source: Caselaw Access Project

author: JOHNSTONE, Justice.

license: Public Domain

text:
    Ex parte Jerry T. FITCH, Sr. (In re Jerry T. Fitch, Sr. v. State of Alabama).
    1010683.
    Supreme Court of Alabama.
    Jan. 24, 2003.
    William J. Baxley and David McKnight of Baxley, Dillard, Dauphin & McKnight, Birmingham, for petitioner.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for respondent.
   JOHNSTONE, Justice.

The petition for a writ of certiorari is denied. In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasoning, and statements of law in the opinion of the Court of Criminal Appeals. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973). This denial of the petition for the writ of certiorari is not an endorsement of the opinion of the lower appellate court. Ex parte Terry, 540 So.2d 785 (Ala.1989); Banks v. State, 358 So.2d 480 (Ala.1978); and Hurst v. State, 293 Ala. 548, 307 So.2d 73 (1975).

WRIT DENIED.

MOORE, C.J., and HOUSTON, LYONS, and WOODALL, JJ„ concur.


author: COBB, Judge.

text:
    James E. PRATT v. STATE of Alabama.
    CR-00-2495.
    Court of Criminal Appeals of Alabama.
    March 22, 2002.

      James E. Pratt, pro se.
    William H. Pryor, Jr., atty. gen., and Jean-Paul Chappell, asst. atty. gen., for appellee.
   COBB, Judge.

On June 2, 1999, Pratt was convicted of three counts of trafficking in drugs (methamphetamine) and one count of possession of drug paraphernalia. Pratt was convicted, as a habitual offender, to a term of life in prison without the possibility of parole. Pratt did not appeal. On May 31, 2001, Pratt filed a Rule 32, Ala. R.Crim. P., petition. Before the State could respond, the trial court summarily denied the petition in a written order entered on August 14, 2001. This appeal followed.

We remand this cause to the circuit court for two reasons: first, to clarify Pratt’s sentences for these convictions, and second, for a determination of whether Claim 2 in Pratt’s petition has merit.

In his petition, Pratt asserted the following claims:

1. The application for, and the affidavit underlying, the search warrant executed in his ease were stale.
2. The trial court erroneously allowed counsel to withdraw prior to sentencing and, therefore, Pratt was not represented by counsel when he was sentenced.
3. The State failed to prove that he was in possession of 28 grams of methamphetamine, and, therefore, he should have been convicted of a lesser-included charge.
4. His sentence exceeded the maximum authorized by law because he should have been convicted of a lesser-included offense.
5. He failed to appeal through no fault of his own. Neither his attorney nor the court informed him of his right to appeal.

The circuit court entered the following order denying the petition:

“After consideration of Defendant’s Petition for Relief From Conviction o[r] Sentence the Court finds that no grounds are raised in the petition for which relief could or should be granted. The Defendant was properly sentenced to Life Without Parole as a Habitual Offender, and no other sentence could apply. Accordingly, Defendant’s Petition is Denied.”

(C.R. 13.) On appeal, Pratt reiterates his claims from his petition.

Claim 1, a constitutional claim, is precluded because it could have been, but was not, raised at trial or on appeal. Rule 32.2(a)(3) and (5), Ala. R.Crim. P. Claims 3 and 4 challenges the sufficiency of the evidence; therefore, they are precluded because they could have been, but were not, raised at trial or on appeal. Rule 32.2(a)(3) and (5).

Claim 5 is completely without merit. Pratt admits in his brief on appeal and in his notice of appeal that he voluntarily fled the jurisdiction in order to avoid sentencing. Rule 26.9(b)(4), Ala. R.Crim. P., provides that during the pronouncement of the judgment and the sentence the trial court shall “[ijnform the defendant as to defendant’s right to appeal.” Because he voluntarily chose to be absent from his sentencing hearing and, as a result, voluntarily forfeited any information the trial court was to impart during the sentencing hearing, Pratt cannot now complain that he was not informed of his rights. Moreover, as for his trial counsel’s alleged failure to inform him of his right to appeal, trial counsel was no longer his counsel because trial counsel had moved to withdraw, presumably because Pratt failed to appear at sentencing. Therefore, Pratt’s failure to appeal was absolutely his own fault.

Claim 2 is problematic, and we remand this case for the circuit court to conduct further proceedings to resolve the claim. In his petition, Pratt claimed that the trial court allowed his trial counsel to withdraw and proceeded to sentence him without appointing new counsel. On appeal, Pratt explains that he was absent from the sentencing proceedings because he voluntarily fled the jurisdiction to avoid sentencing. Pratt also claims that his trial counsel nonetheless appeared at the sentencing hearing, but that trial counsel moved to withdraw before the trial court had handed down the sentence. Pratt alleges that the trial court allowed trial counsel to withdraw before it issued the sentence.

A defendant has a right to counsel during sentencing. See Rule 6.1(a), Ala. R.Crim. P., and Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).

“The constitutional ‘right to counsel, or waiver thereof, is an essential jurisdictional prerequisite to the authority to convict an accused[, and cjonviction without this safeguard is void.’ People v. Carroll, 140 Cal.App.3d 135, 140, 189 Cal.Rptr. 327, 331 (Cal.App. 2 Dist.), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93 (1983) (citing Johnson v. Zerbst [, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)]). Unless a defendant has or waives assistance of counsel, the Sixth Amendment is a jurisdictional bar to a valid conviction and sentence. Johnson v. Zerbst; Stokes v. Singletary, 952 F.2d 1567 (11th Cir.1992); Boruff v. United States, 310 F.2d 918 (5th Cir.1962). See also Lancaster v. State, [638 So.2d 1370, 1373] (Ala.Cr.App.1993) (‘the appellant’s ... right to have counsel appointed on appeal [is a] jurisdictional matter[]’); Lake v. City of Birmingham, 390 So.2d 36, 38 (Ala.Cr.App.1980) (a record failing to reveal any of the circumstances surrounding the appellant’s self-representation ‘will not support the trial court’s judgment wherein the appellant was sentenced to a loss of liberty’).”

Berry v. State, 630 So.2d 127, 130 (Ala.Crim.App.1993) (footnote omitted). See also Custis v. United States, 511 U.S. 485, 494, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (“ ‘If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.... The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.’” (quoting Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938))); Weakley v. State, 721 So.2d 235, 236 (Ala.1998) (holding that the right to counsel at arraignment is a jurisdictional matter).

Although certainly Pratt waived his right to be present during sentencing by voluntarily fleeing the jurisdiction, see Rule 9.1(b), Ala. R.Crim. P., he could not have waived his right to counsel during sentencing unless he did so “in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right.” Rule 6.1(b), Ala. R.Crim. P. See McDonald v. State, 668 So.2d 89 (Ala.Crim.App.1995). Moreover, even though Pratt was sentenced well within statutory guidelines, “ ‘the total denial of counsel at a critical stage such as sentencing is presumptively prejudicial and is not to be deemed harmless error.’ ” McDonald, 668 So.2d at 92 (quoting Golden v. Newsome, 755 F.2d 1478,1483 (11th Cir.1985)).

Therefore, we remand this cause to the circuit court in order for it to determine whether Pratt was represented by counsel during sentencing, and, if he was not, whether he waived his right to counsel by one of the methods prescribed in Rule 6.1(b). If the circuit court finds that Pratt was indeed without counsel during sentencing and that he did not waive his right to counsel, the circuit court should hold a new sentencing hearing and should appoint counsel for Pratt at the hearing, if he is indigent and in need of counsel. If the circuit court finds that Pratt’s claim is without merit and that the appointment of counsel and resentencing is unnecessary, we nonetheless ask that the circuit court clarify that Pratt was sentenced for all four counts for which he was convicted. Due return shall be made to this court in 56 days.

REMANDED WITH DIRECTIONS.

McMILLAN, P. J., and SHAW and WISE, JJ., concur. BASCHAB, J., concurs in the result.

      . The record reflects that Pratt received only one sentence, although he was convicted of four crimes.

       Note from the reporter of decisions: On June 21, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On August 2, 2002, that court denied rehearing, without opinion. On December 20, 2002, the Supreme Court denied certiorari review, without opinion (1012134).


author: SHAW, Judge.

text:
    O.A.C. v. STATE of Alabama.
    CR-00-1355.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Rehearing Denied June 21, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1011870.
    Thomas M. Goggans, Montgomery; and Thomas Daniel Motley, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   SHAW, Judge.

The appellant, O.A.C., was convicted of rape in the first degree, a violation of § 13A-6-61, Aa.Code 1975, and of sodomy in the first degree, a violation of § 13A-6-63, Ala.Code 1975. The victim was his estranged wife, S.M. The appellant was sentenced to 25 years’ imprisonment for the rape conviction and to 12 years’ imprisonment for the sodomy conviction.

The evidence introduced at the trial indicated, in pertinent part, that the appellant cut the telephone line to the victim’s house, broke open the door, and entered the house, where he cursed, threatened, raped, sodomized, and severely beat the victim. The appellant admitted to cutting the telephone line, to breaking into the victim’s house, to striking the victim repeatedly with his open hand, and to having vaginal intercourse with the victim. However, the appellant disputed certain aspects of the victim’s testimony, including her testimony that the intercourse was nonconsensual and that he had sodomized her during the assault.

The appellant presents only one issue on appeal: he argues that the trial court erred in not allowing' him to present evidence indicating that the victim had had extramarital affairs because, he says, those extramarital affairs were the motive behind the victim’s making false rape and sodomy allegations against him.

Before trial, the State made an oral motion in limine, pursuant to Alabama’s “rape-shield” law, formerly § 12-21-203, Ala.Code 1975, now Rule 412, Ala.R.Evid., to prevent defense counsel from questioning the victim about any extramarital affairs and to prevent the appellant, if he chose to testify, from testifying as to whether the victim had had sexual relationships with anyone other than him while she and the appellant were married. In opposition to the motion, the appellant argued that the rape-shield law should not apply to a husband and wife, and that to prevent him from cross-examining the victim, and from testifying himself, about the victim’s alleged extramarital affairs would prevent him from presenting his defense— i.e., that the victim had made up the allegations of rape and sodomy in order to “get him out of the house to have him incarcerated” so that she could obtain custody of their children and continue with her affairs unhindered. (R. 9.) The trial court granted the State’s motion in limine.

