author: OFTEDAL, RICHARD L., Associate Judge.

text:
    STATE of Florida, Appellant, v. Brenda WOODARD, Appellee.
    No. 4D03-967.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellee.
   OFTEDAL, RICHARD L., Associate Judge.

The State appeals an order of the trial judge granting Brenda Woodard’s motion to modify her jail sentence.

On October 22, 2002, Woodard pled no contest to two felony counts of possession of cocaine and possession of drug paraphernalia. She was sentenced that same day on both counts to eight months in jail with credit for forty-five days time served. Her pro se motion to modify sentence was mailed in November 2002, within the sixty-day window period for filing as required by Florida Rule of Criminal Procedure 3.800(c). Although Woodard’s motion was timely filed, no action was taken or hearing held until February 18, 2002, at which time the trial court reduced her sentence to time served.

The State correctly argues that the trial court lost jurisdiction when it failed to reduce or modify Woodard’s sentence within sixty days of imposition of sentence. See Hussey v. State, 739 So.2d 123 (Fla. 4th DCA 1999). This is so even where, as in this case, the “motion sat in the court file while the time period expired.” Grosse v. State, 511 So.2d 688, 689 (Fla. 4th DCA 1987); see also State v. Blue, 603 So.2d 648, 649 (Fla. 5th DCA 1992)(“It is irrelevant that the motion to mitigate sentence was made within the sixty-day period.”). It is the sole responsibility of the movant to see that the motion is scheduled for a hearing within the window period.

Just as the Fifth District did in Blue, we elect to treat the State’s appeal as a petition for common-law writ of certiorari, inasmuch as it alleges that the trial court acted in excess of its jurisdiction. See id. Accordingly, the petition is granted and the order granting Woodard’s motion to modify her sentence is quashed.

PETITION GRANTED; ORDER QUASHED.

POLEN and GROSS, JJ., concur.

      . Florida Rule of Criminal Procedure 3.800(c) provides that, in the absence of a timely appeal, "[a] court may reduce or modify ... a legal sentence imposed by it within 60 days after the imposition.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    S.F., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3631.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, S.F., a child, was found guilty of petit theft and intimidating a witness and placed on probation. The public defender’s officer filed a brief and motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We agree there are no arguable issues on appeal and affirm; however, one issue must be addressed on remand. See Bell v. State, 798 So.2d 796 (Fla. 4th DCA 2001).

The disposition order related to the petit theft charge incorrectly describes the offense as a first-degree misdemeanor. The order should reflect the offense as a second-degree misdemeanor. It appears this is merely a scrivener’s error that requires correction, but not reversal. See id.

POLEN, KLEIN and STEVENSON, JJ., concur.


text:
    Anthony E. PARKS, Appellant, v. EMC MORTGAGE CORPORATION, Appellee.
    No. 4D02-2734.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    Steven R. Brownstein of Levey, Airan, Brownstein, Shevin, Friedman, Roen & Kelso, LLP, Coral Gables, for appellant.
    Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, for appellee.
   PER CURIAM.

We have considered the issues raised by appellant and find them to be without merit. We therefore affirm the main appeal. We reverse on the cross-appeal for a correction of a scrivener’s error as to prejudgment interest, which should have been $35,724.74. Affirmed in part and reversed in part.

POLEN, KLEIN and HAZOURI, JJ., concur.


text:
    Shirley WILLIAMS, Appellant, v. SEARS, ROEBUCK & CO. and Jiffy Lube International, Inc., Appellees.
    No. 4D03-1451.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.

      James K. Clark and Bianca G. Liston of Clark Robb Mason Coulombe & Busch-man, Miami, and Michael Cecere of Clark Robb Mason Coulombe & Buschman, Fort Lauderdale, for appellant.
    J. Alfredo De Armas and Jorge C. Bor-rón of Alvarez, Armas & Borron, Coral Gables, for appellee Sears Roebuck & Co.
   OFTEDAL, RICHARD L., Associate Judge.

Plaintiff, Shirley Williams, appeals a final summary judgment in favor of the defendant, Sears, Roebuck & Co. (Sears), in this slip-and-fall negligence case.

Plaintiff fell and suffered personal injuries after driving her car to a Sears garage, in which Jiffy Lube shared space and operated a quick , oil change business. She alleged that Sears was negligent (1) for failing to keep its floor clean and free of debris and (2) by creating a negligent condition by permitting a Jiffy Lube employee to improperly invite her into the repair shop to assist him in the service of her automobile.

Because we find that Sears has met its burden by conclusively establishing that the plaintiffs claims cannot be proven as a matter of law, we affirm. See Jennaro v. Bonita-Fort Myers Corp., 752 So.2d 82, 83 (Fla. 2d DCA 2000)(“[T]o obtain summary judgment the defendant must establish unequivocally that it was not negligent or that the plaintiffs negligence was the sole proximate cause of the injury.”).

We agree with the plaintiff that it is not necessary that she identify with any specificity the nature of the substance that caused her to fall. See Kinney v. R.H. Halt Assocs., Inc., 826 So.2d 328, 330 (Fla. 2d DCA 2002). Thus, even though plaintiff could not say whether it was oil or grease or some other foreign substance on the ground that she slipped on, she should not be denied her day in court unless it is conclusively proven that there was no substance on the floor that was the proximate cause of her injuries. We do not believe, as the plaintiff argues, that she can defeat Sears’s motion merely by asserting that because she slipped, it must be assumed or presumed that there had to be something of a foreign nature on the floor that precipitated her fall. When pressed by defense counsel on deposition, the plaintiff candidly acknowledged her lack of knowledge as to any substance on the floor:

Q: And as you sit here, you don’t know whether you slipped on oil, on dirt, on water, on anything?
A: No, I don’t, (emphasis added).

It is not enough for the plaintiff to suggest that because she slipped on Sears’s floor, her fall was not due to her own unsteadiness but because of Sears’s negligence in maintaining the premises. See Voelker v. Combined Ins. Co. of Am., 73 So.2d 403 (Fla.1954).

In addition, Sears introduced evidence establishing that immediately following plaintiffs fall, an inspection was made by Sears’s Safety Coordinator, who examined the area for the presence of any transitory foreign substance or debris both on the floor and on plaintiffs clothing. Both inspections were negative. For her part, the plaintiff never saw anything on the floor either before her fall or on her clothing after the fall. Nor is there any record evidence of any other person, employee, or customer who made such an observation.

While the burden on a moving party seeking summary judgment is a heavy one, it is not impossible. Sears’s initial burden is to come forth with sufficient evidence to support its assertion that there is no genuine material factual issue. Only then does the burden shift to the non-moving party to establish the existence of an issue of material fact. See Suggs v. Allen, 563 So.2d 1132, 1133 (Fla. 1st DCA 1990). Sears met its burden by the introduction of the plaintiffs own testimony establishing a complete lack of knowledge as to whether anything may have caused her fall. Coupled with an immediate examination of the subject premises and plaintiffs clothing, it is clear that plaintiffs case is grounded in no more than a guess or speculation, not founded on observable facts or reasonable inferences drawn from the record. Plaintiff, on the other hand, failed by way of deposition or affidavit to raise the existence of any material fact. Therefore, the entry of summary judgment was proper.

AFFIRMED.

POLEN and GROSS, JJ., concur.

      . Plaintiff also brought suit against Jiffy Lube International, Inc. That action is still pending before the trial court.


author: MAY, J.

text:
    STATE of Florida, Appellant, v. Steven GARCIA, Appellee.
    No. 4D02-4358.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellant.
    Maury Halperin, Fort Lauderdale, for appellee.
   MAY, J.

The State appeals a trial court order that granted the defendant’s motion to suppress. It argues that it had consent and/or exigent circumstances existed to validate the otherwise warrantless search. We disagree and affirm.

Officer Guaracino testified that around 3:30 a.m. on September 9, 2001, he followed Keith Evan Bua from a closed shopping center pay phone to an apartment complex parking lot. After being contacted via radio that Guaracino was observing a suspicious person, Officer Velez arrived in his own police car. Both officers observed Adalberto Morciglio exit a second floor apartment and make contact with Bua. The officers witnessed Bua and Mor-ciglio complete a hand to hand exchange of U.S. currency for an unknown substance. The officers suspected a narcotics transaction.

Officer Guaracino apprehended Morcig-lio, who initially attempted to flee, and read him his rights. He found cocaine on Morciglio. Guaracino asked him if he had any other drugs. Morciglio volunteered that he had more in the apartment upstairs. Morciglio then led both uniformed officers up to the apartment. Guaracino testified that Morciglio did not tell them whether he lived in the apartment. Officer Velez, however, testified that Morciglio told them that he did not live there and was just visiting friends.

Morciglio knocked on the door; the defendant answered. Guaracino testified that upon the door opening, he smelled and identified the odor of marijuana coming from the apartment. Guaracino also testified that he could see marijuana and cocaine on a glass table close to the door when the defendant opened the door.

According to Officer Guaracino, the defendant told him they were having a party, stepped aside, and said “come on in.” Officer Velez testified, however, that he did not hear the defendant say “come on in,” but he did step aside. The defendant testified that the officers “forcibly put their hand through the door, put the [sic] hand on their guns, and told us they had to talk to us.” While the encounter did not end there, these are the facts relevant to our discussion.

At the end of the hearing on October 11, 2002, the court announced that the defendant met his burden to show that the evidence “was obtained by the government as a result of a search or seizure.” State v. Gay, 823 So.2d 153, 154 (Fla. 5th DCA 2002), review denied, 845 So.2d 889 (Fla.2003). The court stated that the police may not make a warrantless entry “into a suspect’s home for the purposes of making a felony arrest unless exigent circumstances are present.” . The court then found that the officers used Morciglio as their agent and entered the apartment accompanied by him, without valid consent from any person who had the right or authority to give consent. The court granted the motion to suppress as to all defendants.

