author: ERVIN, J.

text:
    ESTATE OF Robert BROWN, Through Shannon BROWN, Personal Representative, Appellant, v. W.A. WOODHAM, in his official capacity as Gadsden County Sheriff, Appellee.
    No. 1D02-2281.
    District Court of Appeal of Florida, First District.
    March 18, 2003.
    W. Dexter Douglass and Thomas P. Crapps of Douglass Law Firm, P.A., Tallahassee, for Appellant.
    John W. Jolly of Jolly, Peterson & Waters, P.A., Tallahassee, for Appellee.
   ERVIN, J.

This is an appeal from an order dismissing a complaint with prejudice due to the failure of appellant, the Estate of Robert Brown, to state a cause of action against appellee, W.A. Woodham, Sheriff of Gadsden County, Florida. The lower court ruled that the sheriff owed no statutory, general, or special duty of care to Brown. We cannot agree and therefore reverse the dismissal and remand the case for further proceedings.

The Estate alleged a breach of a duty of care owed to Robert Brown, who was murdered by the irate husband of the woman Brown was visiting at the time of the tragedy. The husband, William Stroba, had been confined to the custody of the sheriff as an inmate in the Gadsden County Jail as a result of several charges filed against him for committing domestic violence upon his estranged wife. During his one-week incarceration in jail, Stroba wrote several letters to his wife threatening her with numerous acts of violence, which the sheriffs office retained in Stro-ba’s file. Despite the lower court’s order on March 6, 2000, that no bond be given Stroba, the sheriff released him from custody on bond one week later, whereupon Stroba returned to his home where he found the victim in the company of his wife, and perpetrated the homicide.

In Count I of the complaint, the personal representative alleged Sheriff Wood-ham’s duty of care as follows:

22. The Gadsden County Sheriff had a duty to timely enter the circuit court’s order stating that William Stroba was to be held without bond.
23. The Gadsden County Sheriff had a duty to maintain and review all records .concerning William Stroba, including the graphic and threatening letters which William Stroba wrote to Michelle Stroba while he was in custody, in one file or database at the time of his release.
24. The Gadsden County Sheriff owed a special duty to Michelle Stroba, as a victim of domestic violence.
25. It is reasonably foreseeable that a victim of domestic violence, such as Michelle Stroba, would seek protection for herself and her family while under threat of physical violence and harm from William Stroba. The Gadsden County Sheriff owed a special duty to Michelle Stroba, as a victim of domestic violence, and to her reasonably foreseeable protector, Robert Brown.
26. The Gadsden County Sheriff had a duty not to release William Stroba.
27. The Gadsden County Sheriff breached its duty by releasing William Stroba on March 13, 2000.

The plaintiff alleged that the sheriffs negligent release of William Stroba was the proximate cause of Robert Brown’s death.

In defending the lower court’s action, the sheriff relies largely upon the following rule of law set out in Everton v. Willard, 468 So.2d 936, 938 (Fla.1985) (emphasis added), and pertinent cases following it, stating:

A law enforcement officer’s duty to protect the citizens is a general duty owed to the public as a whole. The victim of a criminal offense, which might have been prevented through reasonable law enforcement action, does not establish a common law duty of care to the individual citizen and resulting tort liability, absent a special duty to the victim.

In Everton, the plaintiff brought an action against the sheriff of Pinellas County, among others, seeking damages arising out of a death caused by an intoxicated motorist who had been released on citation rather than arrested by a deputy sheriff. The court emphasized that the decision whether to arrest is a basic discretionary governmental function that is immune from liability. Id. at 937.

The facts before us are different. The sheriffs decision at issue here does not involve whether he should have arrested Stroba. That action had already been taken. We are confronted only with whether the sheriffs act in releasing an inmate from custody in the face of an order commanding him not to do so subjected him to any potential liability to the victim’s estate. Without deciding whether the dismissed complaint sufficiently states a common-law duty owed by Sheriff Woodham to Brown, we are firmly convinced it alleges a statutory duty of care, and that such duty falls within the special-duty exception recognized in Everton.

The Restatement (Second) of Torts section 315 explains that there is no duty to control a third person to prevent him or her from harming another unless:

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.

The Restatement enumerates a number of situations that establish a special relation, including a custodian’s taking charge of persons known to be dangerous. The Restatement (Second) of Torts provides in section 319:

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

The comment to the above section explains that the duty described applies if the actor knows or should know from personal experience that a third person under his or her control has a tendency to act injuriously.

In our judgment, pertinent Florida statutes relating to the taking into custody of persons accused of domestic violence, when considered together, codify the special-duty exception mentioned in both Everton and the Restatement. For example, section 741.2902(1), Florida Statutes (2000), states that it is the responsibility of the trial court, in considering the release of an offender, to consider the safety of any person who might be endangered by the release. Subsection (1) provides:

It is the intent of the Legislature, with respect to domestic violence cases, that at the first appearance the court shall consider the safety of the victim, the victim’s children, and any other person who may be in danger if the defendant is released, and exercise caution in releasing defendants.

(Emphasis added.) The legislative intent is farther manifested in section 741.2901(3), Florida Statutes (2000) (emphasis added), providing:

When a defendant is arrested for an act of domestic violence, the defendant shall be held in custody until brought before the court for admittance to bail in accordance with chapter 903. In determining bail, the court shall consider the safety of the victim, the victim’s children, and any other person who may be in danger if the defendant is released.

The protection described in the above statutes is obviously not limited to family members who may happen to be victims of domestic violence, as appellee contends, but extends as well to persons who the sheriff knows or should have reason to know might be placed at risk upon an offender’s release from custody.

In the case at bar, the plaintiff alleged sufficient facts establishing a special duty, created' by statute, that Sheriff Woodham owed to Brown. The Estate alleged that the threatening letters Stroba wrote while in jail were retained by the Gadsden County Jail and were in Stroba’s file. In the letters, Stroba said he intended to kill his wife, that he wanted to accomplish his purpose as soon as he was released, and, more to the point, he made his intent clear to so act if he found her with another man. By retaining these letters in Stroba’s file instead of showing them to Michelle, the defendant’s wife, or informing her of their content, and then releasing Stroba and merely informing Michelle Stroba that her husband had been released, the sheriff deprived her of critical information that might have saved the victim’s life.

These pertinent facts distinguish the instant case from cases such as Everton and others, precluding the imposition of liability upon governmental entities when the duty owed to the injured persons in such cases was no different from that owed to the public in general. In view of the above statutes and the facts alleged, we conclude that a special duty of care was placed on the sheriff to prevent the misconduct of William Stroba toward Robert Brown, a person who the sheriff should have reasonably foreseen would be placed in danger if Stroba were released from custody without sufficient warning.

As previously stated, the lower court’s final order of dismissal decided only that Sheriff Woodham owed no duty to plaintiffs decedent. It did not reach the next step in the analysis required by Henderson v. Bowden, 737 So.2d 532, 537 (Fla.1999), and Trianon Park Condominium Ass’n v. City of Hialeah, 468 So.2d 912, 919 (Fla.1985), which is to determine whether the bar of sovereign immunity applied, i.e., whether the actions of the sheriff were discretionary or operational. Because the court did not address this issue, and there may be pertinent factual matters not before us that are necessary to resolve it, we do not reach it here. The order dismissing the complaint with prejudice is

REVERSED and the case is REMANDED for further proceedings.

WOLF and VAN NORTWICK, JJ., CONCUR.

      . See Vann v. Dep’t of Corrections, 662 So.2d 339 (Fla.1995); Mills v. Duggar, 601 So.2d 634 (Fla. 4th DCA 1992); Parker v. Murphy, 510 So.2d 990 (Fla. 1st DCA 1987).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Scott M. ANDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 2D02-478.
    District Court of Appeal of Florida, Second District.
    March 19, 2003.

      Scott M. Anderson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Scott M. Anderson has filed a petition for writ of certiorari seeking review of an order of the circuit court acting in its appellate capacity. The circuit court dismissed an appeal he had filed in that court, which sought review of a county court order dismissing, without prejudice, his motion for postconviction relief relating to a misdemeanor offense. Although the circuit court erred when it dismissed the appeal, we deny the petition.

When reviewing a decision of the circuit court acting in its appellate capacity, this court’s inquiry, under certiorari, is limited to determining whether the circuit court afforded procedural due process and whether it applied the correct law. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000).

The basis of the circuit court’s dismissal of Anderson’s appeal was that he had failed to file an appellate brief in the case as the court had directed. The circuit court failed to apply the correct law when it made this ruling because pursuant to Florida Rule of Appellate Procedure 9.141(b)(2)(C): “No briefs or oral argument shall be required” in an appeal from the summary denial of a postconviction motion. The circuit court acting in its appellate capacity should have reviewed the record to determine if the dismissal of the motion for postconviction relief was proper.

This court has reviewed the record from the circuit court including the order in the county court proceeding that dismissed the postconviction motion without prejudice. We conclude that the order dismissing the motion for postconviction relief without prejudice was affirmable on its merits. Accordingly, we decline to issue the writ of certiorari.

Petition for writ of certiorari is denied.

ALTENBERND, C.J., and SALCINES and STRINGER, JJ., concur.


text:
    SOUTHERN COATINGS, INC., Petitioner, v. The CITY OF TAMARAC, Mayor Joe Schrieber, Commissioner Karen Roberts, Commissioner Marc Sultanof, Commissioner Edward Portner and Commissioner Gertrude Mishkin, Respondents.
    No. 4D02-4710.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.