During the trial, the appellant asked the court to reconsider 'its grant of the State’s motion. In addition to his previous arguments, the appellant argued that evidence of the victim’s extramarital affairs would be admissible in relation to the assault charge because, he said, it tended to show his mental state at the time of the crimes; specifically, he argued that he had been provoked into assaulting the victim when he learned of her extramarital affairs. The appellant then made an offer of proof regarding the evidence he wanted to present. The appellant testified that on the day of the crimes, the victim admitted to him that she had had extramarital affairs with two different men. He denied that he was beating the victim when she made the statements. However, the appellant admitted that during the victim’s deposition in connection with their divorce proceedings, she stated that she had admitted to having extramarital affairs only because the appellant was beating her at the time. As part of the proffer, the victim testified that on the day of the crimes she told the appellant that she had had extramarital affairs with two men because the appellant was beating her and had threatened to kill her if she did not confirm the names of the people he'thought she was having an affair with. The victim stated that the appellant suggested the names of two men, only one of which she recognized. After the offer of proof, the trial court again granted the State’s motion in limine.

The appellant argues that the trial court’s refusal to allow him to present evidence of the victim’s alleged extramarital affairs was an unconstitutional application of Rule 412 because, he says, it violated his constitutional right to due process of law, namely, to confront his accuser through cross-examination and to present a defense.

Rule 412 provides, in pertinent part:

“(b) In any prosecution for criminal sexual conduct or for assault with intent to commit, attempt to commit, or conspiracy to commit criminal sexual conduct, evidence relating to the past sexual behavior of the complaining witness ... shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or of other witnesses, except as otherwise provided in this rule.
“(c) In any prosecution for criminal sexual conduct, evidence relating to the past sexual behavior of the complaining witness shall be introduced if the court, following the procedure described in section (d) of this rule, finds that such past sexual behavior directly involved the participation of the accused.”

We note, initially, that this Court has repeatedly rejected constitutional challenges to Alabama’s rape-shield law. See, e.g., Mitchell v. State, 593 So.2d 176, 177 (Ala.Crim.App.1991); Fairchild v. State, 505 So.2d 1265, 1269-70 (Ala.Crim.App.1986); and Hall v. State, 500 So.2d 1282, 1286-87 (Ala.Crim.App.1986); see also Ex parte Dennis, 730 So.2d 138, 140 (Ala.1999).

However, in Dennis, the Alabama Supreme Court held that Rule 412 does not necessarily preclude all evidence of the past sexual behavior of the victim. In Dennis, the appellant was convicted of the first-degree rape of his then 11-year-old daughter. Testifying for the prosecution, a medical doctor “stated unequivocally that, in his opinion, [the victim’s] condition was caused by recurrent penetration rather than by a one-time occurrence.” 730 So.2d at 139. In an attempt to rebut that testimony and to establish his innocence, the appellant sought to introduce evidence indicating that someone else had had sexual intercourse with the victim. Specifically, the appellant sought to introduce testimony from C.M., who testified out of the presence of the jury that she had seen another adult male engaging in sexual contact — and possibly intercourse — with the victim. The trial court ruled that C.M.’s testimony was inadmissible under Rule 412 because either it was not probative or its prejudicial effect and tendency to confuse the jury substantially outweighed any probative value it might have. The Alabama Supreme Court upheld the trial court’s ruling that the evidence was inadmissible, finding, among other things, that the prejudicial effect of the evidence outweighed its probative value. However, in doing so, the Court noted the following:

“[W]e conclude that to read Rule 412 as requiring an absolute exclusion of all evidence of past sexual activity between the victim and third persons could, in some cases, violate a criminal defendant’s constitutional rights. See Charles W. Gamble, McElroy’s Alabama Evidence, § 32.01, p. 143 (5th ed. 1996) (‘It would appear, however, that such an absolute exclusion would be inapplicable when to enforce it would violate a criminal defendant’s constitutional rights.’). Therefore, we hold that when Rule 4.12 is applied to preclude the admission of particular exculpatory evidence, the constitutionality of its application is to be determined on a case-by-case basis. Accord Tague v. Richards, 3 F.3d 1133, 1137 (7th Cir.1993). To the extent that cases previously decided by this Court or the Court of Criminal Appeals are contrary to this holding, they are overruled.
"... [OJther states and the federal courts, perhaps anticipating a constitutional argument similar to Dennis’s, have made express exceptions permitting the introduction of evidence of the victim’s sexual history where it is offered to rebut or to explain away scientific or medical evidence offered by the prosecution in a rape case. See Fed. R.Evid. 412....
“Moreover, the exception in Rule 412, Fed.R.Evid., was apparently included in the federal rule because of the outrage over this State’s now infamous prosecutions of the ‘Scottsboro nine’ in the 1930s. See 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5388, pp. 590-598 (1980) (hereinafter “Wright & Graham’). In fact, the exception in the federal rule is known as the ‘Scottsboro exception,’ or a recognition of the ‘Scottsboro rebuttal.’ Id. at 590-91. The trials of the Scottsboro nine serve as an excellent reminder of the need for such an exception.
“In the ‘Scottsboro cases,’ nine black men were accused of raping two white women on a freight train while it was traveling through northern Alabama. A key piece of circumstantial evidence offered on behalf of the prosecution in the defendants’ first trial was medical testimony indicating that small amounts of semen had been found in the vagina of each woman. The defendants attempted to offer evidence in rebuttal to prove that these women had had sex the night before the alleged rapes, and, therefore, that the defendants were not the source of the semen. This rebuttal evidence was important because the small amount and the nonmotile condition of the semen found in the women was inconsistent with their account of a ‘gang rape’ that the women had alleged had occurred on the day they were examined, and because the only other evidence in the trial was the testimony of the alleged victims. The trial court, however, excluded the rebuttal evidence on its own motion and scathingly chastised the defendants’ lawyer for attempting to introduce it. Several of the defendants were later found guilty. Some of the defendants’ convictions were overturned, and other defendants were ■ released when it was later determined that the women were lying about the rape to cover up for their own ‘hoboing.’ ...
“We agree with the other jurisdictions that the ‘Scottsboro exception’ is not only wise, but is constitutionally required in some cases in which the prosecution offers evidence to show that a physical injury or condition of the victim indicates that the defendant committed the offense of rape. To the extent that cases previously decided by this Court or the Court of Criminal Appeals 'are contrary to this holding, they are overruled.
“Of course, the ‘Scottsboro rebuttal’ evidence would not be relevant in a prosecution in which the defendant claims that the victim consented to intercourse, because, in such a case, the defendant admits to being the source of the physical condition. Also, the evidence is admissible only to rebut physical evidence offered by the prosecution; it is not freely admissible by the defendant. In addition, the evidence offered by the defendant to rebut the prosecution’s evidence cannot be ‘reputation’ or ‘opinion’ evidence that would be prohibited by Rule M2, Ala.R.Evid., and it must satisfy the other applicable rules of evidence.”

Id. at 141-42 (emphasis added).

In Ex parte Griffin, 790 So.2d 351 (Ala.2000), the Alabama Supreme Court, addressing a different issue, stated:

“The United States Supreme Court has held that a defendant has a right to put on a defense and that that right includes the opportunity to present evidence proving that another person committed the offense for which he has been charged. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). However, this right is not absolute; instead, the trial court will have to consider the admissibility of such evi dence in conjunction with other legitimate interests involved in the trial process. Chambers, 410 U.S. at 295; see also Guam v. Ignacio, 10 F.8d 608 (9th Cir.1993). As a result, the trial court is presented with a balancing test in order to determine whether the evidence of a third party’s culpability is properly admissible.”

790 So.2d at 353 (emphasis added). In Griffin, the question was whether the appellant should have been permitted to introduce hearsay evidence tending to show that someone else had pleaded guilty to committing the crime for which the appellant was on trial. The Supreme Court answered the question in the affirmative, concluding that the appellant’s constitutional right to present a defense superseded the hearsay rule.

Similarly, in Adams v. State, 821 So.2d 227 (Ala.Crim.App.), cert. denied, 821 So.2d 227 (Ala.2001), this Court held that the trial court had unconstitutionally prevented the appellant from presenting a defense. In Adams, the appellant was pulled over because the light that illuminated her tag was not working. The arresting officer took the appellant’s driver’s license information and then placed the appellant in the back of his patrol car because he believed she was a “flight risk.” Id. at 228. After determining that the appellant’s driver’s license had been suspended, the arresting officer removed the appellant from his patrol car and had her stand on the sidewalk while he removed his backseat and searched his patrol car. He claimed to have discovered a bag of crack cocaine, and the appellant was charged with possession of a controlled substance. At trial, in an attempt to show that she had been set up and targeted by the police, the appellant sought to introduce evidence indicating, among other things, that approximately three months before the traffic stop, she had filed a rape complaint against another police officer who worked in the same precinct with the arresting officer. The trial court granted the State’s motion in limine to exclude this evidence. This Court reversed, holding that the trial court had abused its discretion and had deprived the defendant of her right to present a defense:

“‘The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that “are essential to due process of law in a fair adversary process.” Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975). The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty -without due process of law include a right to be heard and to offer testimony:
“ ‘ “A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” (Emphasis added [in Rock].) In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948).
‘See also Ferguson v. Georgia, [365 U.S. 570, 602, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961) ] (Clark, J., concurring) (Fourteenth Amendment secures “right of a criminal defendant to choose between silence and testifying in his own behalf’).
“ ‘The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call “witnesses in his favor,” a right that is guaranteed in the criminal courts of the States by the Fourteenth Amendment. Washington v. Texas, 388 U.S. 14, 17-19, 87 S.Ct. 1920, 1922-1923, 18 L.Ed.2d 1019 (1967). Logically included in the accused’s right to call witnesses whose testimony is “material and favorable to his defense,” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982), is a right to testify himself, should he decide it is in his favor to do so. In fact, the most important witness for the defense in many criminal eases is the defendant himself. There is no justification today for a rule that denies an accused the opportunity to offer his own testimony. Like the truthfulness of other witnesses, the defendant’s veracity, which was the concern behind the original common-law rule, can be tested adequately by cross-examination. See generally Westen, The Compulsory Process Clause, 73 Mich. L.Rev. 71,119-120 (1974).
“ ‘Moreover, in Faretta v. California, 422 U.S., at 819, 95 S.Ct., at 2533, the Court recognized that the Sixth Amendment
“ ‘ “grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’ ” (Emphasis added [in Rock].)
‘Even more fundamental to a personal defense than the right of self-representation, which was found to be “necessarily implied by the structure of the Amendment,” ibid., is an accused’s right to present his own version of events in his own words. A defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.
“ ‘Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily exclude material portions of his testimony....
‘Of course, the right to present relevant testimony is not without limiter tion. The right “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” [Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).]’ ”

821 So.2d at 234-235, quoting Rock v. Arkansas, 483 U.S. 44, 51-52, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (last emphasis added).