Suppression issues may be a question of law, a question of fact, or a mixed question of law and fact. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). “[The proper standard of review depends on .the nature of the ruling in each case.” State v. Glatzmayer, 789 So.2d 297, 301 (Fla.2001). Rulings based on purely factual questions are clothed with a presumption of correctness, but must be supported by substantial competent evidence. Id. at 301 n. 7.

The State contends that the trial court erred in granting the motion to suppress because even though the police did not make a reasonable effort to ascertain whether Morciglio had actual or apparent authority to consent to their entry, the defendant consented. However, consent is a factual determination, which the trial court resolved adversely to the State. The court specifically found that no consent was given by the defendant. That decision is supported by substantial competent evidence. We will not disturb it. Davis v. State, 594 So.2d 264 (Fla.1992).

This leaves us with the issue of whether exigent circumstances existed to justify the warrantless search. The defendant argues that any exigent circumstances were created by the officers’ actions and that the State failed to show there was insufficient time to secure a search warrant. We agree.

In Gnann v. State, 662 So.2d 406 (Fla. 2d DCA 1995), an informant brought police to a motel room where the informant had arranged earlier to purchase cocaine. Police saw Gnann cutting cocaine through a gap in the motel room curtains. Rather than obtaining a search or arrest warrant, the officers knocked on the door. When Gnann opened it, the officers entered the motel room and arrested her.- The second district held that exigent circumstances did not exist to justify the warrantless search.

Here, the trial court found that the facts were similar to those in Gnann and distinguishable from this court’s prior decisions in Gilbert v. State, 789 So.2d 426 (Fla. 4th DCA 2001), and State v. Carr, 549 So.2d 701 (Fla. 4th DCA 1989). We agree.

In both Gilbert and Carr, the exigent circumstances were not created by the law enforcement officer. In Gilbert, the defendant called the police to come and arrest him on. an outstanding warrant. In doing so, the defendant created the exigent circumstance of potential destruction of evidence because the defendant anticipated the officer’s arrival. In Carr, the officer was investigating an attempted burglary, which caused him to knock on the defendant’s motel room door. When the drugs came into view, the exigent circumstance of potential destruction of drugs arose.

In this case, Officers Guaraeino and Velez testified they knew there was more cocaine in the apartment upstairs based on what Morciglio had told them. They knew that Morciglio did not live in the apartment. Although they had probable cause, they did not seek a warrant. Instead, they enlisted Morciglio as their agent to gain entry into the apartment. In doing so, they created the exigent circumstance (the possible destruction of evidence) by making their presence known before they obtained a warrant. The trial court’s findings of fact in this regard are supported by substantial competent evidence. We therefore affirm.

AFFIRMED.

SHAHOOD and HAZOURI, JJ., concur.


author: KLEIN, J.

text:
    Curtis A. MALLORY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-908.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of possession of a firearm by a convicted felon and argues that the trial court erred in denying his motion to suppress evidence. His counsel acknowledges that the motion to suppress, which was denied before trial, was not renewed during trial, and was therefore waived under our case law. State v. Gaines, 770 So.2d 1221 (Fla.2000). A recent statutory amendment, however, purports to eliminate the need to renew the objection at trial.

Section 90.104(l)(b), Florida Statutes, was amended by the 2003 legislature to provide:

If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

The amendment became effective July 1, 2003. Ch.2003-259, Laws of Fla. If this statute is procedural, it applies to pending cases such as this one. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla.1994).

Because the Florida Supreme Court, under Article V, § 2(a) of the Florida Constitution, is the exclusive branch of government empowered to adopt rules for practice and procedure in all courts, this statute, if procedural, would be unconstitutional. We are not addressing the validity of the statute because the parties have not cited the statute or addressed the issue.

Even if this statute is procedural, we recommend that our supreme court adopt it as a rule. See State v. Smith, 260 So.2d 489 (Fla.1972) (noting that the court had previously adopted an unconstitutional statute purporting to allow nonfinal appeals in criminal cases as a rule of appellate procedure).

Based on our experience, this preservation requirement, applied as far back as Robertson v. State, 94 Fla. 770, 114 So. 534 (1927), may have outlived its usefulness, particularly in criminal cases. We say this because we see many cases in which there has been a definitive ruling on a motion to suppress prior to trial, but defense counsel neglects to renew the objection during trial, precluding us from ruling on the merits. This will routinely result in a subsequent proceeding under rule 3.850, in which the defendant alleges that his trial counsel was incompetent for failing to preserve the error. A denial of relief will then result in a second appeal.

Because most pretrial denials of motions to suppress are based on findings of fact, the vast majority of those rulings, when considered on the merits, are affirmed on appeal. If we could decide those on direct appeal, it would eliminate the need for postconviction proceedings on that issue.

As we understand it, the rationale behind the rule requiring the objection to be renewed at trial is that the facts may have changed and, given another opportunity to consider the issue, the trial court could rule differently. The new statute does not preclude a party from asking the court to reconsider the prior ruling at trial. It only eliminates the necessity of having to make a perfunctory renewal of the objection.

Because statutes are presumed constitutional and given effect until they are declared unconstitutional, Ison v. Zimmerman, S72 So.2d 431 (Fla.1979), we apply the statute and reach the merits of the ruling on the motion to suppress. Concluding that there is competent substantial evidence to support the trial court’s finding that the firearm was not obtained as the result of an illegal search and seizure, we affirm.

STONE and HAZOURI, JJ„ concur.


text:
    Hugh STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1122.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.

      Jerry Luxenberg, Orlando, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction of exploitation of elderly person, but reverse his conviction of grand theft because the crimes involved one act of taking the same property and therefore violated double jeopardy. Thomason v. State, 790 So.2d 1189 (Fla. 4th DCA 2001). Affirmed in part and reversed in part.

POLEN, KLEIN and HAZOURI, JJ., concur.


text:
    DEPARTMENT OF REVENUE o/b/o Frances BLANCHARD, Petitioner, v. Derrick T. CLARK, Respondent.
    No. 4D03-2368.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2004.
    Charles J. Crist, Jr., Attorney General and William B. Branch, Assistant Attorney General, Tallahassee, for petitioner.
    Philip Michael Cullen, III of Philip Michael Cullen, III Chartered, Fort Lauder-dale, for respondent.
   PER CURIAM.

The Department of Revenue, on behalf of the mother, has appealed an order requiring the parties to submit to DNA testing in order to determine paternity. This order was entered two years after a final judgment established paternity.

This case is indistinguishable from Department of Revenue ex rel. Freckleton v. Gouldbourne, 648 So.2d 856 (Fla. 4th DCA 1995), in which the trial court, two years after a judgment of paternity, ordered testing to determine paternity. We granted certiorari relief and quashed the order, stating:

Absent a showing of fraud upon the court, a paternity order is res judicata on the issue of paternity and re-litigation of paternity issues would be unauthorized in connection with a subsequently-filed motion for contempt for failure to pay court-ordered child support.

We treat the notice of appeal in this case as a petition for certiorari and, as we did in Freckleton, quash the order requiring DNA testing.

POLEN, KLEIN and HAZOURI, JJ., concur.


author: GRIFFIN, J.

text:
    Anthony Mehemiah OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-672.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.

      James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING AND REQUEST FOR WRITTEN OPINION

GRIFFIN, J.

Appellant, Anthony Mehemiah Owens [“Owens”], has filed a motion for a written opinion or for rehearing of this court’s per curiam affirmance of the denial of his Rule 3.850 motion for post-conviction relief based on ineffective assistance of counsel. We grant the motion, withdraw our prior decision and issue the following opinion.

Owens was convicted of burglary of an occupied dwelling and petit theft after a jury trial on July 27, 1999. He was sentenced to concurrent terms of twelve years in prison. He contends in his motion for post-conviction relief that his trial counsel rendered ineffective assistance by failing to request a jury instruction on the defense of “claim of right.”

The underlying facts appear to be as follows: On June 12, 1998, an informant identified in the record as “Allison Janson” [“Janson”] told the Titusville police that she wanted to inform on Owens. The next day, Detective Thomas House was placed in “Janson’s” motel room on Riverside Drive in Titusville. The sliding glass door to the room was left open and House pretended to be asleep. House’s fellow officers, who were in an adjacent room, alerted House that someone (later identified to be Owens) was approaching the room in which he was located. House then saw Owens open and close the sliding door’s vertical blinds twice. When the blinds opened a third time, the man came into the room very quietly and walked along the north wall of the room. After Owens climbed onto the bed, he was apprehended by police.

The police searched Owens after his arrest and found two wallets on him, one of which was his own. According to police, Owens said he had obtained the other wallet from a friend before he went into the motel room.

The incident was videotaped by the police department, but there is no sound on the video. “Janson” did not testify at trial, and police had no contact with this individual after the arrest. Police made no verification of the name, address or identification she had given, nor did they check fingerprints or whether she had any outstanding warrants. They also did not know what, if anything, “Janson” told Owens to motivate him to enter her room.

Owens testified in his own behalf. He stated he had met a girl [“Janson”] who said she had been partying with a man who would not let her have her wallet. Owens stated that when he looked through the blinds of the room in which House was located, he told “Janson” that the man was asleep and she could get her wallet herself. However, she started to cry, so he went inside to get it for her. He denied telling the police that someone else had given it to him.

Defense counsel orally suggested to the court that a special instruction be given concerning Owens’ belief that he was entitled, at the lawful owner’s request, to recover the wallet that had been misappropriated by the man in the motel room. The judge denied the request.

Defense counsel never provided the court with a proposed special instruction in writing, never suggested the composition of the instruction, and did not provide legal authority for it. After the court explained why it thought the instruction should not be given, counsel responded “Okay” and made no further objection. During Owens’ appeal, the State urged that the asserted error in failing to give a “claim of right instruction” had not been preserved for appeal by trial counsel. This court per curiam affirmed.