      Rosemary H. Hayes and Tina L. Cara-ballo of Hayes & Associates, Orlando for petitioner.
    Christine M. Duignan and E. Bruce Johnson of Johnson, Anselmo, Murdoch, Burke & George, P.A., Fort Lauderdale, for respondents.
   PER CURIAM.

We sua sponte withdraw our opinion issued February 5, 2003 and substitute the following.

Petitioner, Southern Coatings, Inc., the plaintiff below, seeks relief barring Bro-ward County Circuit Court Judge Leroy H. Moe from continuing to preside over a hearing set on defendants’ entitlement to and award of sanctions against petitioner’s attorney. Previously Judge Moe had granted petitioner’s motion for disqualification as to the case-in-chief. We grant the petition.

Florida Rule of Judicial Administration 2.160(f) provides in pertinent part that (“[i]f the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action ”) (emphasis added). It was improper for the trial court to retain jurisdiction, without the parties’ agreement, to prospectively hold a hearing as to one issue in the case after disqualifying himself as to the balance of the case. See CH2M Hill S.E., Inc. v. Pinellas County, 598 So.2d 85, 88 (Fla. 2d DCA 1992) (holding that where the trial court proceeded in the case for several days prior to denying motion for disqualification presented in midst of trial, the judge’s actions exceeded the proper scope of his inquiry, it was error for him to continue in the case, and a new trial was required); Airborne Cable Television, Inc. v. Storer Cable TV of Fla., Inc., 596 So.2d 117, 117-18 (Fla. 2d DCA 1992) (holding that the trial court should not have ruled on pending motion for attorney’s fees after defendant filed motion for disqualification, which was before judge had indicated how he would determine fee issue; the subsequent entry of fee order could not be deemed a ministerial act fulfilling earlier ruling); State ex rel. Cobb v. Bailey, 349 So.2d 849, 850 (Fla. 1st DCA 1977) (holding that trial court lacked authority to conduct contempt hearing nearly a month after recusing itself). Cf. Fischer v. Knuck, 497 So.2d 240 (Fla.1986) (holding trial court retained authority to reduce order to writing subsequent to filing of motion for disqualification, where matters were tried and orally ruled upon prior to filing of motion); Coastal Petroleum Co. v. Mobil Oil Corp., 378 So.2d 336, 337 (Fla. 1st DCA 1980) (holding that trial judge who had recused himself as to issues severed and not yet tried had the authority to enter final judgment on certain issues when he specifically reserved jurisdiction to rule on those matters previously tried).

The petition for writ of prohibition is granted and the motion in question should be heard instead by the successor judge who is handling the balance of the case.

FARMER, SHAHOOD and GROSS, JJ., concur.


text:
    David Wayne KELSO, Appellant, v. STATE of Florida, Appellee.
    No. 02-2562.
    District Court of Appeal of Florida, First District.
    March 21, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, David Wayne Kelso, appeals an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion, in which he raised one claim of newly discovered evidence and two claims of ineffective assistance of trial counsel. We affirm in part and reverse in part.

A jury found Appellant guilty of capital sexual battery and lewd or lascivious conduct for acts he committed on a ten-year-old girl in April of 1999. At trial, the jury essentially had to decide whether it believed the victim, who admitted that she had previously lied about adults inviting her to watch them have sexual intercourse, or Appellant, who admitted being alone with the victim for 15 minutes on the day in question but otherwise denied all of the allegations. The State argued that the jury should believe the victim, because there was no way that she could have known about the things she described unless Appellant actually did them to her. Furthermore, the State asserted that Appellant was less credible because he had a reason to he, while the victim had no incentive to lie.

We must accept Appellant’s sworn allegations as true, unless they are refuted conclusively by the record. See Peede v. State, 748 So.2d 253 (Fla.1999). According to Appellant, just a few weeks after he was sentenced, another man was arrested and charged with committing similar acts on the same victim. This man allegedly confessed and admitted that he had had an ongoing “relationship” with the victim, which included paying her money each week for her silence. Thus, according to Appellant, this evidence severely discredited the State’s arguments that: 1) the victim was an innocent child who used innocent language and was an otherwise normal girl except for the fact that she had been subject to one horrible, fifteen-minute attack by Appellant; 2) the only way that the victim could have known about the things she described is if Appellant actually did them; and 3) the victim had no incentive not to tell the truth. Had Appellant known of this ongoing relationship between the victim and another man, he could have presented evidence demonstrating that: 1) the victim’s portrayal of an innocent girl at trial lacked credibility, 2) perhaps the events did happen but the victim changed the name of the perpetrator, and 3) the victim was lying about the identity of the perpetrator in order to protect this other man or her source of income.

Recently, the Florida Supreme Court addressed the standard of review for claims of newly discovered evidence:

In Jones, this Court articulated a two-step inquiry for determining whether a defendant is entitled to relief for newly discovered evidence. First, the facts must have been unknown at the time of trial and be such that they could not have been known by the exercise of due diligence. The second prong, which this Court referred to as the “probability standard,” requires that “in order to provide relief, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.”
... As the Fourth District has correctly pointed out, there may be cases where the newly discovered evidence is “obviously immaterial” to the verdict. However, ordinarily an evidentiary hearing is required for the trial court to properly determine, in accordance with Jones, whether the newly discovered evidence is of “such nature that it would probably produce an acquittal on retrial.” In making this determination, “the judge will necessarily have to evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial,” so that the appellate court can “fully evaluate the quality of the evidence which demonstrably meets the definition of newly discovered evidence.”

McLin v. State, 827 So.2d 948, 956 (Fla.2002) (citing Jones v. State, 591 So.2d 911 (Fla.1991)) (citations omitted).

In this case, the fact that another man would be arrested, charged, convicted, and sentenced all subsequent to Appellant’s conviction and sentencing could not have been known at the time of trial. Thus, the first prong of the test is satisfied. As for the second prong, the evidence presented by Appellant is not “obviously immaterial.” Thus, the trial court should have conducted an evidentiary hearing.

As for the ineffective assistance of counsel claims, we find them both to be without merit. In the first claim, Appellant alleged that defense counsel should have called the 19-year-old man to whom the victim first reported her allegations against Appellant, because his account of what the victim said differed from the victim’s trial testimony. Not only did she use explicit terminology in her description, but she also described familiarity with more acts than just those that she accused Appellant of committing at trial.

We find that Appellant has not demonstrated that he was prejudiced by counsel’s failure to call this witness to testify. It is only in light of the newly discovered evidence that it appears that counsel’s performance was deficient or that Appellant was prejudiced by the decision. At the time of the trial, defense counsel had no basis for arguing that someone other than Appellant committed the acts, so there was no reason to present even more evidence of the bad acts that Appellant allegedly committed. It is clear from the record that counsel investigated this other witness and specifically used the State’s failure to call him in its case-in-chief against it. Thus, even if Appellant were prejudiced by the failure to call this witness to testify, this is one of those few cases in which counsel’s trial strategy is apparent from the face of the record. Accordingly, we affirm the trial court’s denial of this claim. Finally, we affirm the trial court’s denial of Appellant’s second ineffective assistance claim without discussion.

AFFIRMED in part; REVERSED in part; and REMANDED for an evidentiary hearing.

ALLEN, C.J., BENTON and HAWKES, JJ., CONCUR.

      . The person to whom the victim first said anything was the 19-year-old younger brother of the man who was subsequently convicted, and, at the time she first told the story, she was trying to convince this younger brother to become her boyfriend. She told him that she had been with an older man, whom she said was Appellant, and that he had taught her how to do several things. Given her purpose in telling the story, there would be a lot of incentive to change the name of the "teacher” to someone other than the brother.


text:
    Veda Sherrill WIMBERLY, Appellant, v. Wayne T. WIMBERLY, Appellee.
    No. 1D02-1387.
    District Court of Appeal of Florida, First District.
    March 21, 2003.
    Russell S. Roberts of Roberts, Roberts & Roberts, Marianna, for Appellant.
    Nancy L. Jones of Faucheux & Jones, P.A., Panama City, for Appellee.
   PER CURIAM.

The appellant, Veda Sherrill Wimberly, timely appeals from a final judgment of dissolution of marriage. The appellant contends that the trial court erred in finding that the parties’ Jackson County residence was the nonmarital asset of the former husband. Because this was error, we reverse. We also find merit in the appellant’s argument that the trial court erred in not making findings to support the distribution of the remaining assets.

Prior to the marriage, the former husband’s family gave him the real property at issue. After the parties married, the former husband placed the former wife’s name on the deed. The trial court found that the property was nonmarital because it was given to him by his family before the marriage. This was error.

Real property held as tenants by the entireties is presumed to be a marital asset subject to equitable distribution. § 61.075(5)(a)5., Fla. Stat. (2000); Robertson v. Robertson, 593 So.2d 491, 494 (Fla.1991). The spouse who seeks a special equity in the property has the burden of overcoming the presumption by showing that no gift of an interest in the property to the other spouse was intended. Id. The entireties property in the present case was thus presumed to be a marital asset, and the former husband had the burden of overcoming the presumption. The trial court made no findings to this effect. Furthermore, the record contains no evidence to support a finding that the former husband satisfied his burden.