The common theme running throughout the Alabama Supreme Court’s opinions in Griffin and Dennis, and this Court’s recent opinion in Adams, is the necessity of applying a balancing test. In determining whether the exclusion of evidence violates an accused’s constitutional right to present a defense, the trial court and this Court must balance the right of an accused to present a defense against other interests in the trial process. In this case, we must balance the right of the appellant to present his defense that the accusations against him were false against the policy of this State to protect victims of sexual crimes from being “ ‘harassed] and humili-at[ed]’ ” in attempts to “ ‘divert the attention of the jury to issues not relevant to the controversy.’” Moseley v. State, 448 So.2d 450, 456 (Ala.Crim.App.1984), quoting People v. Cornes, 80 Ill.App.3d 166, 175, 35 Ill.Dec. 818, 825, 399 N.E.2d 1346, 1353 (1980).

We find no abuse of the trial court’s discretion in preventing the appellant from questioning the victim about whether she had had extramarital affairs or from testifying himself that the victim had admitted to him that she had had extramarital affairs. In this respect, we note that the appellant did not proffer evidence to “rebut physical evidence offered by the prosecution,” as discussed in Dennis, and he did not proffer evidence suggesting that a third party had committed the charged offenses, as was the situation in Griffin. Moreover, the victim testified that she told the appellant she had had affairs with two men only because the appellant was beating her at the time and had threatened to kill her if she did not confirm the names of the people he thought she was having an affair with. The appellant denied that he was beating the victim when she made the statement. The victim further testified that the appellant suggested the names of two men, only one of whom she recognized. The appellant denied suggesting any names to the victim. However, no evidence was proffered as to whether one of the men, G.K. (whose name was provided either by the victim, with no suggestion from the appellant, or by the appellant, depending on which version of the events is believed) even exists, and no evidence was proffered as to whether the two men alleged by the appellant to have engaged in extramarital affairs with the victim actually did so. Likewise, the appellant offered no explanation as to what efforts, if any, he had made to identify and locate either man for questioning. Therefore, with the record in this posture, we conclude that the appellant failed to make the necessary threshold showing that the evidence he sought to introduce was sufficiently probative with respect to his claimed defense, so as to tip the balance in favor of admitting the evidence on the basis of his constitutional right to present a defense. The Alabama Supreme Court noted in both Dennis and Griffin that not in every case will the defendant’s right to present his defense be paramount. In Griffin, the Court specifically stated that the constitutional right to present a defense “will supersede [the hearsay rule] only in those cases that ... have a probative alternative theory of culpability and not an alternative theory that is merely speculative and meant only to confuse the jury.” 790 So.2d at 355. The testimony proffered by the appellant with respect to the rape and sodomy charges was speculative, at best. In our view, this kind of inconclusive evidence that, in effect, tends to be confusing and to raise more questions than it answers, falls squarely within the protective policy considerations of the rape-shield law — to protect victims of sexual crimes from being harassed and humiliated in an attempt to divert the attention of the jury to issues not relevant to the controversy. Furthermore, the victim’s testimony on cross-examination would clearly have been detrimental to the appellant in that she would have testified that she had stated that she was having extramarital affairs only because she was being severely beaten at the time she made the statement.

The appellant relies on Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988), as support for his claim that evidence of the victim’s alleged extramarital affairs should have been admitted to show a motive for her making allegedly false allegations. In Olden, the United States Supreme Court held that the appellant should have been permitted to question the victim of the rape as to whether she was living with a man at the time of the trial in order to show that she may have had a motive to lie about the rape in order to protect that relationship. However, the evidence the appellant sought to introduce in Olden, unlike the evidence proffered in the present ease, was undisputed and clearly probative with respect to the victim’s credibility. We also note the appellant’s rebanee on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In Davis, like Olden, the United States Supreme Court was required to balance the petitioner’s constitutional right to confrontation (cross-examination) against the State of Alaska’s policy of protecting a juvenile offender. In Davis, the witness’s juvenile record was undisputed and clearly probative with respect to the witness’s possible bias against the petitioner. Based on the particular circumstances presented, the Court struck the balance in favor of the petitioner’s right to cross-examination, stating:

“Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record — if the prosecution insisted on using him to make its case — is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.”

415 U.S. at 319, 94 S.Ct. 1105.

Although Olden and Davis are similar to the present case in the sense that they illustrate the tension between the right of confrontation and a state’s policy of protecting a witness, they are distinguishable, we think, based upon the strength of the evidence that was proffered by the accused. We find neither Olden nor Davis to control the present case.

For the foregoing reasons, we conclude that the trial court did not abuse its discretion in limiting the cross-examination of the victim and in restricting the appebant’s testimony with respect to the victim’s statements concerning extramarital affairs. We-hold, therefore, that the trial court did not err in granting the State’s motion in limine.

The judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB and BASCHAB, JJ., concur.

WISE, J., concurs in the result.

      . The appellant was also convicted of assault in the third degree, a violation of § 13A-6-22, Ala.Code 1975. However, the appellant does not appeal that conviction.

      . At the time of trial, the appellant and S.M. were divorced.


author: ALTENBERND, Chief Judge.

text:
    In re GUARDIANSHIP OF Theresa Marie SCHIAVO, Incapacitated. Robert Schindler and Mary Schindler, Appellants, v. Michael Schiavo, as Guardian of the person of Theresa Marie Schiavo, Appellee.
    No. 2D02-5394.
    District Court of Appeal of Florida, Second District.
    June 6, 2003.
    Rehearing Denied July 9, 2003.
    Patricia Fields Anderson, St. Peters-burg, for Appellants.
    George J. Felos of Felos & Felos, P.A., Dunedin, for Appellee.
    Jan G. Halisky, Clearwater, for Amicus Curiae Professionals for Excellence in Health Care, Inc.
    Rita L. Marker, Steubenville, Ohio; and James S. Ganther, Tampa, for Amicus Curiae International Task Force on Euthanasia and Assisted Suicide.
    Christopher A. Ferrara, Ramsey, New Jersey, for Amicus Curiae American Catholic Lawyers Association.
    Max Lapertosa and Kenneth M. Walden, Chicago, Illinois; and George K. Rahdert of Rahdert, Steele, Bryan & Bole, P.A., St. Petersburg, for Amici Curiae Not Dead Yet, Adapt, American Association of People With Disabilities, Center for Self-Determination, Center on Human Policy at Syracuse University, The Reverend Rus Cooper-Dowda, Disability Rights Education and Defense Fund, Half the Planet Foundation, Hospice Patients’ Alliance, Dr. James Hall, National Council on Independent Living, National Spinal Cord Injury Association, Self-Advocates Becoming Empowered, Tash, World Association of Persons With Disabilities, and World Institute on Disability.
   ALTENBERND, Chief Judge.

Robert and Mary Schindler appeal the guardianship court’s order denying their motion for relief from a judgment that ordered their daughter’s guardian to withdraw life-prolonging procedures. We have carefully reviewed all aspects of the record on appeal. We conclude that the guardianship court complied with the instructions provided by this court in its last opinion. The guardianship court did not abuse its discretion in denying the motion for relief from judgment: Its ruling is supported by competent, substantial evidence and accords with the law of this state. Accordingly, we affirm the order on appeal.

I.

This is the fourth time that this court has reviewed an order from the guardianship court in this controversy. Schindler v. Schiavo (In re Guardianship of Schiavo), 780 So.2d 176 (Fla. 2d DCA 2001) (Schiavo I); Schindler v. Schiavo (In re Guardianship of Schiavo), 792 So.2d 551 (Fla. 2d DCA 2001) (Schiavo II); Schindler v. Schiavo (In re Guardianship of Schiavo), 800 So.2d 640 (Fla. 2d DCA 2001) (Schiavo III). This case has a long and difficult history, which we will not detail in this opinion. As we explained in our last opinion, Schiavo III:

In Schiavo I, we affirmed the trial court’s decision ordering Mrs. Schiavo’s guardian to withdraw life-prolonging procedures. Schiavo I, 780 So.2d 176 (Fla. 2d DCA), cert. denied, 789 So.2d 348 (Fla.2001) (table). In so doing, we affirmed the trial court’s rulings that (1) Mrs. Schiavo’s medical condition was the type of end-stage condition that permits the withdrawal of life-prolonging procedures, (2) she did not have a reasonable medical probability of recovering capacity so that she could make her own decision to maintain or withdraw life-prolonging procedures, (3) the trial court had the authority to make such a decision when a conflict within the family prevented a qualified person from effectively exercising the responsibilities of a proxy, and (4) clear and convincing evidence at the time of trial supported a determination that Mrs. Schiavo would have chosen in February 2000 to withdraw the life-prolonging procedures.