Owens urges in his post-conviction claims that the trial court was obliged to instruct the jury as to any defense which was supported by a reasonable view of the evidence. Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983); Rodriguez v. State, 396 So.2d 798 (Fla. 3d DCA 1981). See also Thomas v. State, 526 So.2d 183 (Fla. 3d DCA 1988). He maintains that a well-founded belief in one’s right to possess property constitutes a complete defense to á charge of theft. See Chester v. State, 782 So.2d 967 (Fla. 3d DCA 2001); Brennan v. State, 651 So.2d 244 (Fla. 3d DCA 1995); Rodriguez.

The importance of this issue at trial is suggested by the fact that the jury asked to review Owens’ testimony concerning his actions and requested an instruction on the law. Although the question is not in the record, the court responded:

I will give you that instruction on intent to commit an offense. If [Appellant] felt that it was, is it legal to go into the room if you think that it belonged to someone else, effectively what you are having me do is to invade your factual province. I would be invading your province and I can’t do that. I can tell you what the law is to make the factual. If you want further instruction on the offense of burglary, I can do that. But, I can give you only the skeletal wall. I can’t cross over the line and get into the facts with you.

The State contends on appeal that Florida does not recognize as a defense to theft that the defendant had a good-faith belief that the true owner of the property had authorized him to take possession; rather, that a claim of right defense is only available if the defendant has a good faith belief that the property is his. The law is not so narrow, however, in Florida or in other jurisdictions. In Rodriguez, the court quoted from Baker v. State, 17 Fla. 406, 409-10 (1879), which in turn quoted 2 Bishop’s CRIMINAL Law § 851 for the proposition that:

In Bishop’s Cr. Law, Vol. 2, Sec. 851, the rule as collated from the best authorities is thus given: ‘In all cases where one in good faith takes another’s property under claim of title in himself, he is exempt from the charge of larceny, however puerile or mistaken the claim may in fact be. And the same is true where the taking is on behalf of another believed to be the true owner. Still, if the claim is dishonest, a mere pretense, it will not protect the taker.’ (emphasis omitted.)

Rodriguez, 396 So.2d at 799.

In their treatise on criminal law, LaFave and Scott describe the scope of the defense as follows:

(a) Claim of Right. One may take the property of another honestly but mistakenly believing (1) that it is his own property, or (2) that it is no one’s property, or (3) (though he knows it is another’s property) that the owner has given him permission to take it as he did. In any such event, he lacks the intent to steal required for larceny, even though his mistaken but honest belief was unreasonable. As to how the defendant can prove his claim that he actually had such an honest belief, it has been pointed out that the openness of the taking, as well as the reasonableness of the belief, though not conclusive, will buttress his claim of good faith, (footnotes omitted.)

LaFave & Scott, CRIMINAL Law § 8.5, at 722 (2d ed.1986). Florida appears to follow the orthodox view that this defense is available even to one who does not himself claim ownership. Chester, 782 So.2d 967; Brennan, 651 So.2d 244; Rodriguez, 396 So.2d 798. See also Alfaro v. State, 837 So.2d 429 (Fla. 4th DCA 2002). Given the centrality of the “claim of right” defense, it was ineffective assistance of counsel not to properly request the special jury instruction in writing, not to bring the applicable law to the trial court’s attention, and not to preserve the issue for appellate review.

Accordingly, we reverse the denial of appellant’s Rule 3.850 motion on this issue and remand to the trial court.

REVERSED and REMANDED.

PLEUS and ORFINGER, JJ„ concur.

      . §§ 810.02(1) and (3), and 810.07, Fla. Slat. (1997).

      . § 812.014(1) and (3)(a), Fla. Stat. (1997).

      . Owens acknowledged having ten prior felony convictions and one misdemeanor conviction.

      . The judge's response suggests that the jury may have been concerned about the evidence concerning Owens' understanding of who had the right of possession of the motel room.


author: SHARP, W., J.

text:
    STATE of Florida, Appellant, v. Redford Eugene MOUNCE, Appellee.
    Nos. 5D03-1126, 5D03-1127.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellee.
   SHARP, W., J.

The state appeals from orders in two cases, which dismissed charges filed against Mounce for failure to register with the Department of Motor Vehicles pursuant to section 943.0435(4) as a sexual offender. Both cases turn on the proper interpretation of section 943.0435(4) as to whether Mounce was required to re-register as a sexual offender when he changed his residence because his license was not then subject to renewal. We reverse.

Section 943.0435 provides in part:

(2) A sexual offender shall:
(a) Report in person at an office of the department, or at the sheriffs office in the county in which the offender establishes or maintains a permanent or temporary residence, within 48 hours after establishing permanent or temporary residence in this state or within 48 hours after being released from the custody; control, or supervision of the Department of Corrections or from the custody of a private correctional facility. Any change in the sexual offender’s permanent or temporary residence or name, after the sexual offender reports in person at an office of the department or at the sheriff’s office, shall be accomplished in the manner provided in subsections (k), (7), and (8).
(3) Within 48 hours after the report required under subsection (2), a sexual offender shall report in person at a driver’s license office of the Department of Highway Safety and Motor Vehicles, unless a driver’s license or identification card was previously secured or updated under s. 944.607(9). At the driver’s license office the sexual offender shall:
(a) If otherwise qualified, secure a Florida driver’s license, renew a Florida driver’s license, or secure an identification card. The sexual offender shall identify himself or herself as a sexual offender who is required to comply with this section and shall provide proof that the sexual offender reported as required in subsection (2). The sexual offender shall provide any of the information specified in subsection (2), if requested. The sexual offender shall submit to the taking of a photograph for use in issuing a driver’s license, renewed license, or identification card, and for use by the department in maintaining current records of sexual offenders.
* * *
(4) Each time a sexual offender’s driver’s license or identification card is subject to renewal, and within 48 hours after any change in the offender’s permanent or temporary residence or change in the offender’s name by reason of marriage or other legal process, the offender shall report in person to a driver’s license office, and shall be subject to the requirements specified in subsection (3). The Department of Highway Safety and Motor Vehicles shall forward to the department all photographs and information provided by sexual offenders .... (emphasis added)

The trial judge concluded that Mounce originally registered as a sex offender, pursuant to section 943.0435 and that when he changed his residence at a time when his driver’s license was not subject to renewal, he was not required to re-register under the statute. The judge read the provisions of subsection (4) quoted above, as using the conjunction “and” to mean that both events, the change of residence and a renewal of a driving license, must occur in order to trigger the registration requirement under the statute. He noted that the rule of lenity should be applied in this case to read the statute in a manner most favorably to the accused.

The state questions whether the rule of lenity should apply in this case, because section 943.0435 is a “civil” statute, only mandating registration. We reject that view, because the consequence of failure to register under the statute is not simply imposition of a civil penalty, but conviction of a third degree felony. However, use of the rule of lenity should not prevail if an interpretation favoring the accused adversely affects the efficacy of the statute and appears contrary to legislative intent.

It has often been noted that “and” sometimes can mean “or” (or vice versa) in the sense of allowing an alternative event to suffice, or in the sense of mandating a conjunctive event coincide with another. English grammar being what it is, the meaning of “and” and “or” sometimes is not precise and clear. Language is more of an art than a science.

In order to arrive at a proper construction of a statute, the court must look at various factors, including legislative intent and the statutory scheme as a whole and adopt the interpretation most likely to comply with legislative intent and fulfill the purpose of the statute.

Section 943.0435(12) sets forth the Legislature’s intent behind the registration requirements for sexual offenders:

(12) The Legislature finds that sexual offenders, especially those who have committed offenses against minors, often pose a high risk of engaging in sexual offenses even after being released from incarceration or commitment and that protection of the public from sexual offenders is a paramount government interest. Sexual offenders have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation of government. Releasing information concerning sexual offenders to law enforcement agencies and to persons who request such information, and the release of such information to the public by a law enforcement agency or public agency, will further the governmental interests of public safety. The designation of a person as a sexual offender is not a sentence or a punishment but is simply the status of the offender which is the result of a conviction for having committed certain crimes.

In order to protect the public, the Legislature established a system of registration for sexual offenders so that the public and law enforcement agencies can keep track of sexual offenders’ residences and possibly prevent future sex crimes from being perpetrated. If a sexual offender were only required to register a change of residency when that person’s driver’s license was renewed, and a change of residence coincided, there could be gaps in time in which a sexual offender’s change of residence was not reported. This interpretation would weaken the effectiveness of the registration requirements and make it more difficult to quickly locate sexual offenders residing in Florida.

Further, this interpretation of the statute is in conflict with section (2)(a) of the same statute. That provision provides:

Any change in the sexual offender’s permanent or temporary residence or name, after the sexual offender reports in person at an office of the department or at the sheriffs office, shall be accomplished in the manner provided in subsections (4), (7) and (8) .... (emphasis added)

This subsection says nothing about renewal of a license and refers one to subsection (4) for the manner of registering only. If “and” in subsection (4) does not mean “or” in the alternative, it is in conflict with subsection (2).

Both Mounce and the trial court rely on Jackson v. State, 807 So.2d 684 (Fla. 2d DCA 2001) as authority for a “conjunctive” interpretation of “and” as used in this statute. However, we do not read that case as addressing this issue. In Jackson, the court held that registration under the quoted provision was not required in that case because Jackson’s driver’s license had not been “renewed” when it was reinstated, after a payment of a traffic fine.

We find Grumet v. State, 771 So.2d 39 (Fla. 4th DCA 2000), rev. denied, 790 So.2d 1103 (Fla.2001) more on point. In that case, Grumet’s probation was revoked for having failed to register under section 943.0435(4). Grumet had changed his residence to Coral Springs, but had not registered there with the Department within 48 hours. In fact, he had been living there for a month without registering, at the time the revocation affidavit was filed, and he still had not registered at the time of the revocation hearing, two months later. Grumet did not argue that he was not required to register because his driver’s license was not subject to renewal under the statute and the issue of revocation turned solely on his failure to register within 48 hours after changing his residence. The court held that a substantial violation had been established, but remanded to clarify whether the trial judge found the failure to register was “willful.” But the clear inference of the court’s decision is that change of residence alone is sufficient to trigger the registration requirements of the statute. See also Giorgetti v. State, 821 So.2d 417 (Fla. 4th DCA 2002), rev. granted, 837 So.2d 412 (Fla.2003).