Additionally, it appears that the distribution of the remaining assets was unequal. The order lacks findings to support the distribution according to the enumerated statutory factors. § 61.075(3), Fla. Stat. (2000). On remand, the trial court must identify the remaining assets as marital or nonmarital, determine the values, and make findings of fact regarding the distribution as required by section 61.075(3), Florida Statutes (2000). See Green v. Green, 788 So.2d 1083, 1085 (Fla. 1st DCA 2001); Colley v. Colley, 745 So.2d 1125, 1125 (Fla. 1st DCA 1999); Prom v. Prom, 589 So.2d 1363, 1364 (Fla. 1st DCA 1991).

REVERSED and REMANDED.

BARFIELD, KAHN and PADOVANO, JJ., concur.


text:
    James A. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2371.
    District Court of Appeal of Florida, First District.
    March 21, 2003.
    Nancy Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we agree that no reversible error occurred. We affirm the appellant’s revocation of probation and imposition of judgment and sentence. However, because the record does not contain a written order of revocation of probation listing the conditions of probation violated, we remand for the trial court to enter such an order, consistent with its oral pronouncement. See Oliver v. State, 819 So.2d 816 (Fla. 1st DCA 2002). The trial court is also directed to correct the appellant’s written judgment and sentence order to reflect that the appellant’s conviction for burglary was a second-degree felony, not a first-degree felony.

AFFIRMED.

ALLEN, C.J., WEBSTER and BROWNING, JJ., concur.


author: BROWNING, J.

text:
    K.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1067.
    District Court of Appeal of Florida, First District.
    March 21, 2003.
    Nancy A. Daniels, Public Defender; and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Richard E. Doran, Attorney General; and Kenneth D. Pratt, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

This is the direct appeal from a conviction for trespass in a park afterhours. We hold that the trial court erred in failing to grant Appellant’s motion for judgment of acquittal because the state failed to put forth evidence of two of the elements of the crime. Accordingly, we reverse the conviction and sentence.

To overcome a motion for judgment of acquittal, the state must have put forth evidence of each element in each crime. The crime of trespass has four elements. The statute on trespass reads as follows:

A person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance: as to which notice against entering or remaining in is given, (1) ... by actual communication to the offender or by posting, fencing, or cultivation as described in s. 810.011 ... commits the offense of trespass on property other than a structure or conveyance.

§ 810.09(l)(a), Fla. Stat. (2001). Thus, the elements of the crime are (1) willful entering or remaining in property, (2) the property is not a structure or conveyance, (3) the person is not authorized, licensed, or invited, and (4) the person has notice against entering or remaining. In the instant appeal, the state did not put forth evidence sufficient to prove the first element, intent, or the last element, notice.

The state called the arresting officer, who testified as to the circumstances of the arrest. His testimony, however, did not touch on Appellant’s intent. There was simply no evidence that, when Appellant entered or remained in the park after hours as a passenger in a car, he did so willfully. Further, we find on this record insufficient evidence to demonstrate either that Appellant had actual notice or that the park was properly posted so as to give adequate constructive notice. See § 810.011(5)(a), Fla. Stat. (2001); In Interest of B.P., 610 So.2d 625 (Fla. 1st DCA 1992). Thus, the trial court should have granted the motion for judgment of acquittal.

REVERSED.

ERVIN and BOOTH, JJ., concur.


author: SHARP, W., J.

text:
    Cedric FRASILUS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1189.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for. Appellant.
   SHARP, W., J.

Frasilus appeals after he was placed on drug offender probation for three years, following entry of a guilty plea to possession of cocaine with intent to sell. He argues in this Anders appeal that the trial court erred in denying his motion to suppress evidence of drugs which were seen by the police in plain view through an open motel room door. We find no merit to this argument. He also raises a sentencing error, which we agree has merit.

At the sentencing hearing, the court withheld adjudication and placed Frasilus on drug offender probation. The trial court also imposed as a special condition of probation that his driving privileges were revoked for a period of two years. This special condition was not (based on the record before us) orally pronounced in court, but rather first appeared in the written judgment and sentence.

Frasilus filed an appeal and thereafter a timely motion pursuant to Florida Rule of Criminal Procedure 3.800(b), challenging the validity of the condition of probation which revoked his driving privileges. The trial court failed to rule on this claimed sentencing error within 60 days. Thus, it is deemed denied and is preserved for consideration on appeal. See Hart v. State, 773 So.2d 1263 (Fla. 1st DCA 2000); Kimbrough v. State, 766 So.2d 1255 (Fla. 5th DCA 2000).

Frasilus argues the special condition was improper as applied to him because section 322.055(1), Florida Statutes, requires a “conviction.” As noted above, Frasilus’ adjudication was withheld. In Raulerson v. State, 763 So.2d 285, 290 (Fla.2000), the court noted that the term “convicted” is “chameleon-like,” drawing its meaning from the particular statutory context in which it is used, quoting State v. Keirn, 720 So.2d 1085, 1086 (Fla. 4th DCA 1998). Not unexpectedly, appellate courts do not always agree with one another on the implication of the context for this “slippery” term.

We do not reach the merits of the issue as to whether section 322.055, Florida Statutes requires an adjudication of guilt to be applicable, because the imposition of this special condition of probation in this case presents a clear and simple error. The transcript of the sentencing hearing discloses the special condition was not orally pronounced at sentencing. Thus it must be stricken. Maddox v. State, 760 So.2d 89 (Fla.2000); State v. Williams, 712 So.2d 762 (Fla.1998); Edwards v. State, 814 So.2d 1197 (Fla. 2d DCA 2002); Rothery v. State, 757 So.2d 1256 (Fla. 5th DCA 2000). We agree with the state that in a proper case, a trial judge could impose as a condition of probation that a defendant not drive. But that did not occur in this case, nor was it orally pronounced.

AFFIRMED in part; REVERSED in part; Special Condition of Probation STRICKEN.

SAWAYA, J., concurs.

THOMPSON, CJ., concurs specially in result only.

      . § 893.13(1)(a)(1), Fla. Stat. (2001).

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . "Notwithstanding the provisions of s. 322.28, upon the conviction of a person 18 years of age or older for possession or sale of ... a controlled substance, the court shall direct the department to revoke the driver’s license or driving privilege of the person....”

      . See State v. McFadden, 772 So.2d 1209 (Fla.2000) (holding when cross-examining a defendant or witness for impeachment purposes as to prior convictions, cases where adjudication was withheld are not "convictions”); Cella v. State, 831 So.2d 716 (Fla. 5th DCA 2002) (stating that a defendant who has adjudication withheld and who successfully completes the term of probation imposed is not a convicted person).

      . See Negron v. State, 799 So.2d 1126 (Fla. 5th DCA 2001) (defendant who pled and adjudication withheld and who successfully completed probation should not be scored with a conviction under the guidelines). But see Montgomery v. State, 821 So.2d 464 (Fla. 4th DCA 2002), rev. granted, SC02-1943, 837 So.2d 410 (Fla. Jan. 8, 2003) (opposing view on same issue).

      . We also do not address the question of whether the statute authorizes a trial court to revoke a defendant’s driving privileges when it only authorizes the trial court to direct the Department of Highway and Motor Vehicles to revoke driver's licenses or driving privileges. See Blake v. State, 814 So.2d 1163 (Fla. 1st DCA 2002).

      . See, e.g., Blair v. State, 554 So.2d 1226 (Fla. 2d DCA 1990); Callahan v. State, 550 So.2d 79 (Fla. 2d DCA 1989).


text:
    Barry MORROW, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-451.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.
    Barry Morrow, Clermont, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Henry v. State, 679 So.2d 885 (Fla. 5th DCA), rev. denied, 686 So.2d 578 (Fla.1996). See also Stano v. State, 520 So.2d 278 (Fla.1988).

THOMPSON, C.J., SHAEP, W., and PALMER, JJ., concur.


text:
    Christopher PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-350.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.
    Christopher Phillips, Crestview, pro se.
    No Appearance for Appellee.
   PER CURIAM.

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

THOMPSON, C.J., PLEUS and TORPY, JJ., concur.


text:
    Alton W. BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-349.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.
    Alton W. Bell, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Alvarez v. State, 358 So.2d 10, 12 (Fla.1978). See also § 775.082, Fla. Stat.

. THOMPSON, C.J., SHARP, W., and ORFINGER, JJ., concur.


text:
    Edward L. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2241.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

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


text:
    HARRY GILLEAN, INC., Appellant, v. David ANGELL and Karrol Angell, Appellees.
    No. 5D01-3584.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.
    Paul M. Meredith, Palatka, for Appellant.
    Preston J. Fields, of Preston J. Fields, P.A., Palm Beach Gardens, Arlene B. Huber, Palatka, Robert M. Fields, of Dowda and Fields, Chartered, Palatka, for Appel-lees.
   PER CURIAM.

DISMISSED. Trivett v. Dupree, 571 So.2d 574 (Fla. 5th DCA 1990); Magee v. Bishop Signs, Inc., 458 So.2d 1174 (Fla. 4th DCA 1984).