800 So.2d at 642 (footnotes omitted).

Schiavo III involved a motion filed pursuant to Florida Rule of Civil Procedure 1.540 seeking relief from the original judgment after it had been affirmed in Schiavo I. In Schiavo III, we held that the guardianship court must conduct an evidentiary hearing on the motion, limited to the fourth issue. We stated:

Of the four issues resolved in the original trial ..., we conclude that the motion establishes a colorable entitlement only as to the fourth issue. As to that issue — whether there was clear and convincing evidence to support the determination that Mrs. Schiavo would choose to withdraw the life-prolonging procedures — the motion for relief from judgment alleges evidence of a new treatment that could dramatically improve Mrs. Schiavo’s condition and allow her to have cognitive function to the level of speech. In our last opinion we stated that the Schindlers had “presented no medical evidence suggesting that any new treatment could restore to Mrs. Schiavo a level of function within the cerebral cortex that would allow her to understand her perceptions of sight and sound or to communicate or respond cognitively to those perceptions.” Schiavo II, 792 So.2d at 560. Although we have expressed some lay skepticism about the new affidavits, the Schindlers now have presented some evidence, in the form of the affidavit of Dr. [Fred] Webber, of such a potential new treatment.

Schiavo III, 800 So.2d at 645.

On remand, we permitted the parents to present evidence to establish by a preponderance of the evidence that the judgment was no longer equitable. We specifically held:

To meet this burden, they must establish that new treatment offers sufficient promise of increased cognitive function in Mrs. Schiavo’s cerebral cortex — significantly improving the quality of Mrs. Schiavo’s life — so that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures.

Schiavo III, 800 So.2d at 645.

In order to minimize disputes between the parties, this court’s last opinion also provided guidance to the guardianship court concerning the nature of the hearing to be held on remand. We required an additional set of medical examinations of Theresa Schiavo and the selection of no more than five physicians to provide expert testimony on the issue presented. We instructed that one of the five physicians must be a new, independent physician selected either by the agreement of the parties or, if they could not agree, by the appointment of the guardianship court. We indicated that this physician should be board certified in neurology or neurosurgery, with expertise if possible “in the treatment of brain damage and in the diagnosis and treatment of persistent vegetative state.” 800 So.2d at 646.

On remand, this court anticipated but did not require that Dr. Webber, who had claimed in his affidavit that he might be able to restore Mrs. Schiavo’s speech and some of her cognitive functioning, would testify for the parents and provide scientific support for his claim. However, Dr. Webber, who was so critical in this court’s decision to remand the case, made no further appearance in these proceedings.

Instead, the parents provided testimony from Dr. William Maxfield, a board-certified physician in radiology and nuclear medicine, and Dr. William Hammesfahr, a board-certified neurologist. Michael Schiavo, Mrs. Schiavo’s husband and guardian, selected Dr. Ronald Cranford and Dr. Melvin Greer, both board-certified neurologists, to testify. The fifth physician, selected by the guardianship court when the parties could not agree, was Dr. Peter Bambakidis, a board-certified neurologist practicing in the Department of Neurology at the Cleveland Clinic Foundation in Cleveland, Ohio. He is a clinical professor of neurology at Case Western Reserve University. His credentials fulfilled the requirements of our prior opinion.

Through the assistance of Mrs. Schia-vo’s treating physician, Dr. Victor Gam-bone, the physicians obtained current medical information about Theresa Schia-vo including high-quality brain scans. Each physician reviewed her medical records and personally conducted a neurological examination of Mrs. Schiavo. Lengthy videotapes of some of the medical examinations were created and introduced into evidence. Thus, the quality of the evidence presented to the guardianship court was very high, and each side had ample opportunity to present detailed medical evidence, all of which was subjected to thorough cross-examination. It is likely that no. guardianship court has ever received as much high-quality .medical evidence in such a proceeding.

On the issue that caused this court to reverse in our last decision, whether new treatment exists which offers such promise of increased cognitive function in Mrs. Schiavo’s cerebral cortex that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures, the parents presented little testimony. Dr. William Hammesfahr claimed that vasodilation therapy and hyberbaric therapy “could help her improve.” He could not testify that any “specific function” would improve. He did not claim that he could restore her cognitive functions. He admitted that vasodilation therapy and hyberbaric therapy were intended to increase blood and oxygen supply to damaged brain tissue to facilitate repair of such tissue. These therapies cannot replace dead tissue. Although the physicians are not in complete agreement concerning the extent of Mrs. Schiavo’s brain damage, they all agree that the brain scans show extensive permanent damage to her brain. The only debate between the doctors is whether she has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex.

The evidentiary hearing held on remand actually focused on an issue that was not the issue we anticipated would be the primary issue on remand. The parents contended that Mrs. Schiavo was not in a persistent or permanent vegetative state. Both Dr. Maxfield and Dr. Hammesfahr opined that she was not in such a state. They based their opinions primarily upon their assessment of Mrs. Schiavo’s actions or responses to a few brief stimuli, primarily involving physical and verbal contact with her mother. The three other physicians all testified that Mrs. Schiavo was in a permanent or persistent vegetative state. The guardianship court was most impressed with the testimony of Dr. Bam-bakidis, who concluded that Mrs. Schiavo remained in a permanent vegetative state.

The guardianship court determined that Mrs. Schiavo remained in a permanent vegetative state. The guardianship court concluded that there was no evidence of a treatment in existence that offered such promise of increased cognitive function in Mrs. Schiavo’s cerebral cortex that she herself would elect to undergo it at this time. Having concluded that the parents had failed to meet their burden to establish, by a preponderance of evidence, that the judgment was no longer equitable, the guardianship court denied the motion for relief from judgment and rescheduled the removal of the hydration and nutrition tube. In re Guardianship of Schiavo (Schiavo v. Schindler), Case No. 90-2908-GB-003, 2002 WL 31817960 (Fla. 6th Jud. Cir.Ct. Nov. 22, 2002). When the parents appealed that order, the guardianship court stayed the removal of the nutrition and hydration tube pending review by this court.

II.

We are not reviewing a final judgment in this appellate proceeding. The final judgment was entered several years ago and has already been affirmed by this court. The Florida Supreme Court declined to review this case. See, e.g., Schindler v. Schiavo, 789 So.2d 348 (Fla.2001) (unpublished table decision). Today, our review is limited to an order denying a motion for relief from judgment.

A trial court has broad discretion in determining whether to grant relief from a judgment. Kroner v. Singer Asset Fin. Co., 814 So.2d 454, 456 (Fla. 4th DCA 2001). An appellate court reviews that decision to determine whether the trial court abused its discretion. Id. (noting that this should be particularly true for motions grounded on general “inequity” of final judgment’s prospective application). Indeed, some cases suggest that an appellate court cannot reverse such an order absent a showing of a gross abuse of discretion. LPP Mortgage Ltd. v. Bank of Am., N.A., 826 So.2d 462, 463-64 (Fla. 3d DCA 2002); Tilden Groves Holding Corp. v. Orlando/ Orange County Expressway, 816 So.2d 658 (Fla. 5th DCA 2002); see also Emmer v. Brucato, 813 So.2d 264, 265 n. 1 (Fla. 5th DCA 2002) (expressing confusion as to difference between “gross abuse of discretion” and “abuse of discretion”). In this case, the guardianship court followed the instructions in our last decision. It conducted a thorough hearing and prepared an extensive order. We cannot conclude that the guardianship court abused its discretion when it denied the motion.

The Schindlers have urged this court to conduct a de novo review of the evidence in this case, primarily because of the finality of this decision for their daughter. The guardianship court heard live testimony from many physicians. When it reviewed the videotapes of Mrs. Schiavo and the diagnostic tests and brain scans, it did so with the assistance and expertise of those physicians. This court can review the evidence in the record with only its training in the law and its lay experience. It is simply not proper for this court to review such a fact-intensive determination using a de novo standard.

Despite our decision that the appropriate standard of review is abuse of discretion, this court has closely examined all of the evidence in this record. We have repeatedly examined the videotapes, not merely watching short segments but carefully observing the tapes in their entirety. We have examined the brain scans with the eyes of educated laypersons and considered the explanations provided by the doctors in the transcripts. We have concluded that, if we were called upon to review the guardianship court’s decision de novo, we would still affirm it.

The judges on this panel are called upon to make a collective, objective decision concerning a question of law. Each of us, however, has our own family, our own loved ones, our own children. From our review of the videotapes of Mrs. Schiavo, despite the irrefutable evidence that her cerebral cortex has sustained the most severe of irreparable injuries, we understand why a parent who had raised and nurtured a child from conception would hold out hope that some level of cognitive function remained. If Mrs. Schiavo were our own daughter, we could not but hold to such a faith.

But in the end, this case is not about the aspirations that loving parents have for their children. It is about Theresa Schia-vo’s right to make her own decision, independent of her parents and independent of her husband. In circumstances such as these, when families cannot agree, the law has opened the doors of the circuit courts to permit trial judges to serve as surrogates or proxies to make decisions about life-prolonging procedures. See In re Guardianship of Browning, 568 So.2d 4 (Fla.1990) (affirming In re Guardianship of Browning, 543 So.2d 258, 273-74 (Fla. 2d DCA 1989)); see also § 765.401(3), Fla. Stat. (2000). It is the trial judge’s duty not to make the decision that the judge would make for himself or herself or for a loved one. Instead, the trial judge must make a decision that the clear and convincing evidence shows the ward would have made for herself. § 765.401(3). It is a thankless task, and one to be undertaken with care, objectivity, and a cautious legal standard designed to promote the value of life. But it is also a necessary function if all people are to be entitled to a personalized decision about life-prolonging procedures independent of the subjective and conflicting assessments of their friends and relatives. It may be unfortunate that when families cannot agree, the best forum we can offer for this private, personal decision is a public courtroom and the best decision-maker we can provide is a judge with no prior knowledge of the ward, but the law currently provides no better solution that adequately protects the interests of promoting the value of life. We have previously affirmed the guardianship court’s decision in this regard, and we now affirm the denial of a motion for relief from that judgment.