REVERSED and REMANDED.

MONACO, J., and SMITH, M.T., Associate Judge, concur.

      . We consolidated the appeals from the proceedings in the lower court: case numbers 2002-CF-739 and 2003-CF-194.

      . Section 775.021. Rules of Construction.
      (1) The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.

        See McLaughlin v. State, 721 So.2d 1170 (Fla.1998).

      . Section 943.0435(9) provides:
      A sexual offender who does not comply with the requirements of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . State v. Webb, 398 So.2d 820 (Fla.1981).

      . See discussion of cases in Winemiller v. Feddish, 568 So.2d 483, 484-485 (Fla. 4th DCA 1990).

      . See State v. Webb, 398 So.2d 820 (Fla.1981); Byte International Corp. v. Maurice Gusman Residuary Trust, 629 So.2d 191 (Fla. 3d DCA 1993); Winemiller.


author: WALLACE, Judge.

text:
    Jeb BUSH, Governor of the State of Florida, Petitioner, v. Michael SCHIAVO, as Guardian of the person of Theresa Marie Schiavo, Respondent.
    No. 2D03-5783.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2004.

      Kenneth L. Connor of Wilkes & McHugh, P.A., Tampa, for Petitioner.
    George J. Felos of Felos & Felos, P.A., Dunedin; Randall C. Marshall of American Civil Liberties Union of Florida, Miami; and Thomas J. Perrelli, Robert M. Portman, and Nicole G. Berner of Jenner & Block, LLC, Washington, DC, for Respondent.
   WALLACE, Judge.

Petitioner, Jeb Bush, Governor of the State of Florida, petitions for a writ of certiorari quashing a protective order entered at the request of Respondent, Michael Schiavo, as guardian of the person of Theresa Marie Schiavo, his wife. The protective order prohibited the Governor from taking the depositions of seven witnesses. We conclude that the order departs from the essential requirements of the law because Mr. Schiavo failed to demonstrate good cause for a blanket ban on the taking of depositions. A complete bar to the taking of any depositions may cause harm to the Governor that will not be remediable on appeal from a final judgment. Therefore, we grant the petition and quash the protective order entered by the circuit court.'

This certiorari proceeding comes to us from an action for a declaratory judgment filed in the circuit court by Mr. Schiavo against the Governor and the Attorney General in their official capacities. In the declaratory judgment action, Mr. Schiavo contends that chapter 2003-418, Laws of Florida, popularly known as “Terri’s Law,” is unconstitutional on its face and as applied to Mrs. Schiavo. As part of his preparation to respond-to the constitutional challenge, the Governor filed a notice of his intent to take the depositions of seven witnesses. Mr.- Schiavo was one of the proposed witnesses. Of the other six proposed witnesses, two were relatives of Mr. Schiavo, three were expert medical witnesses who apparently had knowledge of Mrs. Schiavo’s condition, and one was identified as the person with whom Mr. Schiavo currently resides. Mr. Schiavo promptly filed a motion for a protective order prohibiting the Governor from taking any of the proposed depositions. The basis for Mr. Schiavo’s motion was the asserted lack of relevance of the facts to which any of the seven proposed witnesses could testify at a deposition. In his motion, Mr. Schiavo alleged: “The Governor has failed to enunciate even one material fact that is in dispute in this case, and does not suggest how deposition [sic] of the subject witnesses is relevant to this cause, or is likely to lead to relevant evidence.” Mr. Schiavo concluded that the Governor’s notice of intent to depose the seven proposed witnesses was “nothing more” than an attempt to relitigate facts that had already been adjudicated in a guardianship proceeding concerning Mrs. Schiavo.

The circuit court conducted a hearing on the motion. The attorneys for Mr. Schiavo and for the Governor presented arguments on the motion. At the conclusion of the hearing, the court indicated that it was “going to grant the motion with the understanding that if the Court finds that at the summary judgment hearing that there are factual issues that are yet to be resolved, that obviously that discovery would be allowed to take place.” The circuit court subsequently entered a written order granting the motion based on the following finding of good cause: “[Cjurrently there are no identifiable disputed material facts in this cause and therefore the proposed discovery would not be reasonably calculated to lead to admissible evidence.” From this order, the Governor timely filed his petition for writ of certiorari.

“A trial court possesses broad, discretion in overseeing discovery, and protecting the parties that come before it.” Rojas v. Ryder Truck Rental, Inc., 625 So.2d 106, 107 (Fla. 3d DCA 1993), approved, 641 So.2d 855, 857 (Fla.1994). Pursuant to Florida Rule of Civil Procedure 1.280(c), a trial court may, upon a showing of good cause, issue a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” as justice may require. The burden of showing good cause is on the party seeking the protective order. City of Oldsmar v. Kimmins Contracting Corp., 805 So.2d 1091, 1093 (Fla. 2d DCA 2002). And, “a strong showing is required before a party will be denied entirely the right to take a deposition.” Deltona Corp. v. Bailey, 336 So.2d 1163, 1169-70 (Fla.1976) (approving the construction of rule 1.280(c) contained in Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 611 (Fla. 4th DCA 1975), which quoted from Moore’s Federal Practice, pp. 493-95 (2d ed.)). Florida courts have disapproved the entry of protective orders prohibiting the taking of depositions generally and orders providing for lengthy postponements of discovery. See Office of Att’y Gen. v. Millennium Communications & Fulfillment, Inc., 800 So.2d 255 (Fla. 3d DCA 2001); Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So.2d 1022, 1024-25 (Fla. 1st DCA 1998); Brennan v. Bd. of Pub. Instruction, 244 So.2d 463, 464 (Fla. 4th DCA 1971).

In this case, Mr. Schiavo’s motion for a protective order was based on the asserted irrelevance of any facts that might be developed at the proposed depositions and rested solely on his counsel’s legal argument that all of the facts pertinent to a determination of the constitutionality of chapter 2003-418 were either finally adjudicated in the guardianship proceeding or were stipulated to by the parties. Thus, according to Mr. Schiavo’s counsel, there were no disputed material facts in the case. In response, the Governor’s counsel argued that the Governor’s right to discover pertinent facts is not limited by the doctrines of res judicata and collateral estoppel because he was not a party to the guardianship proceeding.

Mr. Schiavo’s challenge to chapter 2003-418 includes not only a claim that, as applied to Mrs. Schiavo, the statute violates her right to privacy but also claims that the statute is an unconstitutional bill of attainder and an invalid special law, among other claims. Some facts pertaining to these claims may not or could not have been considered in the adjudication of facts in the guardianship proceeding. For example, testimony regarding the circumstances of the implementation of chapter 2003-418 and the statute’s effect on Mrs. Schiavo obviously played no role in the adjudication of facts in the guardianship proceeding. Mr. Schiavo’s legal argument in support of his motion for protective order did not address the propriety of precluding inquiry into such factual matters that may pertain to the effect and operation of chapter 2003-418 and, therefore, did not demonstrate good cause to support the issuance of the protective order. See Maris Distrib. Co., 710 So.2d at 1024-25; Orlando Sports Stadium, Inc., 316 So.2d at 610-11.

With regard to the facts that were adjudicated in the guardianship proceeding, the merits of a protective order precluding inquiry into these matters could not have been determined without first résolving the parties’ legal arguments concerning the status of the adjudicated facts as a subject of further inquiry in the declaratory judgment action. If one accepted the argument of Mr. Schiavo’s counsel that those facts were not properly the subject of discovery in the declaratory judgment action because they had already been finally adjudicated in the guardianship proceeding, it is arguable that taking depositions to inquire into such matters could be unduly burdensome, annoying, or oppressive. On the other hand, if one accepted the position of the Governor’s counsel that the Governor is not bound by the adjudicated facts in the guardianship proceeding, it is arguable that the Governor could be denied his right to pursue discovery he believes is necessary for him to support his defense of the constitutionality of the statute.

The circuit court entered the protective order without resolving the parties’ arguments on these issues. The circuit court, observing that the parties had not fully briefed the matter, expressed a desire for the parties to revisit the question of whether to allow the Governor to conduct any discovery at the time the parties presented arguments on Mr. Schiavo’s motion for a summary judgment determining chapter 2003-418 to be unconstitutional. However, the circuit court had to make two determinations before it could conclude that there were no “identifiable disputed material facts” so as to justify its finding of good cause. First, it had to make a determination of the propriety of inquiry into the statute’s impact on Mrs. Schiavo and other factually based aspects of the constitutional challenge to chapter 2003-418. Second, it had to make a determination of the propriety of any further inquiry into facts adjudicated in the guardianship proceeding. The omission of these necessary steps left the finding of good cause bereft of any support other than the conclusory assertion of Mr. Schiavo’s counsel that the proposed depositions lacked relevance. This conclusory assertion was insufficient to demonstrate good cause warranting the entry of a protective order. This error is not remediable on appeal because there is no practical way to determine after judgment how the denial of the right to depose alleged material witnesses would have affected the outcome of the declaratory judgment action. Accordingly, we grant the petition for writ of certiorari and quash the trial court’s order granting protective order.

To facilitate review of any protective order that may be entered in the future, the trial court is directed to include within its order a recital of the findings of fact and conclusions of law upon which the order is based.

Petition for writ of certiorari granted.

FULMER and DAVIS, JJ., Concur.

      . The guardianship proceeding has been the subject of four written opinions of this court. See Schindler v. Schiavo (In re Guardianship of Schiavo), 851 So.2d 182 (Fla. 2d DCA), review denied, 855 So.2d 621 (Fla.2003); Schindler v. Schiavo (In re Guardianship of Schiavo), 800 So.2d 640 (Fla. 2d DCA 2001), review denied, 816 So.2d 127 (Fla.2002); Schindler v. Schiavo (In re Guardianship of Schiavo), 792 So.2d 551 (Fla. 2d DCA 2001); Schindler v. Schiavo (In re Guardianship of Schiavo), 780 So.2d 176 (Fla. 2d DCA 2001).

