


text:
    POST, BUCKLEY, SCHUH & JERNIGAN, INC., Appellant, v. MONROE COUNTY, etc., Appellee.
    No. 3D02-2066.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Patrick C. Barthet, Miami, and Andrew M. Feldman, for appellant.
    Wayne LaRue Smith, and Seth David Corneal, Key West, for appellee.
    Before GODERICH, GREEN, and RAMIREZ, JJ.
   RAMIREZ, J.

Post, Buckley, Sehuh & Jernigan, Inc. (“PBS & J”) appeals a final order and judgment in favor of Monroe County in a breach of contract action. We reverse the jury award because it was not properly instructed on the duty PBS & J owed the county in providing an accurate estimate on the cost to complete a road project.

The dispute between the parties arose because PBS & J over-estimated the cost to raise the level of Card Sound Road, which led the county to float a bond in excess of what was needed to complete the project. Part of the dispute centered on the fact that the parties entered into two contracts, one in 1981, and another in 1992. Although both contracts were general services agreements, they differed in important respects. In the 1992 agreement, the county acknowledged that PBS & J’s costs of construction and operation would not necessarily be the same as the actual costs incurred by the county. PBS & J also agreed to indemnify the county for its losses and judgments and claims for property damage and for injury to death of persons brought or recovered against the county by reason of any negligent act, error, or omission of PBS & J’s employees or subcontractors. The county also acknowledged in the 1992 agreement that the estimates of probable construction cost could not be guaranteed.

PBS & J provided the county with four cost scenarios for the Card Sound project. In September 1992, the county issued bonds to fund the project. Four months later, prior to determining the actual costs of the project, and prior to obtaining any bids on the costs of the project, the county floated a municipal bond issue in the amount of $4,585,000.00. Bids went out in July 1993. The winning bid was for an amount considerably less than the estimates provided. In fact, the county had sufficient funding without recourse to issuing the bonds. The county then released its bond obligations and sought reimbursement from PBS & J for the unnecessary financing expenses.

The county filed suit against PBS & J alleging breach of contract for failure to provide reasonable and accurate cost estimates, breach of contract for failure to indemnify Monroe County and professional malpractice. PBS & J raised the defense that the county failed to avoid the consequences arising out of the breach.

At trial, the jury found that both the 1981 and 1992 agreements applied and that PBS & J had breached its contract with the county. The jury thus awarded the county the sum of $283,640.00. PBS & J raises seven issues on appeal and the county raises two on cross-appeal. We discuss only those that have merit.

The issue of what duty PBS & J owed the county in providing estimated costs of the Card Sound road-raising project was hotly contested at trial. The jury was instructed, in relevant part, as follows:

It is the general duty of an engineer to be reasonably accurate in providing estimated costs of a project, even when the contract between the engineer and the client contains a warranty disclaimer clause stating that the engineer does not guarantee the accuracy of cost estimates.

This instruction basically removed the relevance of the disclaimer clause contained in the agreements from the jury’s consideration. The jury could ignore the disclaimer clause if it found that the engineer did not provide reasonably accurate estimated costs. The jury, however, should have been permitted to utilize the disclaimer clause as one of the criteria in determining: (1) whether the engineer was contractually obligated to provide reasonably accurate estimated costs so as to create liability when the county proceeded to float the bond prior to determining the actual costs of the project and prior to obtaining any bids on the costs of the project; (2) whether the engineer provided reasonably accurate estimates, considering the disclaimer clause; and (3) whether the county could ignore the disclaimer clause and expedite the issuance of the bonds.

At trial, PBS & J proposed a more neutral jury instruction derived from Lochrane Eng’g, Inc. v. Willingham Realgrowth Inv. Fund, Ltd., 552 So.2d 228, 232 (Fla. 5th DCA 1989):

The duty imposed by law upon professionals rendering professional services is to perform such services in accordance with the standard of care used by similar professionals in the community under similar circumstances.

