author: SHEPHERD, J.

text:
    The STATE of Florida, Appellant, v. Rafael NUNEZ, Appellee.
    No. 3D03-1568.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 2004.

      Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellant.
    Arnaldo Velez, Coral Gables, for appel-lee.
    Before SCHWARTZ, C.J., and WELLS and SHEPHERD, JJ.
   SHEPHERD, J.

This appeal is brought by the State of Florida following a dismissal of a criminal prosecution under Fla. R.Crim. P. 3.190(c)(4). We affirm.

Rafael Nunez (“Nunez”) is a businessman accused of perpetrating fraud on five groups of investors by selling them allegedly worthless code enforcement and minimum housing liens from a pool that his company, Collections USA (“Collections”), purchased from the City of Homestead in 1992. The original purchase price of the liens was a heavily discounted $70,000 for liens with a face value of $1,000,000. The City’s duties to Collections at closing and thereafter were minimal, consisting of an obligation to deliver the lien files, execute such documents as were needed to perfect title, and provide technical assistance in the form of a code enforcement officer as backup for Collections to substantiate and corroborate the violation.

By 1994, Collections was experiencing more difficulty than it apparently believed it should in collecting on the liens and contacted the City. During the next two years, the City took some ameliorative actions to assist Nunez who by then had assumed ownership of the company in collecting on some liens, but is claimed to have “dropped the ball” on others. In 1999 Collections sued the City alleging, inter alia, that it had failed to deliver bona fide liens and failed to execute all documents necessary for Collections to collect on them. The Homestead lawsuit reached our court, and we reversed on a statute of limitations issue, thereby allowing the civil suit to continue. See Collections USA, Inc. v. City of Homestead, 816 So.2d 1225 (Fla. 3d DCA2002).

In November 2002, on the heels of the suit against the City of Homestead, the State of Florida by information charged Nunez with first, second and third-degree grand theft, exploitation of the elderly or disabled, and perpetrating a scheme to defraud for knowingly selling allegedly bogus Homestead liens to the investor-victims herein during 1998 and the first half of 1999. In May 2003, Nunez filed a Corrected Sworn Motion to Dismiss under Fla. R.Crim. P. 3.190(c)(4), asserting that the liens he sold to the investors through Collections were valid. In support of his position, Nunez cited the pretrial examination of Homestead City Attorney, Michael Watkins, who testified in the civil action that to the best of his knowledge the liens were valid and properly recorded, and therefore presumably just as collectible by Collections as by the City.

In response, the State filed a Traverse highlighting Nunez 1999 deposition taken in the civil case, wherein Nunez testified generally that he was aware of problems with the Homestead liens as early as 1994. The State wishes to interpret this statement as clear knowledge by Nunez that all of the Homestead liens were invalid as early as 1994. However, all of the Homestead liens could not be worthless since Collections did materialize approximately $200,000 on some of them. In that vein, the State’s Traverse does not make clear what was actually sold to each investor, and whether the lien was worthless or potentially collectible. Similarly, the Traverse fails to articulate in any coherent fashion what representations were made to each investor, and why those statements were misrepresentations.

Our case law is quite clear that Fla. R.Crim. P. 3.190(c)(4) motions to dismiss are treated like summary judgment motions in civil cases. State v. Kalogeropolous, 758 So.2d 110 (Fla.2000). The purpose of such a motion is to test the legal sufficiency of the underlying case, i.e. whether there is a dispute of material fact (not just a dispute of unsupported conelu-sory allegations) or whether there exists a legal defense that would summarily decide the case. State v. Siegel, 778 So.2d 426, 427 (Fla. 5th DCA 2001); Kalogeropolous, 758 So.2d at 111. While, as in civil cases, the State is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant, this rule presumes that some evidence exists and that the State will provide this evidence in a clear and specific fashion to dispute the material facts posited by the defendant.

In this case, we have studied the States Traverse and we find that it is lacking. First, it is filled with unsupported conclusory allegations. Cf. Hembd v. Dauria, 859 So.2d 1238, 1240 (Fla. 4th DCA 2003) (fraud must not be “flung into [a] ease willy-nilly” by stating “legal conclusions”). Second, the Traverse fails to link the allegedly defective Homestead liens as being one and the same with those which were resold to investors, especially since it is undisputed that Collections realized some profits on the liens it had purchased from Homestead. Cf. Hembd at 1240 (“must clearly and concisely set out the essential facts of the fraud”). Third, the Traverse invites us to make negative conclusions based on the possibility of a signature dispute. Cf. Id. at 1240 (“the law required [the appellant] to demonstrate a prima facie case of fraud, not just nibble at the edges of the concept”). And fourth, it states that some of the liens were double sold without once identifying which ones and to whom and when. Cf. Robertson v. PHF Life Ins. Co., 702 So.2d 555, 556 (Fla. 1st DCA 1997) (“allegations of fraud [were not] pled with specificity [and] ... complaint fails to specifically identify misrepresentations or omissions of fact, the time, place or manner in which they were made, and how the representations were false and misleading”). It is the position of the State that so long as it merely disputes the allegations of a Defendants Sworn Motion to Dismiss, that this (c)(4) motion must be denied. We disagree. A Traverse requires more than a did not, did so swearing match. See generally Kalogeropolous, 758 So.2d at 111 (general denial insufficient). The State is required to specifically dispute the material facts alleged by defendant or add additional material facts that meet the minimal requirements of a prima facie case of guilt. Id.

Here, the State has not alleged fraud with the needed particularity. Just because Nunez may have been aware as early as 1994 that there were problems with some of the liens does not necessarily mean that all of the liens were flawed, or that Nunez knowingly resold a lien upon which he suspected an issue of collectibility. Similarly, just because a lien sold to an investor later becomes uncollectible is insufficient alone to establish a prima facie case of criminal fraud; it merely shows that an arguable contractual expectation was disappointed. As the trial court aptly suggested, the disputes between the investors and Collections here are more suited for resolution in a civil forum based upon the evidence presented. See Rodriguez v. State, 396 So.2d 798, 800 n. 7 (Fla. 3d DCA 1981) (a controversy between businessmen stemming from an honest dispute over funds “seems more appropriately the subject of a civil action than a criminal prosecution” for theft), citing Cooper v. State, 82 Fla. 365, 90 So. 375 (1921).