At the conclusion of our first opinion, we stated:

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.

Schiavo I, 780 So.2d at 180. Nothing in these proceedings has changed this conclusion. The extensive additional medical testimony in this record only confirms once again the guardianship court’s initial decision.

On remand, following the issuance of our mandate, the guardianship court should schedule another hearing solely for the purpose of entering a new order scheduling the removal of the nutrition and hydration tube.

Affirmed.

FULMER and STRINGER, JJ., concur.

      . The initial notice of appeal filed by the Schindlers also sought appellate review of an order denying an "emergency motion to hold ruling in abeyance pending development of additional medical evidence.” The initial brief filed by the Schindlers, however, did not raise this as a specific legal issue on appeal, except to argue that the denial of the motion evinced an alleged partiality on the part of the trial judge. Even if this issue had been raised and argued, we would not reverse. The guardianship court did not err by refusing to stay this matter to allow the parents to investigate allegations irrelevant to the specific issue presented to it and resolved by its order. Similarly, the Schindlers argue in their brief that the assets of Mrs. Schiavo’s guardianship estate have been wasted. This was not a subject of the hearing below. There is no order on appeal to which these arguments are relevant. The outcome of this appeal has no bearing on any claims as to the handling of the financial aspects of the guardianship estate.


author: PER CURIAM.'

text:
    Leon MONDESIR, Appellant, v. Pierre DELVA, Appellee.
    No. 3D02-1560.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Rehearing and Certification Denied July 30, 2003.

      David H. Freedman, Miami, for appellant.
    Oscar Syger, Miami, for appellee.
    Before GREEN and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.'

Leon Mondesir appeals the entry of final judgment in favor of appellee Pierre Del-va. We affirm.

In 1993, Delva established One Stop Mini Market in Miami-Dade County, Florida, designed to sell a variety of products. Mondesir, as well as Jose Rojas, are licensed insurance agents. On or about September, 1994, Delva procured Monde-sir to provide a liability policy for his business for protection against damage from fire and flood. Aires Insurance Company, through Salem Discount Insurance Agency, issued Mondesir a general liability policy for $300,000.00 on October 25, 1994. The policy excluded coverage for property damage.

On November 19, 1994, a fire occurred at Delva’s business which destroyed inventory, stock, and business records. Delva prepared a detailed inventory list of the business contents at the time of the fire. He estimated that the total price of the' items destroyed was $140,088.72 and the value of the equipment loss was $28,570.00. He thereafter filed his claim for loss with Salem. Salem subsequently informed Del-va that the loss sustained by the business was not a covered loss within the meaning of the policy.

On June 15, 1998, Delva sued Aires for professional negligence and breach of contract, and sued Salem, Mondesir, and Rojas for professional negligence. He subsequently amended his complaint and alleged negligent procurement of the insurance policy as to all of the defendants and vicarious liability as to Aires.

At trial, Delva testified that he had requested that Mondesir procure $350,000.00 worth of insurance for the business contents and that Mondesir had told him that the insurance to cover his inventory and equipment had been obtained. Mondesir did not appear at trial. Delva also testified that his total loss was $140,088.72. At the close of the trial, the trial court granted Delva’s motion for judgment against Mondesir and Salem on the issue of liability. The trial court then granted Delva’s motion for default against Mondesir and Salem, and also granted Aires’ motion for directed verdict as to Delva’s failure to prove damages.

The jury subsequently returned a verdict in Delva’s favor and awarded him $140,882.72 in damages. On the issue of damages, the jury found that Salem was responsible for 75% of the damages and Mondesir was responsible for 25%. The trial court entered judgment in Delva’s favor against Mondesir and Salem in the sum of $244,839.00 holding each responsible for 100% of the damages.

The measure of damages in a negligent procurement of insurance case is what would have been covered had the insurance been properly obtained. See Capell v. Gamble, 733 So.2d 534 (Fla. 1st DCA 1998). In Capell, the homeowners sued their insurance agent for failure to advise of the need for flood insurance and for negligent failure to procure flood insurance. At trial, the homeowners did not present any evidence whatsoever as to what would have been covered under the flood insurance policy nor did the homeowners attempt to show what type of policy the agent would have obtained on their behalf. The trial court accordingly entered judgment in favor of the insurance agent finding that the homeowners failed to prove the element of damages.

We find in this case, however, that the insured proved his measure of damages. At trial, Delva submitted a copy of a certificate of insurance issued by Salem which indicates that the fire damage incurred was included in the $300,000 general liability policy. Delva introduced an inventory list that he prepared after the fire which reflected the loss of fixtures, as well as merchandise. The value of these damages was also uncontradicted. Delva further testified that Mondesir assured him that he had received the desired coverage. There is thus evidence from which a jury could determine Delva’s damages.

Mondesir cannot now rely on any of the defenses available to co-defendant Aires at trial in order to defend his interests because he failed to appear at trial and present the merits of his own defense. See Behar v. Jefferson Nat’l Bank at Sunny Isles, 519 So.2d 641, 643 (Fla. 3d DCA 1987)(“The fact that other defendants may prevail on the merits does not render the default against [another defendant] unjust.”).

We therefore find that the trial court properly entered final judgment based upon the jury’s verdict.


author: PER CURIAM.

text:
    Olga PAEZ, Appellant, v. CITY OF CORAL GABLES, etc., Appellee.
    No. 3D02-1253.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.
    Rehearing and Certification of Question Denied July 30, 2003.

      Paul Morris; Robert A. Rosenblatt, Miami, for appellant.
    Adorno & Yoss, P.A., and John Arrastia Jr., Miami; Katherine Fernandez Rundle, State Attorney, and David Macey, Assistant State Attorney, for appellee.
    Before GODERICH, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

The appellant, Olga Paez, appeals from a Final Judgment of Forfeiture in which the trial court found that she lacked standing to challenge or participate in the forfeiture action. Because the appellant signed an affidavit stating that she did not have any legal interest in the seized funds, the trial court properly found that the appellant lacked standing. See Gonzalez v. City of Homestead, 825 So.2d 1050, 1052 (Fla. 3d DCA 2002) (“To establish standing, a claimant as a general rule must show ownership, or an ownership interest, in the property which has been seized.”); Munoz v. City of Coral Gables, 695 So.2d 1283, 1286 (Fla. 3d DCA 1997) (“[T]o contest a forfeiture action, a party must first demonstrate an interest in the seized property sufficient to satisfy the court of the party’s standing as a claimant.”); but see City of Fort Lauderdale v. Baruch, 718 So.2d 843 (Fla. 4th DCA 1998). Therefore, the order under review is affirmed.

Affirmed.


author: STONE, J.

text:
    Carol M. ROSENBLOOM, Appellant, v. Michael ROSENBLOOM, Appellee.
    Nos. 4D02-1918, 4D02-2399.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    Rehearing Denied Aug. 19, 2003.
    James Fox Miller of Miller, Schwartz & Miller, P.A., Hollywood, for appellant.

      August La Rocco and Tracy B. New-mark of Fixel & La Rocco, Hollywood, for appellee.
   STONE, J.

This is an appeal of a final judgment of dissolution in which multiple issues are raised. Having reviewed the record, we reverse only as to the issue of equitable distribution; in all other respects, we affirm. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

As to the equitable distribution, the record does not support the trial court’s decision that the former wife must reimburse the former husband $423,777 for a portion of the parties’ stock market losses that were incurred in her management of the parties’ marital assets. We recognize that there is evidence that the former wife failed to advise the former husband of the extent of the stock losses being incurred during 2000-2002 and that there was a substantial increase in her trading activity as the market fell. The ultimate percentage of the loss that was charged to the former wife as waste is based on testimony and extrapolations by the former husband’s accountant arriving at “excess” losses that exceeded an average decline in the major stock indexes during the same period. However, drawing an inference of intentional dissipation and waste of marital assets from the confluence of events appearing on this record is essentially speculative and is based on assumptions that are not sufficiently supported by the record.

It is obvious that the former wife’s investment practices and her conduct was troubling to the court; however, given the history of the parties’ mutual treatment of their financial and investment affairs, in which the former husband left all such matters in the former wife’s hands, there is an insufficient basis for an unequal distribution of assets. The former husband, who would have shared in any profits, must share equally in the losses, notwithstanding that the former wife’s investment conduct may well have been imprudent. See § 61.075(1)®, Fla. Stat. (2001); Gentile v. Gentile, 565 So.2d 820, 823 (Fla. 4th DCA 1990)(holding that husband’s imprudent investments which lost their value in 1987 stock market crash not adequate justification for inequitable distribution of marital assets). We also conclude that the amount arrived at is speculative.

Further, although we affirm the court’s denial of leave for the former wife to relocate to another state with the parties’ eight year old child, the expert testimony, relied upon by the court, indicates that the issue should be reviewed again after the parties have completed counseling.

Therefore, we reverse and remand for modification of the final judgment as to the equitable distribution. In all other respects, we affirm, without prejudice to the former wife again seeking leave to relocate following counseling.

GUNTHER and FARMER, JJ., concur.


author: KLEIN, J.

text:
    9863 WEST ATLANTIC AVENUE, INC., a Florida corporation, et al., Appellants, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 4D02-2021.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.

      J. Christy Wilson, III of Wilson, Leavitt & Small, P.A., Orlando, and Edna L. Caruso of Caruso, Burlington, Bohn & Compia-ni, P.A., West Palm Beach, for appellants.
    Pamela S. Leslie, General Counsel, and Marianne A. Trussell, Deputy General Counsel, Tallahassee, for appellee.
   KLEIN, J.

The DOT, in this eminent domain case, took property which included the entire building in which a store was operated. On the remainder not taken there was a well which supplied water to the business. The property owner argues that it is entitled to business damages because, as a result of the well being left on the remainder, it was only a partial taking of the business. We disagree.