GRIFFIN, PALMER and TORPY, JJ., concur.


author: WELLS, Judge.

text:
    The STATE of Florida, Appellant, v. Manuel CASTRO, Appellee.
    No. 3D02-712.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellant.
    Ileana Haedo, for appellee.
    Before SCHWARTZ, C.J., and COPE, and WELLS, JJ.
   WELLS, Judge.

The State appeals from an order reducing a charge of trafficking in cannabis to a charge of possession of cannabis. We reverse.

Section 893.135, Florida Statutes (2002) provides in part:

(1) Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13:
(a) Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of 25 pounds of cannabis, or 300 or more cannabis plants, commits a felony of the first degree, which felony shall be known as “trafficking in cannabis, ” punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added).

Defendant was initially charged with one count of possession of cannabis and one count of trafficking in cannabis. At Defendant’s arraignment, the trial judge expressed the opinion that because the defendant’s arrest was based on possession of fewer than 300 plants, the trafficking charge could not stand even though the weight of the confiscated cannabis plants was admittedly greater than 25 pounds. We disagree.

Section 893.02, Florida Statutes (2002), defines the term cannabis as including “all” parts of any plant whether growing or not:

(3) “Cannabis” means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.

(Emphasis added).

Reading this provision with section 893.135, it is clear to us that the trial judge erred in concluding that the evidence mandated the reduction of the charge of trafficking to a charge of possession. We find the Fifth District’s observations in Carlson v. State, 27 Fla. L. Weekly D2162, 2002 WL 31202145, — So.2d — (Fla. 5th DCA 2002), to be directly on point. In Carlson, the Fifth District, in considering a similar claim, observed:

We further find that combining the weight of the processed cannabis with the weight of the growing plants in order to reach the prohibited amount was not error. The general definition of cannabis does not require a distinction between processed and unprocessed cannabis. See section 893.02(3), Fla. Stat. Merely because the legislature has since also defined “cannabis plant” does not detract from the general definition of cannabis. The purpose of also making the possession of “300 or more cannabis plants” a trafficking offense is to prohibit dealing in large numbers of plants regardless of their weight. By not changing the general definition of cannabis, it is clear that the legislature did not mean to prohibit a trafficking charge based on the weight of a combination of processed and unprocessed cannabis.

(Emphasis added).

We agree with this analysis. The trial court erred in concluding that reduction in the trafficking charge was necessary. Accordingly, the order under review is reversed and the matter remanded.

      . We note that the hearing in the case sub judice occurred in February of 2002 while Carlson was not issued until October 4, 2002.


text:
    Gianna SHEINHEIT, Appellant, v. Carlos CUENCA, Appellee.
    No. 3D02-2377.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.

      David H. Freedman, for appellant.
    Hersch & Talisman and Patrice Talisman, Miami, for appellee.
    Before JORGENSON, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

Gianna Sheinheit seeks to reverse a final judgment of injunction for protection against repeat violence entered against her. For the following reasons, we reverse.

On May 14, 2002, Carlos Cuenca filed for an injunction for protection against repeat violence against his neighbor, She-inheit. A final hearing was set for July 18, 2002. On July 8, 2002, Shéinheit’s counsel filed a motion to withdraw and on July 15, 2002, filed a motion for continuance. On July 16, 2002, the trial court granted the motion to withdraw and gave Sheinheit twenty days to obtain new counsel. Notwithstanding that she was granted twenty days to obtain representation, the trial court did not grant a continuance and the hearing took place as scheduled. Ultimately, the trial court entered a final judgment of injunction for protection against repeat violence and referred Sheinheit to the Advocate Program for a mental health evaluation. Sheinheit appeals, arguing that the trial court violated her due process rights by giving her twenty days to hire an attorney while at the same time forcing her to proceed pro se at a hearing in which all of the issues that required the assistance of an attorney were to be decided. We agree.

“[T]he opportunity to be represented by counsel in both civil and criminal proceedings has been equated with due process.” Times Publ’g Co. v. Burke, 375 So.2d 297, 299 (Fla. 2d DCA 1979) (citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). Although the discretion to grant a continuance rests with the trial court, “that discretion cannot be used to deny a party the basic tenets of due process.” Cervieri v. Cervieri, 814 So.2d 528, 529 (Fla. 4th DCA 2002). The inescapable conclusion is that this is precisely what happened here, especially when considering that Sheinheit’s mental well-being was at issue.

Accordingly, the final judgment of injunction is reversed and the case is remanded for a new hearing.

       It appears that the trial court never actually ruled on the motion for continuance.


author: SCHWARTZ, Chief Judge.

text:
    Graciela CASANOVA, Appellant, v. DEPARTMENT OF CHILDREN & FAMILY SERVICES, et al., Appellees.
    No. 3D02-2243.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.

      Feiler & Leach and Martin E. Leach, Miami, for appellant.
    Papy, Weissenborn, Vraspir & Puga and Sheridan Weissenborn, Coral Gables, for appellees.
    Before SCHWARTZ, C.J., and LEVY and SHEVIN, JJ.
   SCHWARTZ, Chief Judge.

The trial court granted summary judgment against the plaintiff, Ms. Casanova, on the ground that the claim letter she sent to the defendant agency on behalf of her child did not include her individual claim. See Metropolitan Dade County v. Reyes, 688 So.2d 311 (Fla.1996); Calero v. Metropolitan Dade County, 787 So.2d 911 (Fla. 3d DCA 2001). We reverse because, by waiting for more than two years from the complaint until after the three year claim period had expired to raise that alleged defect “specifically and with particularity,” as Florida Rule of Civil Procedure 1.120(c) requires, the defendant became estopped from relying upon it. Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla.1991); Rabinowitz v. Town of Bay Harbor Islands, 178 So.2d 9 (Fla.1965); VonDrasek v. City of St. Petersburg, 777 So.2d 989 (Fla. 2d DCA 2000); Gardner v. Broward County, 631 So.2d 319 (Fla. 4th DCA 1994); see Sobel v. Jefferson Stores, Inc., 459 So.2d 433 (Fla. 3d DCA 1984); Cf. Calero, 787 So.2d at 913.

Calero’s rejection of the estoppel and waiver argument on similar but decisively distinguishable facts does not require af-firmance in this case. This is because the answer in Calero, which asserted an affirmative defense that the plaintiffs had failed

“to comply with the conditions precedent to the institution and maintenance of this action in failing to comply with the provisions of Florida Statute § 768.28”

should have “alerted plaintiffs to the existence of a possible section 768.28 problem.” Calero, 787 So.2d at 913. In this case, in contrast, the affirmative defense, see note 3, specified a particular alleged defect in the claim, that of prematurity in notifying the Department of Insurance less than six months prior to the filing of the suit. Having particularized its objection in this way, the Department must be held to have waived or become estopped to assert any other, including the present one. This is particularly true because, if called to the plaintiffs attention as the defendant was bound to do, the defect could have been easily cured within the pertinent time.

The intent of the rule is that when, as here, the defending party contends that the suit should not have been filed because conditions precedent have not been satisfied, the defendant must be forthcoming in identifying exactly where the problem lies, so the plaintiffs will have a fair chance to take curative action or otherwise address the issue.

Calero, 787 So.2d at 914. See by analogy, Shelby Life Ins. Co. v. Paolasini, 489 So.2d 89, 91 (Fla. 3d DCA 1986)(affirmative misstatement that applicant saw physician for “checkup” and “flu” did not put insurer on notice that visit was actually for treatment of a heart condition; response only naming doctor “might have indicated that further information was required to fill in the ... gap as to the nature of the particular ailment”), review denied, 501 So.2d 1283 (Fla.1986).

For these reasons we reverse the order of dismissal and remand for reinstatement of Ms. Casanova’s individual claim.

Reversed and remanded.

      . The claim letter stated that:
      "This law firm has been retained by the above child’s natural mother, GRACIELA CASANOVA, to represent the minor child in a possible cause of action for injuries sustained while under the care and supervision of the State of Florida Department of Children and Families.”

      . Rule 1.120 Pleading Special Matters
      (c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

      .The complaint alleged that:
      "7. [T]he Plaintiffs have given notice to CFS as is required by the Florida Statute which waives sovereign immunity, Fla. Stat. Sec. 768.28....”
      With respect to this issue, the answer said,
      "7. Paragraph 7 is denied and this Defendant demands strict proof thereof.”
      "55. As an Affirmative Defense, this Defendant would state that the Plaintiffs have failed to comply with all conditions precedent in that they did not notify the Department of Insurance until February 16, 1999. Therefore, it has been less than six months prior to the filing of this suit and this suit is premature.” [e.s.]

      . In any event, as indicated in Judge Green's separate opinion in Calero, this language was unnecessary to the result and therefore likely no more than dictum.


text:
    Pedro Juan PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2075.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, for appellee.
    Before COPE, LEVY and SHEVIN, JJ.
   PER CURIAM.

Affirmed. Rodriguez v. State, 837 So.2d 1177 (Fla. 3d DCA 2003).


author: COPE, J.

text:
    Jan KHAN, Appellant, v. EXECUTIVE DRYWALL, INC., Appellee.
    No. 3D02-1529.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Rosenberg & Rosenberg and Vincent J. Rutigliano, for appellant.
    Kubicki Draper and Angela C. Flowers, Miami, for appellee.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   COPE, J.

Jan Khan appeals an adverse summary judgment in a premises liability case. We conclude that disputed issues of material fact remain, and reverse the summary judgment.