      . During the same hearing at which the circuit court heard the motion for a protective order, counsel for Mr. Schiavo and for the Governor stipulated on the record to certain facts. These stipulations were made with reference to a document that has not been included in the materials submitted to us by the parties. Therefore, the content of all of the stipulations of facts reached by the parties'is unclear to us.


author: DAVIS, Judge.

text:
    Robert SCHINDLER and Mary Schindler, parents of Theresa Marie Schiavo, Appellants, v. Michael SCHIAVO, as Guardian of the person of Theresa Marie Schiavo, Appellee.
    No. 2D03-5200.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2004.

      Patricia Fields Anderson of Patricia Fields Anderson, P.A., St. Petersburg; and Jay Alan Sekulow, James M. Henderson, Sr., Walter M. Weber, and David A. Cortman of American Center for Law and Justice, Washington, DC, for Appellants.
    George J. Felos of Felos & Felos, P.A., Dunedin; Randall C. Marshall of American Civil Liberties Union of Florida, Miami; and Thomas J. Perrelli, Robert M. Portman, and Nicole G. Berner of Jenner & Block LLP, Washington, DC, for Appel-lee.
   DAVIS, Judge.

Robert and Mary Schindler, the parents of Theresa Marie Schiavo, challenge the trial court’s order denying their motion to intervene in case number 03-008212-CI-20, which is pending in the circuit court in Pinellas County. Because the trial court failed to follow the rule that has been established for determining motions to intervene, we reverse.

After previous guardianship proceedings resulted in the determination that the Schindlers’ daughter, Mrs. Schiavo, would have chosen to discontinue life-prolonging procedures after remaining in a persistent vegetative state, Mrs. Schiavo’s husband and court-appointed legal guardian of Mrs. Sehiavo’s person, Michael Schiavo, sought and obtained permission from the court to terminate life-prolonging procedures by withdrawing the hydration and nutrition tube that was sustaining Mrs. Schiavo’s life. The tube was withdrawn on October 15, 2003.

Six days later, on October 21, 2003, the Florida Legislature passed House Bill 35-E, which was enacted as chapter 2003-418, Laws of Florida, known popularly as “Terri’s Law.” This law allowed the Governor of the State of Florida, in certain situations, to issue a one-time stay and to order reinsertion of the hydration and nutrition tube. The Governor exercised this power and ordered reinsertion of the tube, which was accomplished soon after the Governor’s order. Mr. Schiavo, as guardian of Mrs. Schiavo’s person, then filed the action below, asking the trial court to declare chapter 2003-418 unconstitutional.

The Schindlers moved to intervene in this constitutional challenge, requesting permission to participate in the litigation as parties. Mr. Schiavo, as guardian of Mrs. Schiavo’s person, objected. The trial court denied the Schindlers’ motion, finding that “there are no significant factual issues to be developed that might be impacted by their presence as a party.” The order went on to suggest that any interest the Schindlers might have could be developed by their filing an amicus curiae brief.

However, under the now well-established rule authorizing intervention, which was originally adopted in Florida in Morgareidge v. Howey, 75 Fla. 234, 78 So. 14 (1918), the movant’s potential impact on the factual issues to be developed is not determinative. Rather, the trial court must find not only that the movant has an interest in the matter in litigation, but also that the movant’s interest is “of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment.” Id. at 15. The court explained: “In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of litigation.” Id.

In denying the Schindlers’ motion to intervene, the trial court did not address either of the elements of the Morgareidge intervention rule. Although the order denying the Schindlers’ subsequent motion for rehearing does use language that appears to acknowledge the Morgareidge rule by referring to the insufficiency of the Schindlers’ interest, that order does not explain why the Schindlers’ interest was insufficient pursuant to the above rule. Because the court did not apply the rule set forth in Morgareidge when it denied the Schindlers’ motion to intervene, the order is reversed.

Reversed and remanded for further proceedings consistent with this opinion.

FULMER and WALLACE, JJ., concur.


author: ORFINGER, J.

text:
    MAGNOLIA MANOR, INC. and Kenneth L. Mann, Appellant, v. Lunelle M. SIEGEL, etc., Appellee.
    No. 5D02-4065.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.
    Kenneth L. Mann of Kenneth L. Mann, P.A., Orlando, for Appellant.
    Alexander S. Douglas II and David J. Kohs of Pohl & Short, P.A., Winter Park, for Appellee.
   ORFINGER, J.

Magnolia Manor, Inc. and Kenneth L. Mann appeal the trial court’s order dismissing with prejudice a petition for probate of a 1978 will purportedly executed by Byron B. Mizell, deceased, and for revocation of the letters of administration issued to Lunelle M. Siegel, appointing her as personal representative of the estate of Byron B. Mizell. The genesis of this dispute can be found in our opinion issued following an earlier appeal in the estate proceedings. See First Union Nat’l Bank of Fla., N.A. v. Estate of Byron B. Mizell, 807 So.2d 78 (Fla. 5th DCA 2001) (“Mizell 1”).

In Mizell 1, we affirmed the trial court’s conclusion that certain testamentary instruments executed shortly before Mizell’s 1993 death were procured through undue influence and that Mizell was incompetent at the time those documents were executed. However, we reversed the trial court’s conclusion that Mizell died intestate, observing that because Mizell’s 1978 will had never been offered for probate, on remand, Magnolia Manor, Inc., the sole beneficiary named in the 1978 will, was to be notified of the probate proceeding and given an opportunity to offer the 1978 will for probate. After receiving notice, Magnolia Manor retained Kenneth L. Mann, an Orlando attorney, who filed a petition to revoke Siegel’s appointment as Mizell’s personal representative and seeking to admit the 1978 will to probate. The trial court dismissed the petition with prejudice, concluding that Mann lacked standing to file it. This appeal ensued and we reverse.

Mann’s petition, naming himself as “petitioner,” alleged that he had been designated as the successor personal representative by Magnolia Manor, the sole beneficiary. Siegel moved to dismiss, contending that Mann lacked standing in his own right to file a petition for administration as he was not an “interested party”, as defined by section 731.201(21), Florida Statutes (2002). The trial court agreed and dismissed the action with prejudice.

While we agree that the papers filed by Mann were not models of clarity, they were timely filed and provided, in relevant part, that:

Mann hereby responds to said notice [of administration] on behalf of Magnolia Manor, to have the 1978 will admitted to probate, to object to Siegel being qualified to serve and continuing to serve as personal representative under the circumstances, and to have Mann appointed as 2nd successor personal representative to conclude the administration of the estate.

(Emphasis added).

A fair reading of the papers Mann filed demonstrates that Mann was proceeding not for his own personal interest, but as a representative of Magnolia Manor. His papers claimed no personal standing, but demonstrated adequate standing for Magnolia Manor under the 1978 will. We conclude that the trial court erred when it dismissed Magnolia Manor’s petition. We reverse the order of dismissal and remand the matter for further consideration of Magnolia Manor’s papers. We find no merit in the remaining issues asserted by the parties.

REVERSED and REMANDED for further proceedings consistent herewith.

PETERSON and THOMPSON, JJ., concur.


text:
    Maurice Lashawn JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0012.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2004.

      Maurice Johnson, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. The petition for belated appeal is without merit and is procedurally barred because it is successive. See Hill v. State, 724 So.2d 610 (Fla. 5th DCA 1998). Accordingly, the petition is denied.

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    Jermaine Tyrone HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3409.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2004.
    Nancy A. Daniels, Public Defender; Anne H. Dunlap, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Bryan Jordan, 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). We affirm the convictions and sentences, but reverse that part of the probation order that included a special condition of probation that was not orally pronounced at sentencing.

Condition twelve of the order of probation provides that the appellant will submit to urinalysis, breathalyzer, or blood tests at any time. The last line of condition twelve states “[y]ou shall be required to pay for the tests unless payment is waived by your officer.” However, the last line was not orally pronounced at sentencing.

The appellant filed a rule 3.800(b) motion, wherein he contends that the trial court erred in entering a probation order, which included a special condition that he pay for drug and alcohol testing, when the condition was not orally pronounced at sentencing. The trial court granted the motion sixty-four days after the motion was filed. However, because the order was issued outside of the sixty-day time limit for rule 3.800(b) motions, the trial court’s order is a nullity and the appellant’s motion is deemed denied. See Byrd v. State, 840 So.2d 436 (Fla. 1st DCA 2003); Robinson v. State, 850 So.2d 658 (Fla. 1st DCA 2003); Fla. R.Crim. P. 3.800(b)(l)(B)(2003). Nonetheless, by filing a rule 3.800(b) motion, the appellant preserved this issue for consideration on direct appeal. See Fla. R.App. P. 9.140(e)(2)(2003); see also In re Anders Briefs, 581 So.2d 149, 152 (Fla.1991) (holding that an indigent defendant does not lose his Anders rights because counsel is able to identify relatively minor sentencing issues).

The condition imposed upon the appellant, that he pay for alcohol and drug testing, is a special condition of probation that must be pronounced orally in order to be properly imposed on a probationer. See Fla. R.Crim. P. 3.986 (2003); Cumbie v. State, 597 So.2d 946 (Fla. 1st DCA 1992)(holding that all special conditions of probation must be orally pronounced at sentencing). Accordingly, this case must be remanded to the trial court to strike the offending condition, so that the written order of probation conforms to the oral pronouncement. See Pyle v. State, 596 So.2d 744 (Fla. 1st DCA 1992). The appellant’s judgment and sentence is otherwise affirmed.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

BARFIELD, KAHN, and HAWKES, JJ., concur.


text:
    Dana Dashawn GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5116.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2004.
    Dana Dashawn Grant, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. See Adams v. State, 801 So.2d 145 (Fla. 1st DCA 2001).

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    Chad TEART, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3975.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2004.