The business was a convenience store, and all of the building, which was where all of the business was transacted, was taken. The property owner contends that this was only a partial taking of the business, because the well supplying water to the business, located about 100 feet away, was the remainder. The property owner emphasizes, although we do not think it is significant, that the county ordinances required the store to have a supply of water, which necessitated the well, and that the well had to be located away from the store so that it was not too close to the septic tank.

Section 73.071(3)(b), Florida Statutes (1997), provided:

Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking, including, when the action is by the Department of Transportation, county, municipality, board, district or other public body for the condemnation of a right-of-way, and the effect of the taking of the property involved may damage or destroy an established business of more than 5 years’ standing, owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party, the probable damages to such business which the denial of the use of the property so taken may reasonably cause; any person claiming the right to recover such special damages shall set forth in his or her -written defenses the nature and extent of such damages. (Emphasis added.)

This statute is strictly construed in favor of the DOT. Tampa-Hillsborough County Expressway Auth. v. K.E. Morris Alignment Serv., Inc., 444 So.2d 926 (Fla.1983).

This case is controlled by Palm Beach County v. Awadallah, 538 So.2d 142, 144 (Fla. 4th DCA 1989), in which the entire building containing a country store was taken, but storage buildings were on the remainder. Because there was no evidence that the business of the country store was ever “solicited, excepted or conducted” from the storage buildings, we reversed the award for business damages. See also, State, Dep’t of Transp. v. Standard Oil Co., 510 So.2d 324, 326-27 (Fla. 2d DCA 1987)(to recover business damages, business must be “solicited, accepted, or conducted” on remainder).

The cases relied on by the property owner are distinguishable. In Young v. Hillsborough County, 215 So.2d 300 (Fla.1968), the entire building in which the business was operated was not taken, but rather the taking resulted only in the loss of a portion of the building.

Night Flight, Inc. v. Tampa-Hillsborough County Expressway Authority ex rel. State DOT, 702 So.2d 538 (Fla. 2d DCA 1997), is also distinguishable because, although the entire building was taken, there was evidence that business was also being conducted through activities which were operated on the remaining parking lot. One Stop 76, Inc. v. DOT, 762 So.2d 962 (Fla. 4th DCA 2000), is also distinguishable because there was evidence of business activity on the remaining portion.

In the present case there was no evidence of business activity on the remainder, and we therefore affirm the summary judgment.

The property owner also argues that the trial court erred in awarding fees for only one of its two appraisers. These appraisers evaluated the property which was taken, not the business damage claim, and they were $100,000 apart. The trial court ruled that the property owner could only put on one of the appraisers because the testimony would be duplicative.

The trial court refused to award fees for the appraiser who did not testify, pointing out that the property owner put on no evidence as to why there was a need for a second appraisal or how the second appraisal contributed to the result obtained by the property owner. The property owner argues that there is no per se rule against having two appraisers, and we agree. On the other hand, the property owner cites no authority requiring that fees be awarded for both appraisers, where only one is permitted to testify. Our standard of review on this issue is abuse of discretion, Plante v. Canal Authority, 218 So.2d 243 (Fla. 1st DCA 1969). We find no abuse here.

Affirmed.

SHAHOOD and HAZOURI, JJ., concur.


text:
    Julio MORA, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D03-0883.
    District Court of Appeal of Florida, First District.
    June 18, 2003.
    Rehearing Denied Aug. 5, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General, and Louis A. Vargas, General Counsel, Department of Corrections, Tallahassee, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s motion for rehearing, rehearing en banc, and motion to declare the issue of extreme importance, which the Court treats as a response to its order of April 9, 2003, the Court has determined that it lacks jurisdiction to review the decision of the Department of Corrections. See § 120.81(3)(a), Fla. Stat. (2001); see also Sheley v. Florida Parole Comm’n, 703 So.2d 1202,1205 (Fla. 1st DCA 1997); Sheley v. Florida Parole Comm’n, 720 So.2d 216, 217 (Fla.1998). Accordingly, the appeal is hereby dismissed.

ERVIN, KAHN and HAWKES, JJ., concur.


text:
    Samuel RICHARDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3110.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.
    Rehearing, Clarification and Certification Denied Aug. 1, 2003.
    John H. Lipinski, Hollywood, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Ozell v. State, 837 So.2d 559 (Fla. 3d DCA 2003).


text:
    NORTH DADE CHURCH OF GOD, INC., Appellant, v. JM STATEWIDE, INC. and JEC & CM, Inc., Appellees.
    No. 3D02-1916.
    District Court of Appeal of Florida, Third District.
    June 18, 2003.
    Rehearing and Clarification Denied Aug. 6, 2003.

      Rones & Navarro and Victor Rones, for appellant.
    Rafferty, Gutierrez, Sanchez-Aballi, Stolzenberg & Gelles and Nicolas Gutierrez, for appellees.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

The North Dade Church of God, Inc. appeals a final judgment in a mortgage foreclosure case. We affirm in part and reverse in part.

In 1994 the Church borrowed $20,000 from JM Statewide, Inc. This was a five-year balloon loan at 8% interest. No payments were required until the maturity date. On maturity, the Church was to repay the $20,000 plus $8,000 in accrued interest, for a total of $28,000.

The Church did not pay the mortgage when due. JM had in the meantime assigned the loan to JEC & CM, Inc., which sought foreclosure.

The parties entered into a settlement stipulation whereby the Church was allowed time to refinance. The Church was allowed to reserve its defenses to the foreclosure, and approximately $13,000 was escrowed pending resolution of disputes between the parties on the interest and attorney’s fees owed.

The trial court ruled in favor of the lender on the amount of interest owed. The court made a determination of the amount of attorney’s fees the Church must pay on account of the foreclosure action. The Church has appealed.'

The trial court rejected the Church’s usury defense. We entirely agree.

The mortgage note provided, “While in default, and after maturity, this note shall bear interest at the highest legal rate permitted by Florida law from the date of the default or from the date of maturity....” The lender calculated interest at the highest legal rate on the entire overdue balance of $28,000. The Church argued that this made the loan usurious, because interest was being charged on accrued interest. The Church is incorrect.

“A provision in a promissory note calling for the payment of interest on deferred or past-due interest does not make the note usurious, because computing interest upon interest supplies the place of prompt payment and indemnifies the creditor for his or her forbearance.” 82 Fla. Jur.2d Interest and Usury § 73 (2003) (footnote omitted) (citing Morgan v. Mortgage Discount Co., 100 Fla. 124, 129 So. 589 (1930)). Thus, the interest calculation in this case was within legal limits and was not usurious. We also agree with the trial court in rejecting the Church’s equitable defenses to the claim for interest and attorney’s fees.

We do, however, conclude that the attorney’s fee award must be reduced. As a preliminary matter, under the parties’ stipulation, the Church paid an initial $4,000 for attorney’s fees and another $11,000 was escrowed for the additional attorney’s fees and costs claimed by JM and JEC & CM. We agree with the Church that under the wording of the stipulation, the attorney’s fee and cost award cannot exceed these amounts, i.e. a total of $15,000.

Having reviewed the record, we are of the view that the $17,000 amount awarded is excessive. This was a $28,000 mortgage foreclosure in which there was an early settlement, minimal active litigation, and repayment through a refinancing with another lender.

It appears that a certain amount of the attorney’s fee award included time spent litigating the amount of attorney’s fees that the lender and assignee were claiming. It is settled that in litigating over attorney’ fees, a litigant may claim fees where entitlement is the issue, but may not claim attorney’s fees incurred in litigating the amount of attorney’s fees. State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 832-33 (Fla.1993); Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720, 723-24 (Fla. 5th DCA 1999); Oruga Corp., Inc. v. AT & T Wireless of Florida, Inc., 712 So.2d 1141, 1145 (Fla. 3d DCA 1998); Dept. of Trans. v. Winter Park Golf Club, Inc., 687 So.2d 970, 971 (Fla. 5th DCA 1997). On remand, the court must delete time attributable to litigating the amount of attorney’s fees claimed.

Attorney’s fees should also not be awarded for an issue on which the moving party was unsuccessful. Here it appears that the lender and assignee attempted to assert a theory of priority over the first mortgage in the case, which was abandoned in the settlement. Attorney’s fees should be deleted which relate to that issue.

The time sheets also reflect a significant amount of time spent in conferences between the partner and the associate who were working on the case as well as multiple attorneys performing or reviewing the same items. Duplicative time charged by multiple attorneys working on the case are generally not compensable. Likewise noncompensable is excessive time spent on simple ministerial tasks such as reviewing documents or filing notices of appearance. Haines v. Sophia, 711 So.2d 209, 212 (Fla. 4th DCA 1998); Brevard County v. Canaveral Properties, Inc., 696 So.2d 1244, 1245 (Fla. 5th DCA 1997); Ziontz v. Ocean Trail Unit Owners Ass’n Inc., 663 So.2d 1334, 1335-36 (Fla. 4th DCA 1993).

We remand the case for a reduction of the attorney’s fee in accordance with the views expressed here. Fees are awarda-ble only for hours reasonably expended, and noncompensable time must be excluded. Miller v. First American Bank & Trust, 607 So.2d 483, 484-85 (Fla. 4th DCA 1992); Ziontz, 663 So.2d at 1336.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      . The trial court should make the lodestar findings contemplated by Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828, 834 (Fla.1990). We do not fault the trial court for the absence of such findings after the hearing below because no one requested such findings.

      . The Church's final argument, regarding its related claim against JM over a roofing repair, is not ripe for us to express an opinion on.


author: MONACO, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. Belinda CARTER and Ben Green, Appellees.
    Nos. 5D02-2790, 5D02-2791.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.
    Rehearing Denied Aug. 6, 2003.
    Charles D. Peters, Orlando, for Appellant.
    Sean G. Anderson,' Merritt Island, for Appellee Ben Green.
    Shari J. Wilson of Shari J. Wilson, P.A., Melbourne, for Appellee Belinda Carter.
   MONACO, J.