The county argues that PBS & J had a duty to provide cost estimates within reasonable proximity to the cost of the project, notwithstanding the disclaimer language that such estimates are not guaranteed. The county relies upon several eases from other jurisdictions in support of this proposition. See Durand Assoc., Inc. v. Guardian Inv. Co., 186 Neb. 349, 183 N.W.2d 246, 250-51 (1971); Williams Eng’g, Inc. v. Goodyear, 496 So.2d 1012 (La.1986); Zannoth v. Booth Radio Stations, 333 Mich. 233, 52 N.W.2d 678 (1952); Kostohryz v. McGuire, 298 Minn. 513, 212 N.W.2d 850 (1973). We find that those cases are in-apposite.

In each of those cases, the architect or engineer had grossly underestimated the cost of the project. The courts held that an architect or engineer may breach his or her contract by underestimating the actual cost if the cost overrun is unreasonable. See Durand, 183 N.W.2d at 251 (where bids were received in excess of $600,000.00 and the estimated initial construction cost was $420,000.00); Williams, 496 So.2d at 1017 (where the actual construction cost was $888,688.00, more than double the estimated construction cost of $409,300.00); Zannoth, 333 Mich, at 244, 52 N.W.2d 678 (where the project’s ultimate construction cost was $100,000.00 more than first anticipated); Kostohryz, 212 N.W.2d at 850-51 (where the project’s construction cost was $20,000.00 more than the estimated construction cost). In this case, the county claims that PBS & J breached the contract because PBS & J’s estimates were too high. However, the county does not cite to any case which holds an engineer responsible for overestimating the construction cost of a project.

The county argues that the absence of Florida cases dealing directly with a professional engineer’s duty in providing cost estimates leads to the conclusion that evidence of reasonable methods, while possibly providing a defense if accepted by the jury, is immaterial if the end result relied upon ultimately causes the damage giving rise to a cause of action. The county’s reliance on a number of Florida cases for this proposition is likewise misplaced. See Bay Garden Manor Condo. Assoc., Inc. v. James D. Marks Assoc., Inc., 576 So.2d 744 (Fla. 3d DCA 1991); Hewett-Kier Constr., Inc. v. Lemuel Ramos and Assoc., Inc., 775 So.2d 373 (Fla. 4th DCA 2000); Conklin v. Cohen, 287 So.2d 56 (Fla.1973). None of the cases, however, refer to an engineer’s duty to provide a reasonably accurate estimate.

On this basis, we reverse the final order and judgment entered in the county’s favor and find it unnecessary to address the remaining issues raised on appeal.

Reversed and remanded for a new trial.

      . The malpractice action was eliminated by summary judgment under the economic loss rule.


text:
    Titus BARBER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2196.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Fisher, Lawrence & Malove, and Andrew M. Teschner, Coral Gables, for appellant.
    Charles J. Crist, Jr., Attorney General, and Frederieka Sands, Assistant Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Titus Barber appeals the denial of his rule 3.850 motion in which he raises four instances of ineffective assistance of counsel. We affirm. However, in its order denying the motion, the trial court only addressed three issues. We therefore remand so that the trial court may address Barber’s fourth issue, ineffective assistance of counsel for failure to request a jury instruction pertaining to guilty knowledge of the controlled substance. See Currelly v. State, 801 So.2d 1000 (Fla. 2d DCA 2001); Hurley v. State, 779 So.2d 608 (Fla. 1st DCA 2001) (trial court orders which do not address all of the claims for post-conviction relief will be remanded for entry of an order which does).


text:
    Lance J. THIBIDEAU, Petitioner, v. The ESTATE OF Leslie BLANE, Respondent.
    Nos. 4D03-887, 4D03-1540.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.

      Bruce David Green of Bruce David Green, P.A., Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauder-dale, for respondent.
   KLEIN, J.