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

See Sherwood v. State, 745 So.2d 878 (Fla. 4th DCA 1999)(coneluding that a sentence cannot be corrected once it has been served).

AFFIRMED.

BARFIELD, KAHN, and HAWKES, JJ., concur.


text:
    David C. WIMBERLY, Appellant, v. SECURITIES TECHNOLOGY GROUP, INC., Appellee.
    No. 4D02-4598.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    John L. Walkden, Fort Lauderdale, for appellant.
    Julian H. Kreeger of Julian H. Kreeger, P.A., Miami, for appellee.
   PER CURIAM.

We affirm the trial court’s order granting appellee, Security Technology Group, Inc.’s (“STG”), motion for summary judgment. We agree with the trial court that the record did not demonstrate that appellant, David Wimberly, had a disability under the Florida Civil Rights Act (“FCRA”), §§ 760.01-11, Florida Statutes (2000) or the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213 (1998).

Because Florida courts construe the FCRA in conformity with the ADA, a disability discrimination cause of action is analyzed under the ADA. See Tourville v. Securex, Inc., 769 So.2d 491, 492 n. 1 (Fla. 4th DCA 2000); McCaw Cellular Communications of Fla., Inc. v. Kwiatek, 763 So.2d 1063, 1065 (Fla. 4th DCA 1999).

The ADA defines a disability as: “(A) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). As the trial court noted in its order, Wimberly’s second amended complaint alleged that he had a disability pursuant to subsection (A).

Construing the statutory definition, the United States Supreme Court has noted that “[mjerely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). Pertinent to this case, walking is considered a “major life activity.” 45 C.F.R. § 84.3(j)(2)(ii) (2000).

For there to be a disability within the meaning of the ADA, there must be a substantial limitation on a major life activity; a “disabled” person must be completely unable to perform the activity, or significantly restricted in performing the activity as compared to an average person. See Williams, 534 U.S. at 195-96, 122 S.Ct. 681; 29 C.F.R. § 1630.2(j)(l) (2000). Factors to consider when determining whether an individual is “substantially limited” include: 1) “the nature and severity of the impairment;” 2) “the duration or expected duration of the impairment;” and 3) “the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” § 1630.2(j)(2).

To maintain an action under the ADA, Wimberly must have had an injury that “substantially” limited his ability to walk and stand. An impairment’s minor interference in major life activities does not qualify as a disability. See Williams, 534 U.S. at 197, 122 S.Ct. 681; Kelly v. Drexel Univ., 94 F.3d 102, 107 (3d Cir. 1996). Similarly, residual impairments after serious injuries do not constitute disabilities. See Rogers v. Int’l Marine Terminals, Inc., 1995 WL 16787, at *3-4 (E.D.La. Jan.17, 1995) (finding that the plaintiffs impairment of bone spurs, ligament damage, and gout in his right ankle was merely “a temporary condition and not a permanent disability”); Blanton v. Winston Printing Co., 868 F.Supp. 804, 807 (M.D.N.C.1994) (stating that impairments of short duration do not usually qualify as disabilities).

In Kelly, the plaintiff suffered from a fractured hip which led him to have a noticeable limp. 94 F.3d at 104. Soon after, due to financial difficulties, the employer eliminated the plaintiffs position. Id. The plaintiff filed an ADA claim against the employer and the district court granted summary judgment against him because it found that he was not considered disabled under the ADA. Id. at 105. The district court held “as a matter of law that [Kelly’s] trouble climbing stairs, which requires him to move slowly and hold the handrail, does not substantially limit his ability to walk.” Id. at 106.

The Third Circuit affirmed the district court’s finding of no disability within the meaning of the ADA. The court held that, although it was difficult to ascertain when a condition affecting a person’s ability to walk can be regarded as a disability under the ADA, the plaintiffs condition did not substantially limit him in his ability to walk. Id. at 108; see also Graver v. Nat’l Eng’g Co., 1995 WL 443944, at *11 (N.D.Ill. July 25, 1995) (finding that a plaintiff who had arthritis in his left ankle, walked with a limp, and experienced significant pain while walking did not have a disability because there was no evidence that his limp “significantly impaired his ability to walk, care for himself, or perform the functions of his job”).

The case at bar is similar to Kelly in that Wimberly had a slight limp and moved slower than he previously did. Wimberly was still able to perform his job. The doctor’s information provided to STG indicated that Wimberly’s impairment was not permanent or even long-lasting.

The trial court did not err by granting STG’s motion for summary judgment. There were no genuine issues of material fact and viewing the evidence in the light most favorable to appellant, the record demonstrated that his impairment did not rise to the level of a disability under the ADA. See Mitchell v. Girl Scouts of the U.S.A., 2003 WL 22705121, at *6 (S.D.N.Y. Nov.17, 2003) (noting that the inability to do a substantial amount of walking, while somewhat limiting, does not amount to a substantial limitation).

We also find no error in the trial court’s conclusion that the record did not support a case for retaliatory discharge.

AFFIRMED.

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


author: POLEN, J.

text:
    ATLANTA JET, a Georgia corporation, Appellant, v. LIBERTY AIRCRAFT SERVICES, LLC, a Delaware Limited Liability Company, Appellee.
    No. 4D03-656.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.

      John C. Dabney, Jr., of Johnson & Ward, Atlanta, Georgia, and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, for appellant.
    Robert A. Sweetapple and Alexander D. Varkas, Jr., of Sweetapple, Broeker, Var-kas & Feltman, Boca Raton, for appellee.
   POLEN, J.

Appellant, Atlanta Jet (Seller), has timely appealed a final judgment in favor of Appellee, Liberty Aircraft (Purchaser), on cross-motions for summary judgment. For the reasons that follow, we hereby reverse the final judgment of the trial court and remand with instructions to enter summary judgment in favor of Atlanta Jet, on all counts.

The parties entered into a contract for the sale of a 1978 King Air 200 aircraft for the sum of $1,695,000. The Contract called for a $50,000 cash deposit to be placed in escrow. It provided that upon the Purchaser’s acceptance, after a visual inspection and log book review, “the deposit shall be considered non-refundable and shall be released to the Seller.” The closing date was to be on or before April 15, 1999. The Contract contained no “time is of the essence” clause, nor was there any provision for damages or consequences in the event of a delay in delivery of the aircraft. The Contract also contained a liquidated damages clause, providing that the $50,000 deposit was to be retained as liquidated damages and not as a penalty, in the event that the Purchaser failed to accept delivery within seven days of notice that the aircraft was ready for delivery.

The parties entered into an addendum on April 5,1999 which stated:

Purchaser and Seller mutually agree as follows: Purchaser (Liberty Aircraft Services, LLC) has completed its visual inspection and log book review of the aforementioned King Air 200, serial number BB-396, and has accepted the plane on an “as is” basis.... Upon acceptance of this Addendum the deposit shall be considered nonrefundable and shall be released to Seller (Atlanta Jet, Inc.). Closing shall occur on or before April 15,1999.

The deposit was thereafter released.

The aircraft was not ready for the April 15, 1999 closing date. On April 19, 1999, the Seller wrote the Purchaser asking for a new addendum extending the closing date to April 27, 1999. The Purchaser never agreed to this proposed addendum. Nevertheless, the aircraft was again not ready at the time of the Seller’s proposed delayed closing date of April 27, 1999. When the aircraft was ready, the Purchaser was notified. On May 20, 1999, after the Purchaser failed to perform an acceptance flight, the Seller declared the Purchaser in default. The Purchaser then filed suit to have his $50,000 deposit returned. Cross-motions for summary judgment were heard and the trial court granted the Purchaser’s motion stating that the Seller was “not entitled to retain the deposit and the aircraft while failing to perform its own obligation within a reasonable period of time.” A motion for rehearing was denied and final judgment was entered on January 15, 2003.

The trial court found the Seller’s delay to be a material breach of the Contract, warranting the Purchaser’s unilateral termination of the contract and a return of the $50,000 non-refundable deposit. “The interpretation of a written contract is a question of law to be decided by the court. An appellate court is not bound to give the trial judge’s interpretation or construction of a contract any weighted presumption of correctness.” Gilman Yacht Sales, Inc. v. FMB Invs., Inc., 766 So.2d 294, 296 (Fla. 4th DCA 2000) (citations omitted). The appropriate standard of review is de novo. Id.

To constitute a vital or material breach, a defendant’s nonperformance of a contract must be such as to go to the essence of the contract; it must be the type of breach that would discharge the injured party from further contractual duty on his part but a defendant’s failure to perform some minor part of his contractual duty cannot be classified as a material or vital breach.

Beefy Trail, Inc. v. Beefy King Int'l., Inc., 267 So.2d 853, 857 (Fla. 4th DCA 1972). Before there can be a material breach, it is necessary to conclude that time was of the essence.

As a general rule, time is considered to be of the essence where an agreement specifies, or where such may be determined from the nature of the subject matter of the contract, or where treating time as non-essential would produce a hardship, or where notice has been given to the defaulting party requiring that the contract be performed within a stated time, which must be a reasonable time according to the circumstances.

Sublime, Inc. v. Boardman’s Inc., 849 So.2d 470, 471 (Fla. 4th DCA 2003); see Blaustein v. Weiss, 409 So.2d 103, 105 (Fla. 4th DCA 1982).

At bar, it is undisputed that the Contract provided for a closing date on or before April 15, 1999, but the Contract did not specify that time was of the essence. Moreover, there were no penalties for delay nor is it apparent that the Purchaser suffered any undue hardship due to the delay. Finally, the Purchaser never gave express notice requesting the contract to be performed within a stated reasonable time. Therefore, we hold that time was not of the essence. In doing so, we reject the Purchaser’s argument that an additional scenario should be recognized as placing time of the essence, i.e., when the party who is in default gives notice that an extension of time is needed and makes a suggestion as to a reasonable time for completion of that party’s obligation.