The Department of Children and Families (“DCF”), appeals an award of attorneys’ fees in this dependency action for each of the appellees pursuant to section 57.105, Florida Statutes (2001). We hold that attorneys’ fees for the appellees, Belinda Carter and Ben Green, were properly awarded.

Ms. Carter and Mr. Green are the parents of a child who was the subject of a dependency action filed by DCF. We see nothing to be gained in detailing the allegations of the dependency petition, other than to say that DCF admitted in its brief that it did not prove abuse and abandonment at trial, although both were alleged in the verified petition for dependency, and we have concluded that an award of section 57.105 attorneys’ fees by the trial court was justified. DCF argues, however, that section 57.105 does not apply to dependency actions, and that the trial court erred in assessing attorneys’ fees against it. We disagree.

DCF correctly points out that section 57.105 is designed to discourage “baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities.” See Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501, 505 (Fla.1982). Indeed, section 57.105 specifically references its applicability to “a civil proceeding or action.” From this foundation DCF argues that dependency actions are “quasi-criminal” in nature, and that as these proceedings have similarities to criminal trials, section 57.105 should not apply to them. Among the similarities listed by DCF are that dependency cases involve state action, are highly compulsory, and involve some important “liberty interests.” DCF argues further that termination of parental rights proceedings also require a showing of clear and convincing evidence, which is a higher burden than the preponderance of evidence standard used in most civil cases. We note, in passing, that the present case is based on a petition for dependency, not one for termination of parental rights, and that the burden of proof in adjudicatory hearings in such cases is a preponderance of evidence. See § 39.507(l)(b), Florida Statutes (2001); M.J.S. v. Florida Dept. of Children and Family Serv., 764 So.2d 825 (Fla. 2d DCA 2000).

More importantly, recent developments in the case law surrounding the appellate handling of parental rights termination cases convince us that dependency proceedings are not criminal in nature. The Supreme Court in N.S.H. v. Florida Dept. of Children and Family Serv., 843 So.2d 898 (Fla.2003), held that Anders procedures do not apply to appeals from termination of parental rights cases. Referring with approval to the case of Ostrum v. Department of Health & Rehabilitative Services, 663 So.2d 1359 (Fla. 4th DCA 1995), the Court said:

Although we do not minimize the significant interests at stake in parental rights termination proceedings, the essential difference between termination proceedings and both criminal proceedings and civil commitment proceedings is that termination proceedings do not involve the risk of loss of physical liberty. Further, there are two interests that must be weighed in a termination proceeding: that of the parent and that of the child. The Fourth District recognized both of these distinguishing factors in Ostrum when it noted that termination of parental rights “cases are not criminal in nature. They are civil proceedings which happen to affect the substantial interests of the parents and children involved.” 663 So.2d at 1361.

Dependency proceedings likewise do not involve the risk of loss of physical liberty. Moreover, it seems intuitively clear that proceedings for the termination of parental rights are substantially more intrusive than dependency actions. If terminations are civil, then dependencies are civil, as well. Accordingly, we conclude that section 57.105 applies to dependency proceedings. Cf. Department of Children & Families v. M.G., 838 So.2d 703 (Fla. 5th DCA 2003); Department of Health and Rehab. Services v. Crossdale, 585 So.2d 481 (Fla. 4th DCA 1991).

We have considered the other issues raised by DCF and find them to be without merit.

AFFIRMED.

PETERSON and ORFINGER, JJ., concur.

      . We note, as well, that proceedings under the Jimmy Ryce Act, sections 394.910, et seq., Florida Statutes (2002), for the involuntary commitment of persons found to be sexually violent predators, are deemed to be civil proceedings, rather than criminal proceedings, even though the liberty interests of the respondent are clearly implicated, and even though the burden of proof required for commitment is clear and convincing. See Westerheide vf. State, 831 So.2d 93 (Fla.2002).

      . DCF contended during the oral argument of this appeal that the attorneys representing Ms. Carter and Mr. Green are being double compensated for their services. Apparently, the attorneys for Ms. Carter and Mr. Green provided legal services to them pursuant to an annual contract with Brevard County to represent qualifying persons in dependency actions. Each attorney is paid on an annual basis for these labors. The orders awarding attorney’s fees require DCF to make payment under section 57.105 directly to each of the attorneys involved. Brevard County was not involved in the fee assessment process. We are confident that the attorneys for the appel-lees will bring the fact of the fee awarded to each in this case to the attention of Brevard County so that an appropriate disposition of the funds can be made.


text:
    David F. BRAUN, Appellant/Crossappellee, v. BUYERS CHOICE MORTGAGE CORPORATION, by and through Matthew McALOON, a shareholder; Matthew McAloon, Individually; and McAloon Mortgage Company, Inc., Appellees/Cross-appellants. Michael Warnstedt and Buyers Choice Mortgage Corporation, Appellees.
    No. 4D01-2516.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Rehearing Denied Aug. 19, 2003.

      Harris K. Solomon and Jonathan M. Streisfeld of Brinkley, McNerney, Morgan, Solomon & Tatum, LLP, Fort Lauderdale, for appellant/cross-appellee.
    Robert Cooper of Robert H. Cooper, P.A., Aventura, for appellees/cross-appel-lants.
   STONE, J.

We reverse a final judgment entered against David Braun in favor of Matthew McAloon, individually, and as a shareholder of McAloon Mortgage Co., Inc. We also reverse the final judgment insofar as it dismissed claims brought on behalf of Buyers Choice Mortgage Corporation (“Buyers Choice”) by McAloon in his capacity as shareholder.

David Braun, together with Michael Warnstedt, who is not a party to this appeal, were joint shareholders of a real estate corporation called Braun and May Realty, Inc. (Braun & May). Braun & May purchased Buyers Choice, a mortgage brokerage business. Buyers Choice was wholly owned by Braun & May until February 1, 1996, when McAloon issued a check from his personal account to Buyers Choice for $25,000 in exchange for 40% ownership of the corporation.

It was anticipated that Braun & May would offer to its 190 sales agents the opportunity to become employees of Buyers Choice, and that Braun and Warnstedt would serve as directors while McAloon would serve as president.

Shortly after McAloon became the president, Braun issued a check from Buyers Choice’s account for $25,000 to Braun & May. McAloon knew that the money had been withdrawn and continued to operate Buyers Choice. He even withdrew money from a McAloon Mortgage account to loan Buyers Choice funds to pay the salaries of Buyers Choice employees and cover other expenses. Although Braun knew McAloon was funding the operations at Buyers Choice, he did not reimburse McAloon or McAloon Mortgage for any of these expenses.

On September 1, 1996, the Buyers Choice mortgage lending license expired. On or about November 1, 1996, Braun sold the assets of Braun & May to Gimelstob Realty, Inc. for $1,575,000. This came as a surprise to McAloon who learned about the deal while perusing the “Broward Review.” McAloon filed suit against Braun and Warnstedt, individually, and as directors of Buyers Choice. McAloon Mortgage and Buyers Choice were also named as plaintiffs. In his six-count second amended complaint, McAloon alleged variations of common law breach of fiduciary and directors’ duty and breach of statutory directors’ duty by the defendants.

Counts I and II were brought on behalf of Buyers Choice for general damages, alleging that the defendants had breached their fiduciary and statutory obligations by permitting Gimelstob Realty to acquire Braun & May’s assets, thereby defeating the purpose of Buyers Choice and causing it to cease operations.

Counts III and IV were brought by McAloon, individually, and alleged that the defendants had breached their fiduciary and statutory obligations to McAloon by permitting Gimelstob Realty to acquire Braun & May. In these counts, McAloon specifically requested damages in the amount of $25,000. At the non-jury trial, McAloon acknowledged that there was no provision in his written agreements with Braun & May which restricted the transfer of Braun & May stock.

Counts V and VI were brought on behalf of McAloon Mortgage as a creditor of Buyers Choice and alleged that the defendants’ actions constituted wilful mismanagement resulting in Buyers Choice’s insolvency.

While the suit was pending, Buyers Choice was administratively dissolved on September 26, 1997, for failure to file its annual report. Because Buyers Choice had been administratively dissolved, the court dismissed with prejudice counts I and II of the second amended complaint involving derivative claims.

After disposing of counts I and II, the court announced that the only real remaining issue was whether McAloon or McA-loon Mortgage should be reimbursed for any expenses as a result of a breach of fiduciary duty. It explained that damages for the breach were going to be “pretty much capped to $25,000” and neither attorney indicated any objection.

The parties did not agree as to the intended purpose of the $25,000 payment. According to Braun, the money was intended to compensate Braun & May; McAloon claimed it was intended as capital for Buyers Choice. After reading the stock purchase agreement which designated Buyers Choice and not Braun & May as the seller, the court found that “[t]he greater weight of the evidence goes to Mr. McAloon on this issue and the court finds that Braun and May had no right to withdraw the $25,000.” The court deemed Braun’s withdrawal a breach of his fiduciary duty to McAloon. It was on this basis alone that the court entered a judgment in favor of McAloon and McAloon Mortgage. The court chalked the other expenses up to poor investment, and Braun was ordered to pay the appellees $25,000 plus interest.

Braun claims the court erred in entering judgment in favor of Appellees with respect to claims III through VI. We agree. We also agree with Appellees that the court erred in dismissing its derivative claims in counts I and II.

Initially, as to counts V and VI, the trial court’s entry of judgment in favor of McAloon Mortgage was error. Braun did not owe a fiduciary duty to McAloon Mortgage at the time of the withdrawal. Directors of a corporation are generally not personally liable to creditors for breach of fiduciary relationship, nor are they liable for mismanagement or waste of assets. Skinner v. Hulsey, 103 Fla. 713, 138 So. 769 (1931). We note that there is no claim of fraud in the instant case.