Plaintiff-appellant Khan was employed by an electrical subcontractor on a construction site at a commercial building. After beginning work, he went outside to obtain additional tools. At the time he left the room, the floor was clear of construction materials.

While he was gone, employees of defendant-appellee Executive Drywall, Inc. brought metal studs into the room to be installed. These are metal members on which drywall is placed.

The plaintiff reentered the building through a temporary door. He pushed the temporary door open. His attention was distracted by the noise of construction equipment operating to one side and he looked in that direction. In so doing he proceeded into the room without looking and fell over the metal studs which the drywall crew had brought into the room.

The plaintiff sued the defendant Executive Drywall for negligence in placing the metal studs just inside the temporary door. The trial court granted Executive’s motion for summary judgment and the plaintiff has appealed.

We conclude that disputed issues of material fact remain regarding whether Executive was negligent. The temporary door was the entrance to this part of the building. Evidently this was a solid door, not a glass door. The door swung inward and the studs were in the line of travel just beyond the point that the door swung open.

Under the circumstances, we think there remains an issue whether Executive was negligent in placing the metal studs in the line of travel behind the door which other workers must use to enter and exit the work area. Since the temporary door could not be seen through, it would appear hazardous to place the construction materials in that position without at least taking some step to warn other workers that the materials were there. See Richardson v. Wal-Mark Contracting Group, LLC, 814 So.2d 534, 535 (Fla. 2d DCA 2002).

The trial court relied on our decision in Roberts v. Dacra Design Associates, Ltd., 766 So.2d 1184 (Fla. 3d DCA 2000), where we said, “When an independent contractor goes to a construction site, he must anticipate that there may be construction materials on the premises, and that working conditions on the site may be less favorable than would be true once the work has been completed.” Id. at 1185. That case is, however, distinguishable. In that case, an air-conditioning contractor had been asked to repair an air-conditioning unit in a building under construction, where there were no lights. The air-conditioning repair person brought his own lights, but slipped on construction debris on the floor. The air-conditioning repair person sought to hold the owner of the building liable. This court held for the defendant on the theory that it had been the plaintiffs responsibility to provide the lighting, and that the general appearance of the site would have alerted a reasonable person to inspect for the presence of construction materials. There was no ongoing construction activity in the building at the time the air-conditioning representative went there.

In the present case, by contrast, the testimony indicates that this was an active construction site at which at least these two subcontractors had work in progress. A subcontractor is required to use reasonable care as it conducts its work. See Pooser v. South Florida Aluminum, Inc., 752 So.2d 27, 28 (Fla. 1st DCA 2000); Keene v. Chicago Bridge and Iron Co., 596 So.2d 700, 704 (Fla. 1st DCA 1992).

The plaintiff acknowledged that when he walked through the temporary door at the time of the accident, he looked to one side to see the source of the construction noise in the room. He proceeded ahead while looking to the side, did not see the metal studs, and tripped over them. Executive is certainly entitled to argue that the plaintiff was comparatively negligent.

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

Reversed and remanded.


author: THOMPSON, C.J.

text:
    Cheryl Ann DeVAUGHN, etc., Appellant, v. Michael DeVAUGHN, etc., Appellee.
    No. 5D02-1134.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2003.

      Michael B. Swindle, Winter Park, for Appellant.
    David C. Willis of Mateer & Harbert, P.A., Orlando, for Appellee.
   THOMPSON, C.J.

Cheryl Ann DeVaughn Castille, the mother of Russell L. DeVaughn (“Rusty”), deceased, appeals an order appointing Michael L. DeVaughn, Rusty’s uncle, personal representative of Rusty’s estate. We agree that the trial court abused its discretion in making the appointment and reverse the order.

ISSUE

At issue in this case is whether the trial court abused its discretion when it appointed the uncle personal representative, thus giving him control of an expected wrongful death action arising out of Rusty’s death. Rusty, a nineteen-year-old, was sitting on a lawn chair when he was fatally hit by a vehicle involved in a high-speed police chase in Seminole County. The uncle raised Rusty from the time Rusty was a young child, and the mother had no involvement with Rusty since he was four years old. The mother is preferred for appointment as personal representative under section 733.301(l)(b), Florida Statutes.

FACTS

Rusty was born in 1981. In 1983, after a police raid on their home, the mother and father, Mark DeVaughn, who were not at home when the raid occurred, signed a document purporting to make the uncle guardian of Rusty and his brother. Apparently, physical custody was transferred to the uncle at that time. A year or two later, apparently, the parents moved to Jacksonville, Florida, leaving Rusty with the uncle in Washington State. At some point, the uncle brought Rusty’s brother from Washington to the parents in Jacksonville. He returned to Washington, where Rusty apparently remained. Some time thereafter, the uncle and Mary J. Hodge, the woman with whom he lived, moved with Rusty to Florida, stopping in Jacksonville where the parents lived, and then going on to Sanford, where they settled. In 1986 or 1987, the uncle picked up one of Rusty’s sisters, who was born in February 1985, from a laundry in Jacksonville and brought her to Sanford. The uncle’s understanding was that the mother could not handle the child. At some point, the father announced to the uncle that he was leaving Rusty’s mother, and the father moved to Sanford. Rusty lived in the uncle’s household, while his brother and sister lived with the father. Within a year, the father and Rusty’s sister and brother moved to Ohio. In October 1986, the mother obtained an ex parte judgment of divorce in Jacksonville. The judgment gave custody to the father and stated that the mother did not know the whereabouts of the father and children. At the probate hearing below, the mother told the court that she had assumed the children were with the husband.

The uncle, a project manager for a construction company, had lived in Sanford since late 1985 or early 1986, and had been in and out of Sanford visiting relatives in previous years. He thought he should be personal representative because he raised Rusty and had, in his mind, been Rusty’s “real” parent. He testified that he would never refer to Rusty as anything other than his son and explained that this was why he indicated on the death certificate that he was Rusty’s father.

The mother testified that she had last seen Rusty when he was four years old. She testified that she tried to locate her son in the intervening years, but was unable to do so. The mother testified that she learned of Rusty’s death from the father, who she said, was a fugitive from justice. She did not attend Rusty’s funeral. She testified that she could not reach the uncle because she did not have his telephone number, but was later able to reach county authorities. She learned of the administration of the estate from a notice sent by the uncle’s attorney. Regarding her qualifications to be personal representative, the mother testified that following an investigation of her background, a Colorado social services agency approved the mother’s gaining custody of her daughter, whom the agency had removed from the father’s Colorado home. The mother’s testimony was corroborated by documents issued by the Colorado agency. In addition to the Colorado investigation, her background had been investigated in Washington in connection with her work with the elderly. She testified that she is an American citizen and has never been convicted of a crime.

The record shows that the law firm representing the uncle in the probate case sent the mother a letter which stated that an estate needed to be opened “to handle any assets resulting from possible insurance proceeds or other sources,” and which told her that although she was statutorily preferred to be appointed personal representative, the uncle had agreed to serve because the parents lived so far away and because the uncle had raised Rusty. The letter requested that the mother sign an enclosed document consenting to the appointment of the uncle. Although the mother did not consent, the uncle filed a petition for administration which said that both parents had consented to the uncle’s appointment. A verified consent from the father was attached to the petition. Also attached was the death certificate, which stated that the uncle and Mary J. Hodge were Rusty’s parents. The petition named the parents as beneficiaries of the estate, along with the uncle and Mary J. Hodge, who were listed as beneficiaries by virtue of their being “de facto” parents.

The mother filed an objection to the uncle’s petition and filed her own petition for administration, seeking appointment as the personal representative. After a hearing, the court entered the order appointing the uncle personal representative. The court found that Rusty’s estate would have few assets other than the potential recovery in the anticipated wrongful death action. It found that Rusty had no children and that the parents were the survivors under the Wrongful Death Statute. The court found the mother’s testimony that she tried to locate her children on numerous occasions lacking in credibility. The court ruled that the mother was statutorily preferred to be appointed personal representative, and that the uncle did not have a cause of action for the wrongful death. Nevertheless, the court appointed the uncle personal representative stating: “although [the uncle] will not be entitled to share in any proceeds of the wrongful death suit to be filed, he has a personal and emotional stake in seeing that the potential defendants pay appropriate damages for the death of [Rusty], although those damages will only inure to the benefit of the survivors of [Rusty], to wit, [the mother] and [the father].” The court found that the mother “does not have [ ] as intense [a] personal and emotional stake in the outcome of the suit.”

STANDARD OF REVIEW

The appointment of a personal representative for an intestate estate is a discretionary act of the probate courts. In re Estate of Snyder, 333 So.2d 519, 520 (Fla. 2d DCA 1976). Whether the court abused its discretion is determined in accordance with Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

DISCUSSION

We first consider the duties of the personal representative. The personal representative acts in a fiduciary capacity and has obligations to the creditors, the interested taxing authorities, and, most important in this case, the heirs. See Estate of Snyder, 333 So.2d at 521. The personal representative is merely a nominal party to the wrongful death action. Florida Emergency Physicians-Kang & Associates, M.D., P.A. v. Parker, 800 So.2d 631, 633 (Fla. 5th DCA 2001). The estate and the survivors are the real parties in interest. Id.; § 768.20, Fla. Stat. Wrongful death actions are brought on behalf of the survivors, not to recover for injuries to the deceased, but to recover for statutorily identified losses the survivors have suffered directly as a result of the death. City of Pompano Beach v. T.H.E. Insurance Co., 709 So.2d 603, 605 (Fla. 4th DCA 1998) (citing Martin v. United Sec. Services, Inc., 314 So.2d 765, 769 (Fla.1975)). In this case, the personal representative would have a fiduciary duty to the mother and father.