Affirmed.

      . At the time of the purchase Collections USA was owned and operated by Nunez’ brother, Alexander Nunez; Rafael Nunez had other full-time employment. Thus, Rafael was not personally involved in the original purchase.

      . As a result of its own efforts and with assistance from the City, Collections realized some $200,000 on the liens excluding the transactions entered into with the investors here.

      . In fact, the record indicates that one investor received liens not as part of a sale, but as back-up security collateral for monies he had lent to Collections USA, and that the investor himself actually picked out which liens he wanted as part of his security.

      . It is the "defendant’s burden to specifically allege and swear to the undisputed facts in a motion to dismiss and to demonstrate that no prima facie case exists upon the facts set forth in detail in the motion.” Siegel, 778 So.2d at 427. In this case, defendant Nunez has met that burden, but the State has failed to meet its burden in its Traverse.

      .The record however shows an equivocating investor who could neither identify nor remember if indeed he had signed a particular investment document at issue here.

      . In the civil context, considering the high, particularized threshold to state a claim for fraud, it is ironic that in the criminal context, the State sub judice would attempt to spin a fraud on so little here -where one s liberty as distinguished from one's pocketbook is at stake.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tomas A. PRIETO and Marta Prieto, Appellants, v. MIAMI LAKES CIVIC ASSOCIATION, INC., Appellee.
    No. 3D03-1834.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 2004.
    Tomas A. Prieto, in proper person.
    Ameli Padron-Fragetta, Miami, for ap-pellee.
    Before COPE, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Tomas A. Prieto and Marta Prieto appeal a final judgment in an action brought against them by the appellee homeowners association. We conclude that the appellants have failed to demonstrate any error in the proceedings which occurred in the trial court. See E & I, Inc. v. Excavators, Inc., 697 So.2d 545, 547 (Fla. 4th DCA 1997).

Affirmed.


author: PER CURIAM. COPE, J.

text:
    Wayne DOZIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3130.
    District Court of Appeal of Florida, Third District.
    Aug. 25, 2004.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for Appellee.
    Before SCHWARTZ, C.J., and COPE, and FLETCHER, JJ.
   PER CURIAM.

Wayne Dozier appeals a sentencing order entered pursuant to a plea bargain. The issue defendant-appellant Dozier seeks to raise on this appeal was not presented to the trial court, nor was it the subject of a reservation of the right to appeal, nor was the claimed error brought to the attention of the trial court by motion to correct sentencing error. See Fla. R.App. P. 9.140(b)(2)(A), (e); Williams v. State, 873 So.2d 1248, 1249-50 (Fla. 5th DCA 2004); Bogan v. State, 852 So.2d 444, 445 (Fla. 5th DCA 2003). The sentencing order is therefore affirmed.

COPE, J.

(concurring).

Although the issue is not now before us, I write separately to express my view of the merits. As I see it, Judge Crespo’s statement of the law was entirely correct and the position of defendant-appellant Dozier is without merit.

I.

The defendant entered a guilty plea to charges of racketeering, attempted racketeering, and sale of cocaine. The minimum sentence under the guidelines scoresheet was thirteen years. The State proposed a downward departure sentence of eight years in exchange for a guilty plea.

The defense wanted a split sentence of four years of incarceration followed by four years of probation, or five incarceration followed by three years of probation. The State would not agree to anything lower than eight years of incarceration.

The court explained to the defendant that with the concurrence of the State and the defense, the court could impose a downward departure sentence of eight years. Apart from a plea bargain, there were no other valid grounds for downward departure in the circumstances of the defendant’s case. The court explained that if it imposed (over State objection) the requested sentence of four or five years incarceration, then the State would appeal and the sentence would be reversed on appeal. The defense made no objection to the judge’s statement of the law, or any contrary argument regarding the judge’s sentencing discretion.

The court then said:

So it is not a question of me wanting to help you, or not wanting to help you, or wanting to help your family. Believe me, if it was up to me, I would not give you eight years.
But it is not up to me, because I have seen a lot of wors[e] people commit a lot of wors[e] crimes that haven’t gotten eight years.
But in your particular case, with all of the facts and circumstances that are surrounding your arrest and how this case arose, that is your guidelines, 13 years. I am going as far as I can below that to eight years. I can’t go down any lower....

R. 325.

After this discussion the defendant accepted the eight-year offer. The court conducted the customary plea colloquy and imposed the eight-year sentence.

The defendant has appealed, arguing that once the State agreed to the downward departure sentence of eight years, this meant that the judge was authorized to impose an even greater downward departure sentence. The defendant claims that the trial court could have imposed a four-year sentence. The defendant argues that once there is a downward departure, the extent of the departure is discretionary with the trial judge. Under the circumstances of this case the defendant’s analysis is incorrect.

II.

Under the Criminal Punishment Code, a trial court may enter a downward departure sentence where “[t]he departure results from a legitimate, uncoerced plea bargain.” § 921.0026(2)(a), Fla. Stat. (2000). A plea bargain is, of course, a contract and is governed by contract principles. See Clark v. State, 651 So.2d 1309, 1310 (Fla. 3d DCA 1995).

In order for there to be a plea agreement, there must be a meeting of the minds between the contracting parties— the State and the defendant — and the agreement must be approved by the trial court. See Fla. R.Crim. P. 3.71; Brown v. State, 367 So.2d 616, 622 (Fla.1979).

For there to be a legitimate reason for downward departure, there must actually be a plea bargain, that is, an agreement between the parties. If the trial court unilaterally deviates from the agreement and imposes a four-year sentence, there is no longer any agreement because the State has not agreed to the four-year sentence. If there is no longer an agreement then there is no longer a valid downward departure reason under paragraph 921.0026(2)(e), Florida Statutes.