Consequently, we hold the Purchaser was not entitled to terminate the Contract. Moreover, because damages were not readily ascertainable at the time the Contract was drawn up, the Purchaser was not entitled to a return of its $50,000, which validly served as liquidated damages. See Hutchison v. Tompkins, 259 So.2d 129, 132 (Fla.1972). Accordingly, we hereby reverse and remand with instructions that summary judgment be entered in favor of the Seller, Atlanta Jet.

REVERSED and REMANDED.

KLEIN and HAZOURI, JJ., concur.


author: KLEIN, J. HAZOURI, J.,

text:
    STATE of Florida, Appellant, v. Frederico HERRERA, Appellee.
    No. 4D02-3400.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellant.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellee.
   KLEIN, J.

The trial court dismissed charges of aggravated battery with a deadly weapon and resisting arrest with violence because it found that Assistant State Attorney De-shonda Thomas violated the rule of sequestration of witnesses which had been invoked, improperly influenced the witnesses so that they could identify the defendant as the one who had committed the crime, suppressed evidence favorable to the defendant, and had not been candid with the court about violating the rule of sequestration. The state does not deny that Ms. Thomas did any of these things, but argues that dismissal is too harsh and that she should have been held in contempt or turned in to the Florida Bar. We disagree.

The charges arose out of a fight in a bar in which the victim was struck with a broken pool cue by one of a group of men. All of those involved in the brawl had been arrested, but the identification of which one had used the pool cue was a significant issue. After the rule of sequestration of witnesses had been invoked, the prosecutor met during trial with a group of eyewitnesses and showed them a photograph of the defendant in which he was very bloody. The prosecutor then gave these witnesses in the group information that would assist them in identifying the person in the photograph as the assailant, something they had been unable to do previously-

The fact that a violation of the rule had occurred came out while the defendant was cross-examining the victim. The victim was one of the witnesses who had been at the meeting, but he only indicated that he had met with the prosecutor, had been shown the photo of the defendant, and had been given information to help him identify the person in the photo as the defendant. At that point, the trial court granted a mistrial and suppressed the identification testimony of this witness. Defense counsel expressed concern that the prosecutor might have met with other witnesses, but the prosecutor said nothing. It was not until the defendant deposed other witnesses, prior to the second trial, that it came out that it had been a group meeting.

After further inquiry, the trial court found that the prosecutor had acted in bad faith, had not revealed the meeting with the group of witnesses when it was discovered she had met with one of them, and had intentionally altered the identification evidence by converting witnesses who were unable to identify the defendant into ones who could. He dismissed the charges, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (due process is violated when the state suppresses favorable evidence); Mathews v. State, 44 So.2d 664 (Fla.1950) (counsel are prohibited from improperly attempting to influence the testimony of witnesses); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (dismissal warranted where prosecutor fails to preserve evidence useful to defendant or intentionally alters evidence).

The state argues that overzealousness or misconduct by a prosecutor or defense counsel should be referred by the courts to the Florida Bar for disciplinary action, citing State v. Murray, 443 So.2d 955 (Fla.1984). Although we do not disagree, the state ignores the fact the prosecutor violated the defendant’s due process rights by converting eyewitnesses to the crime, who would have created doubts as to the identity of the perpetrator, into witnesses who would identify the defendant as the perpetrator. She thus destroyed evidence favorable to the defendant. We therefore affirm.

STONE, J., concurs.

HAZOURI, J., concurs specially with opinion.

HAZOURI, J.,

concurring specially.

I fully concur in the majority opinion and write only to express how appalled I am that Assistant State Attorney Thomas would engage in such conduct. Apparently her zeal to obtain a conviction caused her to breach the duty entrusted to her by the State to pursue justice as opposed to a mere conviction. I am also puzzled by the position taken by the State that although it does not dispute this misconduct, it suggests that the trial court, or this court, should hold Ms. Thomas in contempt or refer her to the Florida Bar as the appropriate remedy. Although this court could take such action, under the facts of this case, the State Attorney for the Seventeenth Judicial Circuit should take the necessary steps to discipline Ms. Thomas and to ensure that this type of conduct by one of his assistants is not condoned or ever repeated.


text:
    WAITE DEVELOPMENT, INC., and Douglas A. Webster and Jolynda H. Webster, husband and wife, Appellants, v. CITY OF MILTON, Appellee.
    No. 1D02-3315.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2004.

      Jesse W. Rigby and Stacey H. Allen, of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellants.
    Roy V. Andrews, of Lindsay, Andrews, & Leonard, P.A., Milton, for Appellee.
   PER CURIAM.

In early 1990, the appellants owned land which was outside the city limits of the City of Milton (City). In a Petition for Voluntary Annexation dated March 13, 1990, the appellants requested the City to adopt an ordinance annexing the property. The petition asserted the property was contiguous to the municipality and that the owners agreed to develop the property into a subdivision which would comply with all provisions of Florida Statutes, Santa Rosa County ordinances and City of Milton ordinances. The petition also stated:

3. The petitioners understand that the City of Milton will provide, as construction of the subdivision roads are completed, water, sewer, and natural gas trunk or primary lines to the lot line of each lot, and shall make available water, sewer and natural gas to the lot owners upon payment of the then established tap-on fee for each service, and the applicable rates for said services.

The City then passed Ordinance No. 841 on April 10, 1990, which provided in part:

Pursuant to Chapter 171.044 of the Florida Statutes, and pursuant to a Petition for Voluntary Annexation signed by owners of the hereinafter described real estate, the City Council of the City of Milton, Florida, hereby annexes the following described lands [property description omitted, but the same as that in the Petition for Annexation dated March 13, 1990] and the boundary lines of the City of Milton are hereby redefined to include said property.

The property owned by the appellants was developed in two phases. When phase one was developed, the City constructed the water, sewer and gas lines. The appellants were prepared to develop phase two in 1998. Prior to that time, the City enacted a comprehensive land use ordinance that prohibited the City from paying the cost of such infrastructure as the water, sewer and gas lines for a private developer developing a subdivision. The City informed the appellants that it would not install the water and sewer lines in phase two of the development.

The appellants then filed suit against the City alleging breach of contract. The appellants asserted that the Voluntary Petition for Annexation and the subsequent annexation referencing the Voluntary Petition constituted a valid and binding contract. The appellants also alleged equitable estoppel. The City filed a motion to dismiss the complaint, arguing the action was barred by the doctrine of sovereign immunity because there was no express written agreement. The City argued that the alleged contract was void and unenforceable because it would create a liability which could not be quantified and would constitute a pledge of credit and expenditure of funds for a private purpose, in violation of Article VII, section 10 of the Florida Constitution. The City also argued the alleged contract was ultra vires, unlawful, void, and unenforceable in that it would be a violation of section 166.241, Florida Statutes, and section 45 of the Charter of the City.

The trial judge found that the issue of whether the contract was void may be the subject of an affirmative defense, but was not the proper subject of a motion to dismiss. The trial judge granted the City’s motion to dismiss, however, with prejudice. The order provides:

The Plaintiff in this case seeks to have the Petition for Annexation and the subsequent annexation ordinance construed as a written contract. The Court finds that there is no express written contract alleged in the Complaint, nor does the Complaint allege that the City of Milton had authority to enter into any such express, written contract. There being no express written contract, the City of Milton, a Political Subdivision of the State of Florida, may raise sovereign immunity as a bar to the Complaint by the Plaintiffs. The Court finds that the State of Florida has not waived sovereign immunity and under the holding of the Florida Supreme Court in Pan-Am Tobacco Corporation v. Department of Corrections, [471 So.2d 4 (Fla.1984)], sovereign immunity is waived only where there is an express written contract.

We conclude the trial judge erred in determining that there was no express written contract alleged in the complaint.

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words. 17 Am.Jur.2d “Contracts ” § 3 (1964); 1 Arthur Linton Corbin, Corbin on Contracts §§ 1.18-1.20 (Joseph M. Perillo ed.1993). Where an agreement is arrived at by words, oral or written, the contract is said to be “express.” 17 Am.Jur.2d “Contracts ” at § 3.

Commerce Partnership 8098 Limited Partnership v. Equity Contracting Company, Inc., 695 So.2d 383, 385 (Fla. 4th DCA 1997). Several writings may constitute a valid and binding written contract when they evidence a complete meeting of the minds of the parties and an agreement upon the terms and conditions of the contract. Maas Bros., Inc. v. Dickinson, 195 So.2d 193 (Fla.1967); Edgewater Beach Corp. v. Sugarman, 153 Fla. 555, 15 So.2d 260 (1943); 11 Fla. Jur.2d, Contracts § 98. The complaint also sufficiently alleged the authority of the City to enter into such a contract. The appealed order is therefore reversed, and the case is remanded for further proceedings.

REVERSED and REMANDED.

BOOTH, BARFIELD, and ALLEN, JJ., concur.

      . Although the record is not completely clear on this point, we assume that the real property to be developed in phase two, or at least a portion thereof, was included within the description set forth in the petition and ordinance.


text:
    BROOKWOOD-EXTENDED CARE CENTER OF HIALEAH GARDENS, LLP d/b/a Waterford Convalescent Center, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D03-654.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2004.

      Theodore E. Mack, of Powell & Mack, for Appellant.
    Gregory J. Philo, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

Reversed and remanded for petitioner to file an amended petition for hearing in compliance with section 120.54(5)(b)4., Florida Statutes, and Rule 28-106.201, Florida Administrative Code. See Brookwood Extended Care Ctr. of Homestead, LLP v. Agency for Healthcare Admin., — So.2d -, 2003 WL 21920888 (Fla. 3d DCA 2003).

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    LARGO ACLF, LTD., d/b/a The Homestead of Largo, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D02-4569.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2004.
    Theodore E. Mack, of Powell & Mack, Tallahassee, for Appellant.
    Gregory J. Philo, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

Reversed and remanded for petitioner to file an amended petition for hearing in compliance with section 120.54(5)(b)4., Florida Statutes, and Rule 28-106.201, Florida Administrative Code. See Brookwood Extended Care Ctr. of Homestead, LLP v. Agency for Healthcare Admin., — So.2d -, 2003 WL 21920888 (Fla. 3d DCA 2003).