The trial court discharged the petitioner as the personal representative of an estate after discovering that he was a disbarred attorney and convicted felon. Convicted felons are not legally qualified to act as personal representatives. § 733.303(l)(b), Fla. Stat. (2002). The court also issued an order for petitioner to show cause why he had not committed a fraud, and indicated that it had no faith in petitioner’s Credibility-

Petitioner then moved to disqualify the court and the court granted the motion in part, disqualifying itself only from the proceeding on the order to show cause. Petitioner argues that the court should have granted the motion as to the entire proceeding.

Florida Rule of Judicial Administration 2.160(f) provides that if a motion for disqualification is legally sufficient, it must be granted and the judge shall “proceed no further in the action.” S. Coatings, Inc. v. City of Tamarac, 840 So.2d 1109 (Fla. 4th DCA 2003)(judge who granted motion for disqualification as to the case could not subsequently preside over a hearing on sanctions against counsel).

We construe the rule to mean that when the motion seeks to disqualify the judge from the entire case, it cannot be granted in part, as was done in this case. Even if the rule did not preclude a partial granting of this motion, we would still be required to grant relief because petitioner’s involvement in this case will not end with his removal as personal representative and the ruling on whether he perpetrated a fraud on the court. Petitioner, while he was personal representative, distributed assets, and these distributions are being questioned. In addition, petitioner is a beneficiary of the estate.

We therefore grant the petitions.

POLEN and MAY, JJ., concur.


author: STEVENSON, J.

text:
    James SHELTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3760.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2003.

      Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

In March of 2002, James Shelton, the appellant, was on community control. Condition 1(a) of Shelton’s community control required that he “remain confined to [his] residence except one half hour before and after [his] approved employment, community service work, or any other activities approved by [his] officer.” The State filed an affidavit of violation, alleging that Shelton had violated this condition by failing to remain at his approved employment site on four days in March 2002. At the violation of community control hearing, Shelton’s employer testified that Shelton was not at work on the relevant dates. As a consequence of his failure to be at work, the trial court revoked Shelton’s community control.

It is well established that a defendant’s probation/community control cannot be revoked for conduct that is not prohibited or required by the order of probation/community control. See, e.g., Meade v. State, 799 So.2d 430, 432 (Fla. 1st DCA 2001)(holding that probation could not be revoked for defendant’s failure to pay for a polygraph test as this was not a condition of probation); Wright v. State, 687 So.2d 291 (Fla. 5th DCA 1997)(holding that probation could not be revoked for defendant’s failure to undergo DNA testing where probation order did not require such testing). Condition 1(a), the condition that Shelton was found to have violated, simply does not require him to be at his place of employment; rather, it requires him to be at home with some limited exceptions. Consequently, we reverse the order of revocation.

REVERSED and REMANDED.

MAY, J., and CHAVIES, MICHAEL B., Associate Judge, concur.


author: NORTHCUTT, Judge.

text:
    Michael JACOBY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3192.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2003.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Michael Jacoby appeals his convictions for possession of methamphetamine and possession of drug paraphernalia. He pleaded no contest to the charges after the circuit court denied his dispositive motion to suppress physical evidence. Fla. R.App. P. 9.140(b)(2)(A)(i). The court should have granted the motion because the evidence was seized during an illegal detention. Therefore, we reverse and remand with directions to discharge Jacoby.

At the hearing on Jacoby’s motion, the arresting officer testified that she received an anonymous tip that people in a car parked behind a Hungry Howie’s restaurant were smoking drugs. No evidence was presented that the tipster described anything about the car other than its location. The officer arrived at the scene shortly after midnight. She did not find a car parked behind the restaurant, but she noticed one parked behind another business in the same strip center.

The officer approached the car’s occupants, asked them for identification, and asked why they were parked at that location. The passenger, a woman, said she lived nearby, but she and Jacoby were talking in the car because her roommate did not permit men in their residence. The officer asked the passenger and Jaco-by to get out of the car, and they complied. The passenger consented to the officer’s request to search her purse, and Jacoby consented to a search of his person. No drugs were discovered in either search. Then the officer asked for consent to search the car, but Jacoby refused.