The Second District has squarely addressed the issue now before us in State v. Hale, 682 So.2d 613 (Fla. 2d DCA 1996). The court said:

The State and Hale had entered into a plea agreement that called for a downward departure from the sentencing guidelines; however, the court did not impose the agreed upon sentence and instead imposed a different departure sentence. Because Hale’s actual sentence was not the result of a legitimate plea bargain, the written departure reason is not supported by the record. Accordingly, we reverse and remand with directions to the trial court to either impose the sentence negotiated between Hale and the State or allow Hale to withdraw his plea.

Id. at 614.

The defendant argues that his position is supported by State v. Aguilar, 775 So.2d 994 (Fla. 3d DCA 2000), but that case dealt with an entirely differently situation. In Aguilar there was no agreement on length of sentence. Instead, the plea bargain called for the defendant to plead guilty and leave sentencing up to the trial court. At sentencing, both parties argued for a downward departure, and the trial court imposed a sentence shorter than the one requested by the State. Writing in that context — a plea bargain which did not include an agreement on length of sentence — this court said, “Where the state and the defendant agree that a departure from the sentencing guidelines is appropriate, the extent of the departure is within the sound discretion of the trial judge.” 775 So.2d at 996 (citations omitted). The Aguilar decision has no application here, where the plea bargain was for an eight-year sentence.

The defense does not appear to have considered the ramifications of the position it advocates. If it were true that upon reaching a plea bargain for a downward departure sentence, the trial court may impose any sentence it chooses, this principle could operate to disadvantage the defendant just as well as the State. For example, in this case the guidelines minimum is thirteen years and the plea bargain is for eight years. If the defendant is correct that the trial court is not constrained by the terms of the approved plea bargain, then the trial court could impose, say, a twelve-year sentence despite the defendant’s objection. A twelve-year sentence would be a permissible sentence under the defendant’s theory, because twelve years is a downward departure from a thirteen-year sentence — but as the defendant would be quick to point out, his agreement was for eight years, not twelve years.

The analysis of the Second District in State v. Hale is correct. The defense argument here is incorrect.

      . The charged crimes occurred between January 1, 2003 and June 24, 2003.

      . There are times when the court itself will make an offer, but even in that situation there must be agreement, or at least acquiescence, by the parties.


text:
    AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC.; Jeanne Baker; Dr. Walter Bradley; Shoshana Baker-Bradley; Natasha Baker-Bradley; Planned Parenthood of North Central Florida, Inc.; and Planned Parenthood of Southwest and Central Florida, Inc., Appellants, v. Glenda E. HOOD, in her official capacity as Florida Secretary of State, and Dawn K. Roberts, in her official capacity as the Director of the Division of Elections, Appellees.
    No. 1D04-3693.
    District Court of Appeal of Florida, First District.
    Aug. 25, 2004.

      Larry Helm Spalding, . Tallahassee; Randall Marshall, Miami; and Rebecca H. Steele, Tampa, for appellants.
    Charlie Crist, Attorney General, and George Waas, Assistant Attorney General, Tallahassee, for appellees.
   CERTIFICATION OF APPEAL AS REQUIRING IMMEDIATE RESOLUTION BY THE SUPREME COURT OF FLORIDA

PER CURIAM.

House Joint Resolution 1, 2004, was passed by the requisite supermajority of both houses of the Florida Legislature. It calls for consideration by the electorate in the upcoming general election of a proposed amendment to the Constitution of Florida which would create Article X,- section 22:

Section 22. Parental notice of termination of a minor’s pregnancy. — The legislature shall not limit or deny the privacy right guaranteed to a minor under the United States Constitution as interpreted by the United States Supreme Court. Notwithstanding a minor’s right of privacy provided in Section 23 of Article I, the Legislature is authorized to require by general law for notification to a parent or guardian of a minor before the termination of the minor’s pregnancy. The Legislature shall provide exception to such requirement for notification and shall create a process for judicial waiver óf the notification.

Plaintiffs American Civil Liberties Union of Florida, Inc., Jeanne Baker, • and others filed a complaint in the Circuit Court for Leon County which sought declaratory and injunctive relief. According to plaintiffs, the ballot title and summary did not adequately communicate the effect of the proposed amendment,. The circuit court did not agree and dismissed the complaint with prejudice. Plaintiffs appeal.

The circuit court has issued a final order which would ordinarily be reviewable by direct appeal to this court. See Art. V, § 4(b)(1), Fla. Const.; Fla. R.App. P. 9.030(b)(1)(A). However, appellants suggest that this appeal should be certified as requiring immediate resolution by the Supreme Court of Florida, in accordance with Article V, section 3(b)(5) of our state constitution, and we have considered appel-lees’ response as authorized by Florida Rule of Appellate Procedure 9.125(d).

Our responsibility in this circumstance is to determine whether an appeal-able order has been issued, whether the issues presented in the appeal are of great public importance or are likely to have a great effect on the proper administration of justice throughout the state and whether “circumstances exist which require that the supreme court immediately resolve the issues, rather than permitting the normal appellate process to run its course.” Harris v. Coalition to Reduce Class Size, 824 So.2d 245, 246-47 (Fla. 1st DCA 2002).

As stated above, the circuit court has rendered a final, appealable order. On two prior occasions, the Florida Legislature enacted legislation on this subject and both were found to unconstitutionally interfere with a minor’s right to privacy. North Florida Women’s Health and Counseling Services, Inc. v. State, 866 So.2d 612 (Fla.2003); In re T.W., 551 So.2d 1186 (Fla.1989). The apparent intent of the proposed constitutional amendment is to remove this barrier to the legislature’s authority to require parental notification when a minor seeks termination of a pregnancy. In light of the long and contentious history of this issue in Florida and the widespread social impact of parental notification legislation, we must conclude that the instant litigation presents a question of great public importance which should be decided by this state’s highest court.

Finally, as to the need for immediate resolution, the general election will be held on November 2, 2004, and therefore absentee ballots must be printed and mailed no later than September 17, 2004, in accordance with section 110.62(4)(a), Florida Statutes. There is insufficient time for this court to provide a first-tier review prior to the issues being heard by the Supreme Court of Florida.

We therefore hereby certify that the issues pending in this case are of great public importance requiring immediate resolution by the Supreme Court of Florida.