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    Juan Leal ESQUIVEL, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D02-4204.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2004.

      Appellant, pro se.
    Charlie Crist, Attorney General; Philip A. Fowler, Assistant Attorney General, Tallahassee and Louis A. Vargas, General Counsel, Department of Corrections, for Appellee.
   PER CURIAM.

We reverse the order of the circuit court dismissing appellant’s “Pro Se Petition for Writ of Mandamus” for “fail[ure] to file a copy of the complaint for each defendant, as required by ... [the] case management order.” Because appellant had recently been adjudicated indigent, the circuit court did not need any further filing “for purposes of allowing [it] to [re]determine the plaintiffs/petitioner’s indigency.” Accordingly, we reverse the dismissal and remand for further proceedings.

Appellant initially filed the petition for writ of mandamus in this court, along with an affidavit of indigency. On July 3, 2002, this court issued a certificate of indigency, permitting appellant to “proceed without prepayment of costs in compliance with Section 57.085(2) or 57.081(1), Florida Statutes (2001).” Two days later, this court transferred appellant’s petition to the circuit court pursuant to Florida Rule of Appellate Procedure 9.040(b).

On August 7, 2002, the circuit court entered a “Case Management Order,” based upon its finding that “the file [wa]s not complete for purposes of ... determining] the plaintiff/petitioner’s indigen-cy.” The order informed appellant that his case would be dismissed unless within thirty days he “either pa[id] the filing fee in full or” filed “[a] copy of the complaint, including any exhibits, for service by this court upon EACH defendant/respondent in this action. Copies sent by the prisoner directly to the defendant do not satisfy this requirement. A copy must be sent to the court.” The circuit court dismissed the case on September 26, 2002, explaining that appellant did not “file a copy of the complaint for each defendant.”

Here, as in Gonzalez v. Moore, 743 So.2d 158 (Fla. 1st DCA 1999), “this court had concluded that appellant had complied with section 57.085 before it transferred the case to the circuit court. The documents filed by appellant in this court were transferred to the circuit court....” Id. at 159 (reversing and remanding for the circuit court to “specify what documents, if any, required by its ‘Case Management Order’ have not already been provided” since “it is unclear from the record whether appellant has complied with all of the directives in that order”). Moreover, “[t]here was no evidence, indication, or suggestion that appellant’s status as an indigent had changed. Given these facts, we think the ata sponte action of the trial court was unwarranted.” Fields v. Jack Eckerd Corp., 439 So.2d 347, 347 (Fla. 2d DCA 1983) (vacating order advising appellant that the trial court’s recent adjudication of indigency “did not carry over to further ... proceedings”). Accordingly, we quash the order dismissing appellant’s petition and remand for further proceedings. On remand, “[sjhould the circuit court conclude that appellant has not already fully complied with [the Case Management] order, it shall afford appellant a reasonable opportunity to do so before dismissing the case.” Gonzalez, 743 So.2d at 159.

Reversed and Remanded.

BOOTH, BENTON, and LEWIS, JJ., CONCUR.


text:
    Teddy Ray FRYATT and Phillips Inventory Ser., Appellants, v. LANTANA ONE, LTD., Appellee.
    No. 1D02-3872.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2004.
    William H. Stafford, III, Esq. of Clark, Partington, Hart, Larry, Bond & Stack-house, Pensacola, for Appellants.
    Steven J. Baker, Esq., Pensacola, for Appellee.
   PER CURIAM.

Appellants, Teddy Ray Fryatt and Phillips Inventory Services, Inc., seek review of the trial court’s final judgment finding in favor of appellee, Lantana One, Ltd., on four causes of action. We affirm as to the first three issues on appeal without discussion. As to the final issue on appeal, we reverse and remand with instructions that the trial court strike from the final judgment the $10,000 damages awarded as lost time for appellee’s employee.

Appellee purchased a computer system, which did not function properly, for his retail outlet stores from appellants. The trial court properly found that appel-lee rightfully revoked acceptance of the computer system. Where the buyer rightfully revokes acceptance, the buyer is entitled to the purchase price that has been paid. § 672.711(1), Fla. Stat. (2002). Trial testimony revealed that appellee purchased the computer system from the appellants for three of its stores for a total price of $22,000. Thus, the trial court properly awarded damages of $22,000. See § 672.711(1), Fla. Stat.

However, the trial court erred in awarding appellee an additional $10,000 in damages as a “reward” for the efforts of Francine Armstrong, an employee of ap-pellee, in attempting to get the system operating properly. A buyer is entitled to incidental damages, which include expenses reasonably incurred in inspection, receipt, transportation, and care and custody of rightfully rejected goods, and consequential damages, which include any foreseeable and unavoidable loss resulting from the breach. § 672.715(1),(2), Fla. Stat. (2002). Here, however, the trial court found that appellee incurred no expense in attempting to get the system installed and operating properly. Because Mrs. Armstrong received a salary from appellee for her work, appellee did not incur additional cost for Mrs. Armstrong’s labor. Nevertheless, Mrs. Armstrong determined that she contributed approximately $10,000 worth of her services to working on the system. Mrs. Armstrong testified that employee productivity was affected, but she did not explain how productivity was affected and whether appel-lee incurred a loss as a result thereof. Moreover, appellee did not make a claim of lost sales or profits due to the system errors. Because appellee did not incur any additional expense, or suffer a loss, as a result of Mrs. Armstrong’s efforts to get the system operating properly, appellee is not entitled to damages for Mrs. Armstrong’s efforts. See § 672.715(1),(2), Fla. Stat.

Accordingly, the trial court’s final judgment is reversed only as to the $10,000 in damages awarded for Mrs. Armstrong’s “lost time,” and the cause is remanded with instructions for the trial court to strike this damages provision.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

BOOTH, BENTON and LEWIS, JJ., Concur.


text:
    Gene A. GRIER d/b/a El-Amin Shelter and Care, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D02-3822.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2004.
    Appellant, Pro se.

      Gregory J. Philo, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

Reversed and remanded for petitioner to file an amended petition for hearing in compliance with section 120.54(5)(b)4., Florida Statutes, and Rule 28-106.201, Florida Administrative Code. See Brookwood, Extended Care Ctr. of Homestead, LLP v. Agency for Healthcare Admin., — So.2d -, 2003 WL 21920888 (Fla. 3d DCA 2003).

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    BROWN DISTRIBUTING COMPANY OF WEST PALM BEACH, Petitioner, v. Gale MARCEL, Respondent.
    No. 4D04-388.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2004.
    Christine D. Hanley of Christine D. Hanley & Associates, P.A., West Palm Beach, for petitioner.
    No response required for respondent.
   KLEIN, J.

After prevailing in a jury trial of an age discrimination case brought under the Florida Civil Rights Act, plaintiff requested production of defense counsel’s billing records, on the ground that they were relevant to plaintiffs claim for statutory attorney’s fees. The trial court ordered production, and defendant seeks certiorari review contending that they are protected by the work product and attorney/client privilege.

At the hearing on the objection to the request for production, plaintiff explained to the court that her expert wanted to review the amount of time spent by defense counsel in order to arrive at an opinion as to whether the amount of time expended by plaintiffs counsel was reasonable. Plaintiff emphasized that she was only concerned with the amount of time, not the amount charged or any privileged information. The trial court concluded that information as to the amount of time and how it was spent, if not privileged, would be relevant and discoverable. Any information as to the activities performed by counsel, if protected by the work product or attorney/client privilege, was to be redacted.

Defendant argues that we should grant certiorari because the information which is the subject of the order of production is “cat out of the bag” material which will cause irreparable injury. Allstate v. Langston, 655 So.2d 91, 94 (Fla.1995).

Defendant relies on HCA Health Services of Florida, Inc. v. Hillman, 28 Florida Law Weekly D2758, — So.2d -, 2003 WL 22849390 (Fla. 2d DCA Dec.3, - 2003); however, the information sought in the present case is narrower than the information regarding the opponent’s attorney’s fees in Hillman. The Hillman court expressed concerns about the discovery of an opponent’s billing records because they could contain attorney/client information, work product, or be irrelevant. Descriptions of services rendered which reveal the mental impressions and opinions of counsel could be privileged, Old Holdings v. Taplin, Howard, Shaw & Miller, P.A., 584 So.2d 1128 (Fla. 4th DCA 1991), but are not at issue here.

Defendant also cites Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5th DCA 1999); however, in that case the court recognized that a number of courts have allowed discovery of an opponent’s fee information. Mangel involved an appeal from final order, not a petition for certiorari, and the court affirmed, finding no abuse of discretion in the trial court’s refusal to require production of defendant’s attorney’s time records.

Defendant has cited no authority holding that the limited information sought in this case is privileged. It is accordingly not “cat out of the bag” information contemplated by Langston which would give us certiorari jurisdiction.

Although a discussion of whether opposing counsel’s time records are relevant is unnecessary, because this court does not review discovery orders requiring production by certiorari where the only argument is relevancy, we briefly address that for the benefit of the-trial bench and bar. We agree entirely with the trial court’s decision in this case that this information was relevant. State Dept. of Transp. v. Skidmore, 720 So.2d 1125 (Fla. 4th DCA 1998) (approving hours spent by counsel for property owner in condemnation case and noting that it was not inconsistent with hours spent by the DOT’s counsel); Shudlick v. Shudlick, 618 So.2d 740, 741 (Fla. 4th DCA 1993) (affirming fee award to wife, noting it was not “out of line” with husband’s legal fees); Chrysler Corp. v. Weinstein, 522 So.2d 894 (Fla. 3d DCA 1988) (affirming a finding that counsel’s hours were not excessive when compared to opponent’s counsel’s hours).

Because the defendant has failed to demonstrate that production of this information will cause irreparable injury, we dismiss the petition for certiorari for lack of jurisdiction.

SHAHOOD and MAY, JJ., concur.