We next consider the mother’s prerogative to be appointed personal representative. When a deceased dies intestate, the order of preference for appointment is:

1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree. If more than one applies, the court may select the one most qualified.

§ 733.301(l)(b), Fla. Stat. In this case, the parents are the heirs nearest in degree to Rusty. As to the father, the trial court found that there was an outstanding warrant for his arrest, and the father has not made an appearance in this case, leaving the mother as the person preferred to be personal representative. The uncle does not dispute that the mother’s preference under the statute is higher than his. The mother testified that she had never been convicted of a crime, was a citizen of the United States, and was gainfully employed. Further, she testified that she would soon regain custody of her daughter and had been investigated and approved by state officials in Washington to work with the elderly. The uncle presented no evidence to show that she was not qualified to be the personal representative, nor did the trial court determine that she could not serve as personal representative.

On the other hand, the uncle raised Rusty and considered him to be his son. This may explain why he hired an attorney to recover money damages on his behalf. At the hearing below, the uncle would not state categorically whether he intended to file a wrongful death suit on his own behalf (as a “de facto” parent), but he moved for rehearing of the trial court’s ruling that he was not a survivor under the Wrongful Death Act. He ultimately withdrew the motion for rehearing, and on appeal does not dispute the trial court’s ruling that he is not a survivor under the Wrongful Death Act. Section 768.18, Florida Statutes, provides that “survivors” are “the decedent’s spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters.”

We recognize that a party having preference and who is not disqualified by the statute does not have an absolute right to the appointment. See Estate of Snyder, 333 So.2d at 520. Further, we know that the probate court has the inherent authority to consider a person’s character, ability, and experience to serve as personal representative. See Padgett v. Estate of Gilbert, 676 So.2d 440, 443 (Fla. 1st DCA 1996). However, if the statutorily preferred person is not appointed, the record must show that the person is not fit to be appointed. If the record supports the conclusion that the statutorily preferred person “lacks the necessary qualities and characteristics,” the court has discretion to refuse to make the appointment. Id. For example, a person may be unsuitable to serve as personal representative because of an interest adverse to the estate or hostility to those interested in the estate. Estate of Snyder, 333 So.2d at 520. That there are ill feelings, disputes, and strained relationships among the heirs does not necessarily prohibit one of them from being the best qualified. In re Estate of Harper, 271 So.2d 40, 42 (Fla. 1st DCA 1973). Cf. In re Estate of Schleider, 770 So.2d 1252, 1254 (Fla. 4th DCA 2000) (holding that “if a dispute which will result in unnecessary litigation and impede the administration of the estate is combined with other factors ... the totality of the circumstances may rise to a level that allows the trial court to exercise its discretion. in refusing to appoint the personal representative named in the will.”)

In this case, although the mother’s family is fragmented, the record does not support the conclusion that she lacks the character, ability, and experience required to prosecute the wrongful death case or to administer the estate. There is no showing that the mother has an interest adverse to the estate or a disqualifying hostility to the father, the only other person interested in the estate, or that appointing her would result in unnecessary litigation and impede the administration of the estate. Indeed, the court did not find that the mother lacked the necessary qualities and characteristics or was otherwise unsuited to be personal representative. Rather, the court found that the uncle had a greater personal stake in exacting redress for the death of Rusty, which is to say that the uncle is the more bereaved. In our opinion, the fact that a person with no interest in the estate is more bereaved than the statutorily preferred person does not make the latter unsuited to be personal representative, and it certainly does not entitle the former to be personal representative instead of the statutorily preferred person.

A trial court has discretion to appoint someone other than the preferred person, but where there is no evidence that the preferred person is not fit to be personal representative the court is not at liberty to ignore the statutory directive in order to appoint a person whom the court deems more morally worthy. Although the right to be appointed administrator may not necessarily be measured by the same standard used in determining the right to inherit, Estate of Snyder, 333 So.2d at 520, the statute favors heirs for appointment as personal representative because those who are eligible to take under the laws of intestacy are more likely to advance the interest of the other takers. In this case, it is the mother rather than the uncle who is more likely to advance the interests of the heirs.

CONCLUSION

The discretionary power that is exercised by a trial judge is not without limitation. In Canakaris, the court wrote:

The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic or reasonableness.

382 So.2d at 1203.

Even in view of the trial court’s intention to recognize the uncle’s emotional investment in Rusty’s life, we cannot find the appointment to be reasonable. In Kremer v. Kremer, 595 So.2d 214 (Fla. 2d DCA 1992), the court stated:

Judicial discretion has never been confused with the raw power to choose between alternatives, such as to go or not to go. Nor is judicial discretion unre-viewable simply because the trial judge chose an alternative that was theoretically available to him. As he did with so many complex ideas, Justice Cardozo distilled the essence of the thought in a few words:
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.

Id. at 217-218 (quoting B. Cardozo, The Nature of the Judicial Process, at 141). Here, the trial court’s discretion was bound by Canakaris and further circumscribed by section 733.301, which prefers the mother for appointment. In the absence of a reason not to appoint the mother personal representative, the trial court should have followed the statutory scheme.

In short, we hold that the trial court abused its discretion because there was no legal reason to interpose the uncle between the preferred party, the mother, and the subject matter of her interest. We reverse so that the trial judge can appoint the mother personal representative of Russell L. DeVaughn’s estate.

REVERSED with directions.

SHARP, W., and ORFINGER, JJ„ concur.

      . According to the mother’s petition, Rusty had two brothers, Shad Anthony Caldwell and Timothy Lewis DeVaughn, and two sisters, Nicole Louise DeVaughn and Jessica De-Vaughn.

      . In the Final Judgment of Dissolution of Marriage, Judge Beverley wrote:
      The husband shall have the primary residential care and custody of the children, Timothy Louis DeVaughn, Russell Lee De-Vaughn, and Nichole Louise DeVaughn, and shall be responsible for their day-to-day care and supervision. Their present location is unknown to the Wife.

      .Michael L. DeVaughn was the informant for the death certificate. He stated that he was Rusty's father and that Mary J. Hodge was Rusty's mother.

      . The El Paso County Department of Human Service records introduced at the hearing stated that the child was removed from the father's custody because he had neglected her. Thereafter, she told the authorities that he had repeatedly sexually abused her. The records also stated that the father's whereabouts were unknown.

      . At oral argument, Mr. Willis, the uncle’s attorney, stated that it was an error to file the petition without a consent from the mother. He stated the error occurred in his firm’s office and should not be attributed to the uncle.

      . The record shows that the uncle hired Attorney Kenneth J. McKenna to file a lawsuit. Attorney McKenna contacted Mr. James B. Bogner to assist in probating the estate. Mr. Bogner asked Mr. Willis, a shareholder in the firm, to assume full responsibility for the appeal of this case.


author: PER CURIAM. KLEIN, J.,

text:
    Solomon WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3566.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Solomon Willis, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Heidi L. Bettendorf and Daniel P. Hyndman, Assistant Attorneys General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING AND MOTION FOR CERTIFICATION OF CONFLICT

PER CURIAM.

We deny appellee’s Motion for Rehearing, grant appellee’s motion for certification of conflict and substitute the following for our previous opinion.

Solomon Willis appeals the summary denial of his rule 3.850 motion for postconviction relief.

Willis was charged with four counts of armed kidnapping and four counts of robbery with a firearm. Following a jury trial, he was convicted of four counts of false imprisonment, a lesser-included offense, and four counts of robbery with a firearm as charged. The trial court sentenced Willis to five years in prison on each of the false imprisonment charges and to 155.25 months, with a three year mandatory minimum sentence on each of the robbery charges.

Willis alleges that his trial attorney was ineffective because he did not object when the trial court failed to instruct the jury that robbery with a weapon is a lesser-included offense of robbery with a firearm.

Robbery with a weapon is a category one lesser-included offense of robbery with a firearm. See Standard Jury Instructions in Criminal Cases, 723 So.2d 123 (Fla.1998). Failure to give a requested instruction on a category one lesser-included offense is per se reversible error, which is not subject to harmless error analysis. See State v. Abreau, 363 So.2d 1063 (Fla.1978). But, to preserve a jury instruction issue for appellate review, the defendant must object to the instructions given or request other instructions. See Leveritt v. State, 817 So.2d 891, 896 (Fla. 1st DCA 2002); Benton v. State, 650 So.2d 688 (Fla. 1st DCA 1995). Requesting the instruction on a necessarily lesser-included offense is sufficient to preserve the issue for appeal. See Rodriguez v. State, 789 So.2d 513 (Fla. 5th DCA 2001). Although Willis claimed the error in this case is fundamental, the failure to instruct on even a category one lesser-included offense in a non-capital case is not fundamental error. See Richards v. State, 809 So.2d 38 (Fla. 5th DCA 2002)(citing Jones v. State, 484 So.2d 577 (Fla.1986)); Wilson v. State, 786 So.2d 632, 633 (Fla. 4th DCA 2001); Generazio v. State, 727 So.2d 333 (Fla. 4th DCA 1999); Johnson v. State, 695 So.2d 787, 788 (Fla. 1st DCA 1997). As a result, this issue could not have been raised on direct appeal.