WOLF, C.J., KAHN and WEBSTER, JJ., concur.


text:
    Corey S. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3496.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.

      James P. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Christ, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Corey S. Jackson [“Jackson”] appeals an order revoking his probation, contending the affidavit of violation on which it was based was defective. We agree and reverse.

Jackson pled guilty to misdemeanor possession of cannabis and was given probation. He was later charged with multiple violations. The “Affidavit of Violation” signed by his probation officer set forth the facts constituting the violations, and at the end contained the following statement:

Under penalties of perjury, I declare that I have read the foregoing facts and that the facts stated in it are true to the best of my knowledge and belief.

A warrant was issued based on the affidavit, and Jackson was arrested.

Jackson filed a motion to dismiss, arguing that his arrest was illegal because the charging document had not been sworn to under oath before a person authorized to administer oaths. The court denied the motion to dismiss, and Jackson pled nolo contendere to the violations, reserving his right to appeal.

Jackson contends that it was error to revoke his probation because the charging document was not sworn to under oath before a person authorized to administer oaths, such as a notary public. His argument that the document had to be sworn to before an authorized person is based on the requirement that an “affidavit” must be used to allege a violation. This requirement is set forth in section 948.06(1), Florida Statutes (2002), which states:

Any committing magistrate may issue a warrant, upon the facts being made known to him or her by affidavit of one having knowledge of such facts, for the arrest of the probationer or offender, returnable forthwith before the court granting such probation or community control, [emphasis added.]

See also Art. I, § 12, Fla. Const.

By definition, “an affidavit” is a written or printed declaration or statement of facts, made under oath, before a person having authority to administer such oath or affirmation. See Youngker v. State, 215 So.2d 318 (Fla. 4th DCA 1968). This fact is implicitly recognized in section 92.50, Florida Statute (2002), which sets forth the persons who have the authority to administer “oaths, affidavits, and acknowledgments.” They include “any judge, clerk, or deputy clerk of any court of record within this state, including federal courts, or before any United States commissioner or any notary public within this state.” Id.

We recognize that the charging document was “verified” pursuant to 92.525, Florida Statutes. However, a charging document “verified” by the probation officer “under penalty of perjury” is not the “affidavit” required by section 948.06(1), Florida Statutes (2002). Both documents would support a prosecution for perjury, but the latter must be sworn to before a person authorized to administer oaths. Accord Op. Att’y Gen. Fla. 95-40 (1995)(document verified under section 92.525 is not affidavit within meaning of section 322.2615(2), if not attested to before an officer authorized to administer oaths). There is a solemnity inherent in requiring a probation officer to attest to a violation before a duly authorized officer which is absent when a written verification is used, which may be the basis for the requirement.

We express no view about whether our state constitution requires an affidavit to commence a revocation of probation proceeding; it is enough that the legislature has seen fit to require it. Because Jackson’s arrest was not based on an “affidavit,” the order violating his probation is vacated, and the case is remanded to the trial court with instructions to grant his motion to dismiss. The State may again proceed against Jackson by filing a proper affidavit of violation, if it chooses to do so. See Alba v. State, 541 So.2d 747 (Fla. 3d DCA 1989).

ORDER VACATED and REMANDED.

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.

      . Accord Black's Law Dictionary 54 (5th ed,1979)(an ''affidavit” is ''[a] written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation”); 1 Fla. Jur.2d Acknowledgments, Affidavits, Oaths, and Notaries § 31 (West 1997) ("An affidavit is any voluntary ex parte statement reduced to writing and sworn to or affirmed before some person legally authorized to administer an oath or affirmation. More succinctly, it has been defined as a statement in writing under an oath administered by a duly authorized person.”).

      . See State v. Johnston, 553 So.2d 730 (Fla. 2d DCA 1989) and § 92.525(3), Fla. Stat. (2002).

      . We do not believe our holding is in conflict with Goines v. State, 691 So.2d 593 (Fla. 1st DCA 1997), in which the appellant sought review of an order revoking her community control. It is unclear from Goines whether the appellant ever specifically argued that the charging document had to be sworn to before a person authorized to administer oaths. The Goines court characterized the argument as one that the charging document had to be sworn to under "oath.” It then held that the "affidavit” prepared by the appellant’s community control officer and used to support a violation was under "oath” because it contained the "under penalty of perjury" statement set forth in section 92.525, Florida Statutes. A charging document can be under "oath” within the meaning of section 92.525, and still not qualify as an "affidavit” under section 948.06(1).


author: DAVIDSON, L., Associate Judge.

text:
    LAWYERS TITLE INSURANCE CORPORATION, Appellant/Cross-Appellee, v. Benny A. WELLS and Kathy Wells, Appellees/Cross-Appellants.
    No. 5D03-1346.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.

      M. Bradley Luczak & Christian J. Gen-dreau of Sobering, White & Luczak, P.A., Winter Park, for Appellant/Cross-Appel-lee.
    Kelvin L. Averbuch, Lake Mary, for Ap-pellees/Cross-Appellants.
   DAVIDSON, L., Associate Judge.

Lawyers Title Insurance Corporation (“Lawyers Title”) appeals the amended final summary judgment entered in favor of Benny and Kathy Wells (collectively, “the Wellses”) on Lawyers Title’s declaratory judgment action and the Wellses’ breach of contract counterclaim. We reverse the amended summary final judgment in favor of the Wellses and remand for entry of summary judgment in favor of Lawyers Title. As this case involves the entry of summary judgment, our standard of review is de novo. Krol v. City of Orlando, 778 So.2d 490, 491 (Fla. 5th DCA 2001).

The facts of this case are undisputed. The Wellses made a $65,000 loan to Theresa Fogarty. In exchange, Fogarty executed and delivered a promissory note memorializing the loan. The promissory note, dated April 18, 2001, provided that Fogarty would repay the Wellses as follows: “Principal and interest payment in the amount of $70,000.00, shall be due and payable in full on May 19, 2001.” Fogarty also executed and delivered to the Wellses a mortgage deed to secure the loan with property that had purportedly been conveyed to her by her mother-in-law, Doris Clay.