At this point the officer retrieved her detection dog, Bailey, whom she had tied to a nearby fence. Bailey sniffed the car and alerted to the passenger door and a window. The officer then searched the car and found syringes, one containing methamphetamine and the other containing residue, as well as a silver spoon with methamphetamine residue. The contraband was not in plain view.

The officer was certainly free to ask the car’s occupants why they were parked behind a closed business at such a late hour. This type of consensual police-citizen encounter does not implicate constitutional safeguards. Popple v. State, 626 So.2d 185, 186 (Fla.1993). Such questions can dispel an officer’s suspicion that criminal activity may be afoot. Cf. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, the passenger offered a reasonable, innocent explanation for their presence. The officer did not observe anything else, such as the smell of smoke or drugs in plain view, that might have increased her suspicion that a crime was taking place. Despite this, the officer asked the two to get out of the car.

When a police officer asks a person to exit his car, the encounter becomes an investigatory stop. Popple, 626 So.2d at 188; Parsons v. State, 825 So.2d 406, 408 (Fla. 2d DCA 2002). To justify such a stop, the officer must have a well-founded suspicion that the person has committed, is committing, or is about to commit a crime. § 901.151(2), Fla. Stat. (2001); Popple, 626 So.2d at 186; Parsons, 825 So.2d at 408. Here, the only basis for the officer’s suspicion that Jacoby might be engaged in criminal activity was the anonymous tip.

When an officer acts on an informant’s tip, the reliability of the information must be established before the officer can make an investigatory stop. See Travers v. State, 739 So.2d 1262, 1263 (Fla. 2d DCA 1999). Generally, the problem with an anonymous tip is that the credibility of the informant cannot be assessed. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (holding “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity”). In some situations such a tip, if suitably corroborated, can exhibit “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.” Id. at 327, 110 S.Ct. 2412. But an accurate description of a suspect and his location is not enough; the tip must contain some predictive information that gives the police the means to test the informant’s knowledge and credibility. Florida v. J.L., 529 U.S. 266, 271-72, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Young v. State, 841 So.2d 689, 690 (Fla. 2d DCA 2003).

In this case the anonymous tip lacked any indicia of reliability. The record does not even establish that the tip accurately described Jacoby. His car was not parked at the location the tipster gave, nor was there evidence that the informant related the make, model, or color of the car, or that Jacoby’s car matched any such description. Moreover, the tip contained no “predictive information.” Rather, it described a crime in progress, i.e., people smoking drugs. But the officer did not say that she saw or smelled smoke coming from the car. Thus, the officer’s own observations during the consensual encounter cast doubt on the reliability of the tip. Because the anonymous tip lacked sufficient indicia of reliability, the officer lacked the well-founded suspicion necessary to justify an investigatory stop. For this reason the stop was illegal, the drugs and paraphernalia found in the car were the fruit of an unconstitutional seizure, and the evidence should have been suppressed. Popple, 626 So.2d at 188; Young, 841 So.2d at 690.

The State contends that the alert by the detection dog Bailey gave the officer probable cause to search Jacoby’s car. But even assuming the State had made the showing necessary to support a finding of probable cause based on the alert, see Matheson v. State, 2003 WL 21766489, — So.2d —(Fla. 2d DCA 2003), nevertheless the question of whether the evidence should have been suppressed turned on the propriety of Jacoby’s initial detention. See Denton v. State, 524 So.2d 495, 498 (Fla. 2d DCA 1988) (holding that the question of whether the evidence discovered when a dog alerted on a car should have been suppressed depended on whether the initial stop of the vehicle was proper). As we have discussed, the detention was illegal. This illegality tainted the subsequent seizure of evidence. Cf. Ford v. State, 783 So.2d 284, 286 (Fla. 2d DCA 2001) (holding that if initial detention is illegal, State must prove by clear and convincing evidence “that there has been an unequivocal break in the chain of illegality sufficient to dissipate the taint”) (citation omitted).