With respect to the remaining counts, III and IV, the court found that Braun had breached his fiduciary duty to McAloon by withdrawing the $25,000 from Buyers Choice and McAloon was entitled to have his investment back. In contrast to the trial court’s reasoning, McAloon had argued at trial that Braun’s wrongful withdrawal of the money caused Buyers Choice to lose its license and become administratively dissolved. This argument differs from the theory of liability asserted in the second amended complaint, that the downfall of Buyers Choice was caused by Braun’s sale of Braun & May’s assets. In fact, the trial court even dismissed this allegation when it said, “I don’t think that you can say but for the [$25,000] withdrawal which took place in February of 1996, that that [sic] then caused some seven months later, the failure of Buyers Choice to renew it’s [sic] license.” Therefore, it appears the court was not linking the withdrawal to the sale of Braun & May’s assets, as Appellees did in their complaint.

We reject McAloon’s contention that the issue was tried by consent. “[A]n unpled theory may not be tried by implied consent when the evidence presented at trial is relevant to other issues which are properly being tried.” Schipani v. Seagraves, Inc., 772 So.2d 591, 593 (Fla. 5th DCA 2000); Cedars Med. Ctr., Inc. v. Ravelo, 738 So.2d 362, 368 (Fla. 3d DCA 1999). The record reflects that neither the court nor the parties are clear on what the issue was, despite the court’s attempts to clarify and narrow the issues. Although the parties share responsibility for the confusion as to the precise issues before the court, it does not appear from the record that the issue ruled on was tried by consent.

Further, counts III and IV should have been filed as shareholder derivative claims. Generally, a shareholder cannot sue in the shareholder’s name for injuries to a corporation unless there is a special duty between the wrongdoer and the shareholder, and the shareholder has suffered an injury separate and distinct from that suffered by other shareholders. E.g., Fort Pierce Corp. v. Ivey, 671 So.2d 206, 207 (Fla. 4th DCA 1996); Harrington v. Batchelor, 781 So.2d 1133, 1135 (Fla. 3d DCA 2001).

Appellees argue that the shareholder agreement provides a direct fiduciary obligation from Braun and Braun & May to McAloon because Braun was the legal representative of Braun & May and was, thus, bound by the terms of the agreement. Even if this were true, Braun did not breach the particular fiduciary duty in question. The terms of the parties’ agreement prohibited either party from profiting to the detriment of the other by appropriating a “commercial opportunity which becomes available to him by reason of his association with [Buyers Choice].” This agreement was not breached, here, as there is no evidence that the deal with Gimelstob Realty had anything to do with Braun & May’s status as a stockholder of Buyers Choice.

Additionally, the injury to McAloon was not separate and distinct from that suffered by the other shareholder — Braun & May. “It is the body of the complaint which determines whether the injury is direct as to the stockholder and the cause of action individual to him or is indirect as to the stockholder and the cause of action derivative from the corporation.” Alario v. Miller, 354 So.2d 925, 926 (Fla. 2d DCA 1978). Here, McAloon alleged that Braun & May’s sale to Gimelstob essentially caused Buyers Choice to go out of business. The fact that he may have lost the value of his investment because Buyers Choice went out of business is, at best, an indirect injury to McAloon. The direct injury of lost opportunities is to Buyers Choice and equally affects both shareholders. Cf. Salit v. Ruden, McClosky, Smith, Schuster & Russel, P.A., 742 So.2d 381, 389 (Fla. 4th DCA 1999)(holding that claim was not derivative because it did not derive from duty or obligation owed to corporation).

As to Appellees’ cross-appeal, we also reverse. The trial court dismissed counts I and II, brought on behalf of Buyers Choice, because it had been administratively dissolved for failing to file annual reports as required by section 607.1622(8), Florida Statutes (1999). In doing so, the trial court relied on this court’s decision in Vacation Break of Boca Raton, Inc. v. Breeden, 765 So.2d 281 (Fla. 4th DCA 2000). This court, however, has recently receded from that opinion. See Nat’l Judgment Recovery Agency, Inc. v. Harris, 826 So.2d 1034 (Fla. 4th DCA 2002).

In Vacation Break, this court held that a corporation, which had been administratively dissolved for failure to comply with section 607.1622(8), could not defend a lawsuit until it complied with the requirements of that statute by filing an annual report and paying the fees and taxes that were due. However, in National Judgment, this court, en banc, receded from Vacation Break. See id. at 1034. Following the Fifth District’s holding in Cygnet Homes, Inc. v. Kaleny Ltd. of Fla., 681 So.2d 826 (Fla. 5th DCA 1996), we held that there is no distinction between administrative and voluntary dissolution; that in either case, the corporation continues its existence for purposes of winding up and liquidating its business and affairs and that dissolution does not prevent suits by or against the corporation in its corporate name. Nat’l Judgment, 826 So.2d at 1035. Thus, Buyers Choice is not precluded from bringing suit against Braun. Therefore, we reverse and remand for a new trial as to counts I and II of McAloon’s second amended complaint.

We have not addressed any error in the trial court’s premature resolution of disputed facts at the end of the plaintiffs’ case, as any such error was not preserved.

As to all other issues, we find no reversible error or abuse of discretion.

HAZOURI and MAY, JJ., concur.

      . The stock purchase agreement identifies Buyers Choice as "Seller” and McAloon as "Buyer.”


text:
    Cleveland GRANT, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D01-4303, 4D01-4360, 4D01-4391.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Rehearing Denied Aug. 22, 2003.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for Appellee.
   PER CURIAM.

Cleveland Grant (“Grant”) was charged with resisting arrest with violence, battery on a police officer, resisting arrest without violence, and possession of cannabis for a December 5, 1997 incident in Case 98-3015. In Case 99-7722, Grant was charged with possession of cocaine with intent to deliver and possession of cannabis for an April 27,1999 incident.

Grant pled nolo contendere to these charges. In Case 98-3015, Grant was sentenced based on a scoresheet including 14 points for a prior conviction for burglary of a dwelling stemming from a December 15, 1997 incident. The same 14 points were included in the sentencing scoresheet for Case 99-7722. Grant objected to the inclusion of the points for the burglary conviction in both cases because he was convicted and sentenced for that crime subsequent to the incidents in the cases for which he was being sentenced. The trial judge took no action in response to the objection, and sentenced Grant to concurrent 64.65 month prison sentences, with a mandatory minimum of five years due to Grant’s status as a Prison Releasee Reof-fender.

Florida Rule of Criminal Procedure 3.701(d)(5) defines prior record as “any past criminal conduct on the part of the offender, resulting in conviction, prior to the commission of the primary offense.” This definition has been construed to mean that only the past offense must occur before the primary offense, not the conviction on that offense (although there must be a conviction prior to sentencing on the primary offense). Thorp v. State, 555 So.2d 362, 363 (Fla.1990).

The State asserts that in any event, Grant’s sentences must be affirmed because he failed to provide adequate record evidence of the burglary offense and conviction, as was his responsibility under Florida Rule of Appellate Procedure 9.200(e). See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). However, the State also concedes error concerning Case 98-3015, because the incident in that case occurred approximately 10 days before the alleged date of the burglary offense. We accept this concession, and accordingly reverse and remand Grant’s sentence for proper recalculation, excluding points for the burglary conviction, in Case 98-3015. However, we agree that adequate record evidence of the burglary commission date was not presented in the record by Grant, and therefore, must affirm his sentence as to Case 99-7722 as per Applegate.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR CORRECTION OF SENTENCE.

GUNTHER, TAYLOR and HAZOURI, JJ., concur.


text:
    Mohamed L. SAHN, Marvet Abd El Nour, and Rocky Investments of FLorida, Inc., Appellants, v. Barry MANKES and Cecile Mankes, Appellees.
    No. 3D02-446.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    Rehearing Denied Aug. 6, 2003.
    Levey, Airan, Brownstein, Shevin, Friedman, Roen & Kelso, and John R. Kelso, Coral Gables, for appellants.
    Kramer, Green, Zuckerman, Greene & Buchsbaum, and Robert I. Buchsbaum (Hollywood), for appellees.
    Before SCHWARTZ, C.J., GERSTEN and GODERICH, JJ.
   PER CURIAM.

Affirmed. See Roseman v. Town Square Ass'n, 810 So.2d 516 (Fla. 4th DCA 2001); Amador v. Amador, 796 So.2d 1212 (Fla. 3d DCA 2001).


author: FLETCHER, Judge.

text:
    FLORIDA DEPT. OF CHILDREN AND FAMILY SERVICES, Petitioner, v. In the Interest of C.K., Respondent.
    No. 3D03-966.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    Rehearing Denied Aug. 6, 2003.
    Calianne P. Lantz, for Petitioner.
    M. Cristina Gonzalez; Nancy Schleifer, Miami, for Respondent.
    Bernard Perlmutter and Gerard F. Glynn (Orlando), Amici Curiae for Florida’s Children First! and University of Miami School of Law Children & Youth Law Clinic.
    Before LEVY, FLETCHER, and SHEVIN, JJ.
   FLETCHER, Judge.

The Florida Department of Children and Family Services [Department] seeks the issuance of a writ of prohibition directed to the trial court. The Department contends that the trial court is attempting to extend its dependency court jurisdiction over C.K. notwithstanding that C.K. has attained the age of 18. These attempts relate to the enforcement of orders relating to C.K. which were entered by the trial court prior to C.K.’s becoming 18 years old. With a great deal of concern for the future of C.K., we nonetheless must follow the law and direct the trial court to cease its efforts to exercise jurisdiction over C.K.

We withhold issuing the writ feeling assured that the trial court will comply herewith.

      . For a thorough analysis of the applicable law (and of concerns like ours) see L.Y. v. Department of Health & Rehab. Servs., 696 So.2d 430 (Fla. 4th DCA 1997).

      . N.L. v. Department of Children & Family Servs., 770 So.2d 220 (Fla. 3d DCA 2000); L.Y. v. Department of Health & Rehab. Servs., 696 So.2d 430 (Fla. 4th DCA 1997).