On April 20, 2001, Lawyers Title issued a Loan Policy of Title Insurance (“the title policy”) to the Wellses for $65,000. Fogarty defaulted under the note and mortgage by failing to pay the principal and interest when they came due. After the Wellses obtained a final judgment of foreclosure, Clay came forward and contended that the warranty deed from her to Fogarty was a forgery. Faced with this problem, the Wellses then demanded payment from Lawyers Title under the title policy based on the questioned signature of Clay on the warranty deed.

Lawyers Title filed a declaratory judgment action against the Wellses regarding its obligations, if any, pursuant to the title policy. The Wellses counterclaimed against Lawyers Title for breach of contract. Both parties filed motions for summary judgment. The trial court denied Lawyers Title’s summary judgment motion and granted that of the Wellses. The trial court found that the loan agreement between Fogarty and the Wellses contained both legal and illegal terms, refused to enforce the illegal usurious portion of the agreement, but enforced the remainder of the agreement requiring the repayment of the principal amount borrowed of $65,000.

We conclude that the trial court erred. Section 687.071(3), Florida Statutes (2003), provides that anyone who willfully and knowingly charges, takes, or receives interest at a rate exceeding 45% per annum, or the equivalent rate for a longer or shorter period of time, is guilty of a third degree felony. Any person who lends money contrary to section 687.071(3) is by definition a “loan shark.” § 687.071(l)(f), Fla. Stat. (2003). Section 687.071(7) provides that, “No extension of credit made in violation of any of the provisions of this section shall be an enforceable debt in the courts of this state.” The interest rate charged on the instant loan is approximately 92.3% per annum, which is clearly criminally usurious pursuant to section 687.071(3), Florida Statutes, and unenforceable according to section 687.071(7). Moreover, the title policy expressly excluded coverage for defects or adverse claims for invalidity or unenforceability of the lien of the insured mortgage based upon usury:

The following matters are expressly excluded from the coverage of this policy and [Lawyers Title] will not pay loss or damage, costs, attorneys’ fees or expenses which arise by reason of:
* * *
5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law.

Notwithstanding the foregoing, the Wellses argue that Title & Trust Co. of Florida v. Parker, 468 So.2d 520 (Fla. 1st DCA 1985), supports the trial court’s decision. We disagree. While Parker contains language that a court may, in some instances, give effect to legal terms of a contract and refuse to give effect to illegal terms of the same contract, the policy in Parker did not contain the same exclusion for usurious loans as the title policy at issue here.

Because the Wellses did not have a lawful interest in the loan, they had no insurable interest. An unenforceable usurious loan cannot give rise to an insurable interest. Without an insurable interest in the loan, the Wellses could not enforce the title policy pursuant to section 627.405(1), Florida Statutes. Focus Inv. Assocs., Inc. v. Am. Title Ins. Co., 992 F.2d 1231 (1st Cir.1993); Phalen Park State Bank v. Reeves, 312 Minn. 194, 251 N.W.2d 135 (1977); Lawyers Title Ins. Co., Inc. v. Novastar Mortgage, Inc., 862 So.2d 793 (Fla. 4th DCA 2003).

The Amended Summary Final Judgment in favor of the Wellses is reversed. This cause is remanded to the trial court with instructions to enter summary judgment in favor of Lawyers Title.

REVERSED AND REMANDED.

PLEUS and MONACO, JJ., concur.

      . The amended summary final judgment rendered in favor of the Wellses, merely changed the post-judgment interest rate in the final summary judgment from 10% to 6%.

      . Section 627.405, Florida Statutes, provides in pertinent part:
      (1) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured as at the time of the loss.
      (2) "Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.


text:
    Jimmy RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3685.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Jimmy Rodriguez, Cocoa, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

Jimmy Rodriguez seeks rehearing and withdrawal of this court’s affirmance. The motion for rehearing is denied.

On 8 November 2001, Rodriguez pleaded guilty to burglary of a dwelling and grand theft, and was sentenced to concurrent ten-year terms of incarceration. On 28 November 2001, Rodriguez filed a notice of appeal, and a public defender was appointed to represent him. On 20 February 2002, the public defender filed an An-ders brief and a motion to withdraw as counsel. On 21 February 2002, this court entered an order permitting Rodriguez to file a response to the motion to withdraw and to file a pro se brief with this court.

Instead of responding to this court, on 26 April 2002, Rodriguez, who was still represented by counsel, filed a pro se motion seeking correction of his sentence in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Rodriguez also filed a notice with this court of the filing of his Rule 3.800(b)(2) motion in the trial court. On 24 May 2002, the public defender filed a “notice and suggestion that pro se motion be forwarded to sentencing judge” in the circuit court. The notice suggested that Rodriguez was authorized to file a pro se Rule 3.800(b)(2) motion because we granted Rodriguez leave to file a pro se brief in the direct appeal.

On 11 June 2002, we affirmed Rodriguez’s convictions and sentences without opinion. On 12 June 2002, this court granted the public defender’s motion to withdraw as counsel for Rodriguez. Thereafter, on 21 June 2003, the trial court granted Rodriguez’s pro se Rule 3.800(b) motion.

Rodriguez now seeks rehearing of the affirmance on direct appeal. Rodriguez argues that because the affirmance was issued prior to the trial court’s ruling on the Rule 3.800(b) motion, this court’s affir-mance should be amended to reflect an entry date after the trial court’s order granting relief so that the order will be effective.

The motion for rehearing is denied for two reasons. First, the motion filed with the trial court was not authorized under Rule 3.800(b). Rule 3.800(b)(2) authorizes the filing of a motion to correct a sentencing error while an appeal is pending. However, any such motion must be filed before the party’s first brief is served. See Fla. R.Crim. P. 3.800(b)(2). Because Rodriguez’s counsel filed an initial brief before Rodriguez filed his pro se motion, it was unauthorized.