The failure to request an instruction on a necessarily lesser-included offense is a legally sufficient ground to support an ineffective assistance of counsel claim. See Smith v. State, 807 So.2d 755 (Fla. 4th DCA 2002). In addition, “[t]he failure to preserve a potentially reversible error for appeal has been found to constitute ineffective assistance of counsel, sufficient to support a rule 3.850 motion.” See Daniels v. State, 806 So.2d 563, 564 (Fla. 4th DCA 2002). Willis does not specifically allege counsel failed to request the instruction for the lesser-included offense. Rather he asserts that counsel was ineffective because he did not object when the trial court failed to give this instruction. Pro se motions should be given liberal construction. See Martinez v. Fraxedas, 678 So.2d 489 (Fla. 3d DCA 1996); Ferris v. State, 575 So.2d 303, 304 (Fla. 4th DCA 1991). As a result, we construe Willis’ claim as alleging that counsel was ineffective for failing to preserve this issue, whether by failing to object or by failing to request the instruction.

Although the state suggests this issue could have been raised on direct appeal, the state does not allege and nothing in the record provided shows that counsel requested the instruction. The state attached a portion of the transcript, in which the trial court instructed the jury before deliberations. From the record provided it does not appear that defense counsel requested an instruction on the lesser offense or objected to the instructions given to the jury. The state did not attach the charge conference, which would show whether counsel had requested the instruction.

An evidentiary hearing may reveal that defense counsel made a tactical decision to not request this instruction. See Childers v. State, 800 So.2d 709, 710 (Fla. 2d DCA 2001). However, because Willis’ claim is facially sufficient and is not refuted by the record, we reverse and remand for an evidentiary hearing or record attachments conclusively refuting this claim.

Just as the first district certified conflict in Sanders v. State, — So.2d —, 28 Fla. L. Weekly D842, 2003 WL 1610878 (Fla. 1st DCA March 31, 2003) with our decision in Peffley v. State, 766 So.2d 418 (Fla. 4th DCA 2000), together with decisions from the fifth and second districts, we certify conflict with Sanders.

REVERSED AND REMANDED.

SHAHOOD and GROSS, JJ., concur.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

Smith v. State, 807 So.2d 755 (Fla. 4th DCA 2002) and Peffley v. State, 766 So.2d 418 (Fla. 4th DCA 2000), require us to reverse. But for those cases I would affirm.

Appellant argues that his trial counsel was ineffective because he did not request a jury instruction stating that robbery with a weapon is a lesser included offense of robbery with a firearm. He does not contend that there was any evidence that the instrument he used was anything other than a firearm. Accordingly, the only thing appellant could have hoped to gain from such an instruction was that “given the opportunity, the jury would have declined to follow the law” and granted a jury pardon. Hill v. State, 788 So.2d 315, 318 (Fla. 1st DCA 2001).

Appellant assumes that because the failure to give a requested lesser included instruction is per se reversible error on direct appeal, State v. Abreau, 363 So.2d 1063 (Fla.1978), it follows as a matter of course that he is entitled to post-conviction relief. What appellant overlooks, however, and what this court did not address in Smith and Peffley, is the distinction between prejudicial error on direct appeal, and the demonstration of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Hill, Judge Allen, writing for the court, explained:

Significantly, the test for prejudicial error in conjunction with a direct appeal is very different from the test for prejudice in conjunction with a collateral claim of ineffective assistance. There are different tests because, once a conviction becomes final, a presumption of finality attaches to the conviction. See Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Goodwin v. State, 751 So.2d 537, 546 (Fla.1999). Thus, as Goodwin explains, the test for prejudice on direct appeal is the harmless error test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), under which trial court error will result in reversal unless the prosecution can prove “beyond a reasonable doubt” that the error did not contribute to the ver-diet obtained. Conversely, however, as explained in Strickland, prejudice may be found in a collateral proceeding in which ineffective assistance of counsel is claimed only upon a showing by the defendant that there is a “reasonable probability” that counsel’s deficient performance affected the outcome of the proceeding.

Hill, 788 So.2d at 318, 319.

The reason that the failure to give a requested instruction on a lesser included offense is per se reversible on direct appeal is because “it is impossible to determine whether the jury, if given the opportunity, would have ‘pardoned’ the defendant to the extent of convicting him” of the lesser included offense. Abreau, 363 So.2d at 1064. A jury pardon, however, is essentially “a not guilty verdict rendered contrary to the law and evidence” and is an aberration. State v. Wimberly, 498 So.2d 929, 932 (Fla.1986)(Shaw, J., dissenting). It is also contrary to Standard Jury Instruction 2.8, which tells the jury that if it does “return a verdict of guilty, it should be for the highest offense which has been proven beyond a reasonable doubt.”

Given (1) the impossibility of determining whether appellant would have been granted a jury pardon, (2) the fact that such pardons are rare, and (3) that they are contrary to the evidence and the law, appellant cannot, in my opinion, demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

In Hill, the first district authorized post-conviction relief because it was bound to do so by precedent. That court has recently receded from that precedent in Sanders v. State, — So.2d —, 28 Fla. L. Weekly D842, 2003 WL 1610878 (Fla. 1st DCA March 31, 2003), and certified direct conflict, so that our supreme court will be able to resolve this issue.

      . We have recognized that an error which would result in a reversal on a main appeal, if raised, would not necessarily be a basis for post-conviction relief in Jenkins v. State, 824 So.2d 977 (Fla. 4th DCA 2002)(defense counsel's failure to object that the state’s peremptory challenge of a black juror was based on race could not be sufficiently prejudicial to support post-conviction relief).


text:
    Timothy ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4918.
    District Court of Appeal of Florida, First District.
    March 27, 2003.
    James C. Banks, Esquire, Special Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Kenneth D. Pratt, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is a direct appeal from convictions for aggravated battery on a law enforcement officer and violation of a domestic violence injunction. We affirm the conviction for battery on a law enforcement officer, but reverse the conviction for violation of a domestic violence injunction on the ground that appellant’s motion for judgment of acquittal should have been granted. The State failed to establish that appellant knew the permanent injunction had been entered against him, either through proof that appellant had been served with the permanent injunction, or through proof that appellant had some other notice. See Suggs v. State, 795 So.2d 1028, 1029 (Fla. 2d DCA 2001); Cordova v. State, 675 So.2d 632, 636 (Fla. 3d DCA 1996).

ERVIN, DAVIS, and BENTON, JJ., concur.


text:
    Henry Mac LOPER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-1026.
    District Court of Appeal of Florida, First District.
    March 27, 2003.
    William J. Ritchie, Destín, Mary Esther, for Petitioner.
    Charlie Crist, Attorney General, and Douglas T. Squire, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The officer’s failure to file a traffic citation with the court within five days after issuance to the violator, as required by section 316.650(3), Florida Statutes (2001), was not a jurisdictional prerequisite to the prosecution of the defendant. See State v. Hancock, 529 So.2d 1200 (Fla. 5th DCA 1988). The petition for writ of certiorari is

DENIED.

ERVIN, DAVIS and BENTON, JJ., CONCUR.


text:
    The ESTATE OF Robert PARKER, Appellant, v. Donie Parker NOWLIN and Wesley E. Nowlin, Appellee.
    No. 1D02-5115.
    District Court of Appeal of Florida, First District.
    March 27, 2003.

      Koko Head, Jacksonville, for Appellant.
    John London Arnold, Jacksonville, for Appellee.
   PER CURIAM.

Upon consideration of the appellant s response to the Court’s order of February 12, 2003, the appeal is hereby dismissed.

DISMISSED.

BOOTH, WEBSTER, and LEWIS, JJ., concur.


text:
    Andy WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2993.
    District Court of Appeal of Florida, First District.
    March 27, 2003.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Delva, 575 So.2d 643 (Fla.1991).

ERVIN, DAVIS and BENTON, JJ., concur.


text:
    Jacobi Franciscus FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3740.
    District Court of Appeal of Florida, First District.
    March 27, 2003.
    Nancy A. Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Hall v. State, 823 So.2d 757 (Fla.2002).

BARFIELD, BROWNING, and LEWIS, JJ., concur.


text:
    Jacobi Franciscus FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3835.
    District Court of Appeal of Florida, First District.
    March 27, 2003.
    Nancy A. Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Hall v. State, 823 So.2d 757 (Fla.2002).

BARFIELD, BROWNING, and LEWIS, JJ., concur.


author: ERVIN, J. WOLF, J.,

text:
    Kevin KESTEL, Appellant, v. CITY OF COCOA and United Self Insured Services, Appellees.
    No. 1D02-1476.
    District Court of Appeal of Florida, First District.
    March 27, 2003.
    Paul A. Kelley, Winter Park, and Bill McCabe of Shepard, McCabe & Cooley, Longwood, for Appellant.
    Bruce T. McKinley, Cocoa, for Appel-lees.
   ERVIN, J.