Reversed and remanded with directions to discharge Jacoby.

DAVIS and SILBERMAN, JJ., Concur.


author: PER CURIAM. |! VICTORY, J.,

text:
    Kenneth HAYNES v. WILLIAMS FENCE AND ALUMINUM.
    Nos. 2002-C-0442, 2002-C-0478.
    Supreme Court of Louisiana.
    April 21, 2003.
    Bradley J. Gabel, Percy, Smith, Foote & Gabel, Alexandria, Counsel for Applicant in No. 2002-C-442 and Respondent in No. 2002-C-478.
    George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, Counsel for Respondent in No. 2002-C-442 and Applicant in No. 2002-C-478.
   ON APPLICATION FOR REHEARING

PER CURIAM.

In its rehearing application, Williams Fence for the first time claims attorney’s fees for arbitrary and capricious discontinuance of rehabilitation services are not provided for in the Workers’ Compensation Act. This was the position of the dissent herein and now urged on rehearing by Williams Fence. With this per curiam we grant the rehearing for the limited purpose of addressing this issue, otherwise the rehearing application is denied.

With the exception of one lone case in the Third Circuit Court of Appeal, namely, Rollins v. Glitsch, 97-1404 (La.App. 3 Cir. 5/13/98), 713 So.2d 674, writ denied, 98-1590 (La.9/18/98), 724 So.2d 763, which was not followed by other panels within the Third Circuit, most our circuit courts of appeal have consistently held that attorney’s fees for arbitrary and capricious discontinuance of rehabilitation services have been found a “claim due” under La.Rev. Stat. Ann. § 23:1201.2. Alexander v. Roy O. Martin Lumber Co., 00-1344 (La.App. 3 Cir. 5/9/01), 784 So.2d 872, writ denied, 01-1684 (La.9/21/01), 797 So.2d 676; Jones v. Universal Fabricators, 99-1370 (La. App. 3 Cir. 2/9/00), 758 So.2d 856, writ denied, 00-742 (La.5/12/00), 762 So.2d 13; Dubois v. Louisiana Forest Indus., Inc., 98-895 (La.App. 3 Cir. 12/9/98), 722 So.2d 409, writ denied, 99-0049 (La.2/26/99), 738 So.2d 586; see also Mistrot v. York Intern., 97-2374 (La.App. 4 Cir. 4/22/98), 712 So.2d 968.

Under the provisions of La.Rev.Stat. Ann. § 23:1226(B)(3), “[s]hould the employer refuse to provide these [rehabilitation] services, the employee may file a claim with the office to review the need for such services in the same manner and subject to the same procedures as established for dispute resolution of claims for workers’ compensation benefits.” (emphasis added). La.Rev.Stat. Ann. § 23:1201.2, a provision implemented in the resolution of disputed claims for workers’ compensation benefits, provides in pertinent part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims, (emphasis added).

We find that vocational rehabilitation is a “claim due” under La.Rev.Stat. Ann. § 23:1201.2 because La.Rev.Stat. Ann. § 23:1226(A) provides that the employee shall be entitled to prompt rehabilitation services when he has suffered an injury which precludes him from earning wages equal to wages earned prior to the injury. To the extent that Rollins v. Glitsch, 97-1404 (La.App. 3 Cir. 5/13/98), 713 So.2d 674, conflicts with this holding, it is hereby overruled. Accordingly, the rehearing application is hereby denied.

|! VICTORY, J.,

dissenting.

In my view, the Court should grant the petition for rehearing on the issue of whether attorney’s fees for arbitrary and capricious discontinuance of rehabilitation services are awardable under La. R.S. 23:1201, and schedule the matter for briefing and oral argument.

      . We are only presented with the discontinuation of rehabilitation services and a request for attorney’s fees. We are not presented with the failure to commence vocational rehabilitation and whether penalties may also be appropriate in that instance.