Second, the Rule 3.800(b) motion was a legal nullity because Rodriguez was represented by counsel at the time he filed the motion. In Lee v. State, 779 So.2d 341 (Fla. 2d DCA 2000), the district court addressed the issue of a motion filed pro se by an appellant who is represented by counsel. The court stated:

We believe that while the rule’s use of the permissive word “may” might be intended to allow for the cooperative filing of the motion and notice by trial counsel and appellate counsel, the supreme court never envisioned authorizing pro se filings in this instance when individuals are represented by counsel.

Id. at 342, n. 2.

The trial court should have stricken the motion because Rodriguez enjoyed “the advantages of appointed counsel on his appeal.” Id. at 342. Although the public defender filed its motion to withdraw as counsel, Rodriguez was not authorized to file pro se motions until this court ruled on the pending motion to withdraw. Rodriguez filed his pro se motion with the trial court before this court granted the motion to withdraw. Hence, Rodriguez’s pro se Rule 3.800(b) motion was unauthorized and a legal nullity. There is an exception to this general rule. Where there is antipathy between a defendant and his counsel, and the defendant seeks to represent himself and discharge his counsel, the defendant has that right as long as the record is clear that his intent is unequivocal. Logan v. State, 846 So.2d 472 (Fla.2003); Lewis v. State, 766 So.2d 288, 289 (Fla. 4th DCA 2000). Otherwise, the defendant has no right to represent himself while represented by counsel. Id. at 476 (citing Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980)). Accordingly, we deny Rodriguez’s motion for rehearing without prejudice to his seeking appropriate remedies to correct sentencing errors, if any.

MOTION FOR REHEARING DENIED.

GRIFFIN, THOMPSON and TORPY, JJ., concur.

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

      . Motion Pending Appeal. If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party's first brief is served. A notice of pending motion to correct sentencing error shall be filed in the appellate court, which notice automatically shall extend the time for the filing of the brief until 10 days after the clerk of circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(e)(6).
      (Emphasis supplied).


author: PLEUS, J.

text:
    Ronald GRIZZARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3714.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.

      James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca R. McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

The defendant appeals from an order revoking his probation and sentencing him to 30 years imprisonment. The defendant argues that the trial court erred in revoking probation absent sufficient proof that he willfully violated a condition of his probation.

The trial court considered the defendant’s nolo contendere plea to the charge of driving while license suspended/knowingly as res judicata in the probation revocation proceeding. We conclude that the court committed legal error when it gave res judicata effect to the nolo plea and conviction entered pursuant thereto and accordingly, reverse.

The defendant pled guilty to conspiracy to traffic in cocaine, a first degree felony. The court imposed a 30 year prison term which was suspended, in lieu of a five year term of probation. In connection with imposition of the sentence, the defendant’s driver’s license was suspended but the sentencing order states: .“The Court has no objection to ' a Business Purposes Only Permit.”

The defendant obtained a driver’s license with a “C” restriction which allowed him to drive to and from his place of employment. . Thereafter, the defendant was stopped by a police officer in Hillsbor-ough County. The defendant displayed his Florida driver’s license. The officer ran the license on his computer and advised the defendant that his license had been suspended. The defendant informed the officer that while his license had been suspended until 2004, he had been issued a hardship license that says “business purpose only” and that he was driving to work. The officer ran the license again and advised that there was some confusion. The officer did not arrest the defendant, nor seize his license, but instead issued him a written citation requiring him to appear in Hillsborough County court.

The defendant appeared in Hillsborough County court and entered a plea of no contest to the charge of driving while license suspended with knowledge. § 322.342, Fla. Stat. (2003).

At the revocation hearing, the State relied on the Hillsborough County court conviction for driving while license suspended/knowingly. The defendant claimed he possessed a valid business purposes license and was on his way to work when he was stopped. The trial court ruled that given the Hillsborough County driving while license suspended/knowingly conviction, a willful and substantial violation of probation had been established. The court announced “it would seem to me, it’s res judicata at this point.” The court added that if the defendant was able to get the Hillsborough County conviction set aside, the court would vacate the revocation. There was an indication at the revocation hearing that the defendant’s nolo plea had been tendered without the benefit of counsel.

The State has the burden of proving by the greater weight of the evidence that the defendant committed a willful and substantial violation of a term of probation. State v. Carter, 835 So.2d 259 (Fla.2002); Woodson v. State, 864 So.2d 512 (Fla. 5th DCA 2004). The trial court has broad discretion to determine whether there has been a willful and substantial violation and whether the State has met its burden of proof. Woodson. In reviewing a trial court’s order revoking probation, an abuse of discretion standard applies. Id. In Woodson, this Court explained:

“That is, the appellate court must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [the] violation was both willful and substantial.” Carter, 835 So.2d at 262 (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). Application of this standard is premised on the generally accepted notion that the defendant’s motive, intent, and attitude are best identified by the trial court when determining whether the violation is both willful and substantial. Carter.

864 So.2d at 514.

The defendant argues that the State failed to prove that he knowingly drove without a valid license; that the Hillsbor-ough County court was never asked to make such a determination. He adds that he possessed a license which on its face was valid.

Section 322.34(2), Florida Statutes (2003), provides:

Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law ... who knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon: (a) A first conviction is guilty of a misdemeanor ....

A conviction entered upon a nolo contendere plea, standing alone, can constitute a sufficient basis upon which to revoke probation. Maselli v. State, 446 So.2d 1079 (Fla.1984). In Maselli, the supreme court, in approving the Second District’s decision in Maselli v. State, 425 So.2d 176 (Fla. 2d DCA 1983), explained:

The judge may rely on the conviction even if it was imposed pursuant to a plea of nolo contendere. A plea of nolo con-tendere relieves the state of its burden of proving the factual allegations of the indictment or information. Bell v. State, 369 So.2d 932, 934 (Fla.1979); Chesebrough v. State, 255 So.2d 675 (Fla.1971); cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972). The record of such a conviction speaks for itself. Of course, as the district court indicated, the probationer must be provided an opportunity to be heard on the question of whether he is guilty of the charge to which he pleaded no contest.