This workers’ compensation appeal poses the question of whether the 120-day pay-and-investigate provision set forth in section 440.20(4), Florida Statutes (Supp. 1998), applies to a situation in which the claimant has a preexisting compensable injury that is exacerbated or aggravated by work duties. The judge of compensation claims (JCC) concluded that the statutory provision was inapplicable, because claimant had suffered an exacerbation of a prior compensable injury, not a new compensa-ble accident, as claimant had contended, and all benefits to which claimant was entitled had been provided. As a result, he made no determination of the applicability of the 120-day period. We decline to read the 120-day rule so restrictively and therefore reverse and remand for further proceedings.

Section 440.20(1), Florida Statutes (Supp.1998), requires the employer/carrier (E/C) to provide compensation benefits to the injured worker, unless the E/C denies compensability. Alternatively, the E/C may opt to “pay and investigate,” as set forth in subsection 440.20(4), as follows:

If the carrier is uncertain of its obligation to provide benefits or compensation, it may initiate payment without prejudice and without admitting liability. The carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits. Upon commencement of payment, the carrier shall provide written notice to the employee that it has elected to pay all or part of the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensa-bility that it could not have discovered through reasonable investigation within the 120-day period.

Thus, once an E/C becomes aware of an injured employee’s need for medical or other compensation benefits, it has three options: pay, pay and investigate within 120 days, or deny. See Bynum Transp., Inc. v. Snyder, 765 So.2d 752, 754 (Fla. 1st DCA 2000). If the E/C commences payment and fails to investigate within the 120 days, or fails to deny compensability within that time period, the injury is deemed compensable. See, e.g., id.; Garner v. Clay County Dist. Sch. Bd., 798 So.2d 821 (Fla. 1st DCA 2001); Franklin v. Northwest Airlines, 778 So.2d 418 (Fla. 1st DCA 2001); Hunt v. Exxon Co. USA 747 So.2d 966 (Fla. 1st DCA 1999).

In applying the 120-day rule, we are cognizant that the above cases do not involve the unique facts of an initial compen-sable injury followed by a compensable exacerbation or aggravation thereof, as here, but rather involve a condition the E/C eventually contended was noncom-pensable. We conclude, however, that the occurrence of an exacerbation of a prior injury is not a legitimate factual distinction, because nothing in section 440.20(4) suggests that the pay-and-investigate rule does not apply to exacerbations of compen-sable injuries. Rather, the statute simply states: “If the carrier is uncertain of its obligation to provide benefits or compensation, it may initiate payment without prejudice and without admitting liability.” Here, there was clearly uncertainty as to whether benefits should be paid, either as an exacerbation of a preexisting injury or as a new accident.

Moreover, case law indicates that the 120-day rule may be applied in multiple circumstances involving an injury. For example, in Bynum Transport, the E/C initially considered the injury, caused by an automobile accident, to be compensable, but during the treatment process, it was discovered that the claimant had contracted Hepatitis C. The E/C paid for some treatment for the disease, but then terminated payments outside the 120-day period. The claimant then sought a ruling of the condition’s compensability, and the JCC found it compensable by virtue of the 120-day rule. On appeal, the E/C argued that the 120-day period only applied to the first claim following the injury, i.e., the initial provision of benefits, rather than any claim following the accident. This court disagreed, finding nothing in the statute that so limited the 120-day rule. Once the E/C became aware of the claimant’s need for medical benefits in regard to Hepatitis C, it had three options: pay, pay and investigate, or deny. Because the E/C was on notice of the necessity to investigate the cause of claimant’s Hepatitis C by virtue of a letter from his physician, the E/C could not evade its duty to investigate. The E/C’s failure to deny compensability within 120 days from the provision of benefits therefore constituted acceptance of compensability for Hepatitis C.

Multiple applications of the 120-day rule to different claims is also supported by Clements v. Walt Disney World Co., 819 So.2d 1014 (Fla. 1st DCA 2002). In that case, the E/C accepted the claimant’s back injury as compensable and authorized treatment for an exacerbation of his preexisting disc condition on February 23, 2000. On May 5, 2000, the treating physician recommended surgery, which the E/C did not deny until October 30, 2000, more than 120 days later. This court decided that section 440.20(4), as applied to an exacerbation of a preexisting condition, should “be reasonably construed as commencing the 120-day period for an investigation as to the compensability of the exacerbation, and not in regard to the compensability of a major surgical procedure related to the pre-existing condition.” Id. at 1015.

An E/C may avoid application of the 120-day rule if it establishes material facts relevant to compensability that it could not have discovered within the 120-day period. See § 440.20(4), Fla. Stat. (Supp.1998); Garner v. Clay County Dist. Sch. Bd., 798 So.2d at 823. In this case, the E/C argues that it was not on notice that appellant was claiming a new accident, as opposed to an exacerbation, until he filed his petition for benefits on May 29, 2001, and because the E/C had timely filed a notice of denial as to that petition, it contends the rule could not bar it from denying the compensability of a new accident. The JCC, however, never determined whether the E/C was on notice of the new accident or whether the exception to the 120-day rule regarding the discovery of relevant material facts outside the 120-day period applied, due to his decision that the 120-day rule was inapplicable. The case must therefore be reversed and remanded for further consideration of this issue, including the taking of additional evidence, if necessary.

In reversing, we reject the E/C’s argument, which equates with one asserting harmless error, that all benefits to which claimant was entitled were provided. This argument fails to acknowledge the importance of the accident date, which controls computation of the claimant’s average weekly wage and corresponding compensation rate. Additionally, it neglects statute-of-limitation issues that could arise. It also ignores the statutory definition of “accident,” which is “an unexpected or unusual event or result that happens suddenly,” and includes “acceleration or aggravation of the preexisting condition.” § 440.02(1), Fla. Stat. (Supp.1998).

Because we reverse and remand for reconsideration as to the application of the 120-day rule, we decline to reach appellant’s second issue regarding the ruling on major contributing cause. We agree with claimant, however, that the JCC erred in ruling upon the temporary partial disability claim, because that issue was taken from his consideration by the parties’ stipulation.

REVERSED and REMANDED.

VAN NORTWICK, J., concurs; WOLF, J., dissents with opinion.

WOLF, J.,

dissents.

The issue is whether a carrier who pays all requested benefits to a claimant in a good faith belief that the benefits are connected to an initial compensable accident is precluded from denying compensability of a second incident by the terms of section 440.20(4), Florida Statutes, when the carrier denies compensability and makes no further payment of benefit after becoming aware that the claimant is asserting that a second separate compensable incident took place. The JCC’s findings determining that no new compensable incident occurred and that the carrier was not precluded from denying the claim are supported by competent substantial evidence and should be affirmed.

Claimant originally sustained a permanent back injury at work on June 21, 1999. The carrier paid all compensation benefits which were due. The carrier also paid medical bills related to temporary flareups of the original injury. Another incident occurred on October 24, 2000. The carrier again paid all medical bills. Claimant’s main treating doctor described the October 24th incident as a temporary flare-up. Claimant filed a new petition for benefits claiming temporary total and/or partial disability benefits from the October 24, 2000, incident. The carrier filed a notice of denial of benefits on March 29, 2001.

Section 440.20(4), Florida Statutes (1998), deals with a carrier’s obligation to deny compensability within 120 days of providing benefits and the waiver of the rights to do so if the time periods are not complied with. The beginning of section 440.20(4), Florida Statutes, reads,

If the carrier is uncertain of its obligation to provide benefits or compensation ....

(Emphasis added).

The statute continues and states the obligation of the carrier to “admit or deny compensability within 120 days.” The clear intent of this statute is to make the carrier weigh its options concerning a known claim in an expeditious manner and to quickly inform the injured employee of its position.

In the instant case the JCC concluded, The Court finds that, as there was no new accident, there was no need to invoke the pay and investigate provisions of Section 440.20(4), Florida Statutes as the Employer/Seif-Insured appropriately rendered all benefits to which the Claimant was entitled under the June 21,1999, compensable accident date.

The JCC further made factual findings which were supported by competent substantial evidence which provide the bases for the conclusion. Implicit in the JCC’s findings is that there could be no conscious decision of the carrier concerning com-pensability for a new incident when they thought they were paying medical benefits pursuant to the original injury rather than a new compensable occurrence.

It is not reasonable to assume that the legislature intended to preclude a carrier from raising a valid defense where the factual determinations of the JCC support the conclusion the carrier was not under reasonable notice of its obligation to make the statutorily required determination of compensability. It was only after new benefits were requested that the carrier determined that there were allegations of a separate compensable incident. Com-pensability was denied within 120 days of that time.

Neither of the two main cases relied on by the majority, Bynum Transport, Inc. v. Snyder, 765 So.2d 752 (Fla. 1st DCA 2000), and Clements v. Walt Disney World Co., 819 So.2d 1014 (Fla. 1st DCA 2002), involve a situation where the carrier would not realize that a new and distinct claim was being made. In Bynum, only one accident was involved. There the only question related to the compensability of a hepatitis C condition, and the carrier paid benefits related to that condition for more than 120 days prior to challenging the compensability. Under such circumstances application of the statutory waiver was appropriate. Clements dealt with allowing the carrier to raise the compensability issue within 120 days of the specific request for new benefits. The court allowed the carrier to raise the defense. Neither Clements nor Bynum provide support for a conclusion that the employer is precluded by statute from challenging compensability where it is unaware that a new claim is being asserted.

I would affirm.