446 So.2d at 1080-81.

In the Second District’s opinion, the court had explained that before a judge accepts a nolo plea, the judge must determine that the plea is voluntarily entered and that a factual basis for the plea exists. See Fla. R. Crim P. 3.172. There may be many reasons why a defendant elects to tender a nolo plea, the court suggested, but if a judgment of guilt is entered upon the plea we must assume that the conviction is valid unless it is set aside. 425 So.2d at 177.

In the instant case, the defendant, despite his nolo plea, professed his innocence of the driving while license suspended/knowingly charge. While the conviction obtained pursuant to the plea could support revocation, the concern in this case is that the trial court felt bound by the conviction and believed it could not go behind the nolo plea to consider whether the defendant was in fact guilty of the offense of driving while license suspended/knowingly. In other words, the court believed the Hillsborough County conviction was res judicata in the revocation proceeding. It was not, however, for as the supreme court in Maselli stated, a defendant who is convicted pursuant to a plea of nolo contende-re may nevertheless contest his guilt in the probation revocation proceeding.

In Topps v. State, 865 So.2d 1253 (Fla.2004), the supreme court explained that “a ruling must be ‘on the merits’ for an issue to have been truly ‘decided’ ” and thus, to invoke the principle of res judica-ta. 865 So.2d at 1256. A plea of nolo contendere does not admit the allegations of the charge in a technical sense, but rather says that the defendant does not choose to defend. Vinson v. State, 345 So.2d 711 (Fla.1977). Indeed, a plea of nolo contendere, unlike a guilty plea, is not admissible in a civil proceeding. § 90.410, Fla. Stat. (2003). This is because a nolo plea represents the defendant’s unwillingness to contest the charge against him and is not an admission of guilt. See Kelly v. Dep’t of Health & Rehab. Serv., 610 So.2d 1375 (Fla. 2d DCA1992).

In summary, a conviction obtained pursuant to a plea of nolo contendere can support a revocation of probation. However, in this case, the trial court erred in announcing that the defendant’s nolo plea in the Hillsborough County driving while license suspended/knowingly prosecution was binding and conclusive on the issue of whether the defendant was in fact guilty of that charge. The defendant denied the charge at the revocation hearing and the court was not precluded from determining that the defendant was not, in fact, guilty of the offense. The cause is remanded for reconsideration upon application of the correct rule of law.

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.

      . The defendant also pled no contest to the charges of attached tag not assigned and failure to register motor vehicle, but of these charges, only the driving while license suspended conviction was alleged as a basis for revocation of the defendant's probation which was predicated on condition 5 of probation requiring the defendant to live and remain at liberty without violating any law. An amended affidavit was filed alleging that the defendant violated his probation by visiting places where drugs are unlawfully sold or dispensed and used cocaine. These two grounds were dismissed during the revocation hearing when the State offered no evidence relative to them.


author: SAWAYA, C.J.

text:
    RANGER CONSTRUCTION INDUSTRIES, INC., Appellant, v. MARTIN COMPANIES OF DAYTONA, INC., et al., Appellees.
    No. 5D02-4056.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.

      Jack J. Aiello and Paul A. Turk, Jr. of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for Appellant.
    John H. Dannecker of Shutts & Bowen, Orlando, for Appellees.
    Kimberly A. Ashby of Akerman Senter-fitt, Orlando, for Appellees.
   SAWAYA, C.J.

Ranger Construction Industries, Inc. appeals the final summary judgment entered in favor of Martin Companies of Daytona, Inc., Martin, Ward & Martin, Inc., Robert Martin, Robert Ward, and Richard Martin (collectively “Martin”) on the third-party complaint filed by Ranger against Martin. Ranger argues that the trial court erred by essentially dismissing its third-party complaint against Martin with prejudice, contending that Ranger’s third-party claim complied with the Florida Rules of Civil Procedure and that even if the claim was defective, the trial court should have granted Ranger at least one opportunity to amend the pleading.

Prior to 1997, Ranger and Martin were separate entities engaged in, among other things, road building and site development projects. Martin had performed work on Phases II and III of a manufactured home community project in Ormond Beach owned by Aberdeen at Ormond Beach, L.P. In late 1997, Ranger purchased the assets of Martin pursuant to an Asset Purchase Agreement (APA) that governed the transaction. In December 1998, approximately one year after execution of the APA, Ranger entered into a contract with Aberdeen to perform work on Phase III of the project. When Ranger completed its work, Aberdeen refused to pay the full amount due, which prompted Ranger to file an action to obtain a lien and payment of the balance. Aberdeen’s response to the suit was a counterclaim that alleged that Ranger had performed defective work on the project. The counterclaim was the impetus for Ranger’s third-party complaint against Martin based on the indemnity provisions of the APA. The third-party complaint consisted of two counts: one alleged common law indemnity, which is not at issue in these proceedings, and the other asserted contractual indemnity, which is the basis of the instant proceedings.

Attached to the third-party complaint was a copy of the APA, which sets out in Article V the indemnification provisions. Specifically, section 5.1 states that Martin

shall jointly and severally indemnify, defend and hold harmless the Buyer [Ranger] ... from and against any direct or indirect damage, claim, loss, cost or expense suffered (or deemed suffered, as hereinafter provided) by the Buyer, in whole or in part, as a consequence of:
(1) the Retained Liabilities;
(2) any breach or violation by the Sellers of the representations or warranties of the Sellers in this Agreement or any certificate or instrument delivered at the Closing; and
(3) any other breach or violation of this Agreement by the Sellers.

“Retained Liabilities” is defined in the APA to include “all liabilities of the Sellers in respect of customer warranty claims and products liability claims on products shipped and services provided on or prior tp the Closing Date.” Section 5.1 also made Martin liable for

all costs, expenses and reasonable attorneys’ and paralegals’ fees (including those for arbitrations, trials, appeals and administrative and bankruptcy proceedings) incurred by the Buyer in connection with the defense of any third party claim asserted against the Buyer [but only to the extent that the Sellers shall not provide a timely defense thereto as contemplated by Subsection 5.1(c) hereof] and (B) all costs, expenses and reasonable attorneys’ and paralegals’ fees (including those for arbitrations, trials, appeals and administrative and bankruptcy proceedings) incurred by the Buyer in connection with the enforcement against the Sellers of the Buyer’s indemnity rights under this Agreement.

Martin moved for summary judgment on both counts of the third-party complaint. It was successful in obtaining judgment on the common law indemnity claim (Count II). That ruling is not challenged. Martin subsequently filed a renewed motion for summary judgment seeking judgment on Count I, the contractual indemnity claim. Towards the end of the hearing on the renewed motion, the trial court inquired whether Ranger had alleged any breach of warranty by Martin. Ranger admitted that it may not have used the word “warranty,” but asserted that the facts alleged described a breach of warranty under the APA. Martin stepped up and labeled the court’s query as “interesting” because nowhere was there a claim that Martin had breached its warranty as defined in the retained liability section of the APA. The court concluded the hearing by granting summary judgment in Martin’s favor:

I’m going to grant the motion and the basis for that is that the contract, article five, describing indemnity, the specific area we’re dealing with is retained liability.
The definition of a retained liability, I’ve read it and it goes on, the only area I see that possibly could apply would be, all liabilities of the sellers in respect to customer warranty claims and product liability claims on the products shipped and services provided on or prior to the closing date, but Count I, the contractual liability, talks about — does not really describe any warranty.
I could not see any warranty referenced in any of the allegations of the third party complaint. I do see in paragraph 47 the allegation of Ranger being solely, vicariously or constructively or derivatively liable, and I can’t stretch this to show how these facts would fit such liability. Anyway, I think what I’m going to do is just grant the motion.

Ranger requested leave to amend so that it could properly allege warranty and remove the derivative statement. The court denied the request. The summary final judgment rendered by the trial court stated that “Ranger shall not have leave to amend its pleadings to state additional or restated causes of action against the Martin Parties because this Court finds it is too late in the proceedings to do so. Ranger shall take nothing by this action as against the Martin Parties.”

The basis for the trial court’s ruling was that Ranger failed to plead or make appropriate reference to a warranty in the third party complaint and, therefore, it failed to state a cause of action upon which relief could be granted. Ranger contends that it was error for the trial judge to base its ruling on such a hyper-technical pleading requirement and that its third-party complaint did properly plead a cause of action for indemnity against Martin. We agree.

Unlike the pleading requirements in the federal courts where notice pleading is the prevailing standard, the Florida Rules of Civil Procedure require fact pleading. See Continental Baking Co. v. Vincent, 634 So.2d 242, 244 (Fla. 5th DCA 1994). However, while a complaint must allege sufficient facts to properly state a cause of action, the Florida courts long ago abandoned the intricate maze and complex structure of common law and equity pleading whereby the preparation of complaints and answers devolved into a rather unique and abstruse science, as though the correct manner of framing a litigant’s allegations in writing was an end in itself. These rules were so venerated by some courts and crafty pleaders that a departure from any one of them could prove fatal and deprive an unwary but otherwise deserving litigant of rights actually due him or her. The ferment created by strict adherence to these technical rules aroused the courts in most jurisdictions to simplify procedure to reduce technicalities to a minimum and adopt procedural rules that allowed cases to be decided on their merits as expeditiously as possible.

In Florida, “[fjorms of action and technical forms for seeking relief and of pleas, pleadings, or motions are abolished.” Fla. R. Civ. P. 1.110(a). The rules of civil procedure further provide that “[a] pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, must state a cause of action and shall contain ... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief....” Fla. R. Civ. P. 1.110(b). Therefore, rather than intricate and complex allegations designed to plead a litigant to victory, brevity and clarity in the statement of the essential facts upon which the claim for relief rests are the hallmarks of good pleading. Hence, pleading is not an end in itself; rather, it is the means by which justice is achieved.

Perhaps under the common law rules, an affirmance of the final summary judgment would be appropriate. However, we conclude that the third-party complaint filed by Ranger in the instant case meets the pleading requirements of the Florida Rules of Civil Procedure and alleges sufficient facts to properly state a claim of contractual indemnity. Moreover, as we have noted, Ranger attached a copy of the APA to its complaint and Martin knew that the claim for indemnity was based on that agreement. Additionally, Ranger’s third-party complaint alleged the necessary facts with sufficient particularity to allow Martin to prepare a proper defense. See Horowitz v. Laske, 855 So.2d 169, 173 (Fla. 5th DCA 2003). Failure to specifically allege or reference warranty in the third-party complaint is not a pleading error and it may not form the basis for summary judgment in favor of' Martin.

Martin alternatively contends that summary judgment was appropriate because Ranger was not sued by Aberdeen in respect to a warranty claim under the APA relating to work performed under the construction contract between Martin and Aberdeen; rather, Ranger was sued solely for breach of the construction contract it entered into with Aberdeen. We disagree because Martin’s argument incorrectly focuses on the allegations of Aberdeen’s complaint, which avers that Aberdeen believed that Ranger was liable. The purpose of third-party pleading is to allow a defendant to bring into the suit the party “who is or may be liable to the defendant for all or part of the plaintiffs claim against the defendant-” Fla. R. Civ. P. 1.180(a). The third-party plaintiff — the defendant in the initial suit — is not bound by the allegations of the plaintiff as to who was negligent or liable. Therefore, we reject Martin’s argument that Aberdeen’s allegations that Ranger was liable thereby exonerate Martin from third-party liability. Accordingly, we conclude that the basis for the summary judgment in favor of Martin was legally flawed, and it must be reversed. We note parenthetically that this case proceeded to trial without Martin and a verdict was rendered in favor of Ranger. Hence, Ranger is apparently pursuing its rights in this appeal so that it may recover its fees and costs from Martin under section 5.1 of the APA quoted earlier. This does not change our analysis or conclusion. We express no opinion on the merits of Ranger’s indemnity claim. We simply hold that the basis for the trial court’s summary judgment was legally incorrect. Whether Ranger will be able to establish that it was entitled to indemnity under the terms of the APA, and hence assert its right to recover its costs and fees from Martin, is a matter to be resolved by the trial court upon remand.

REVERSED and REMANDED.

SHARP, W. and TORPY, JJ., concur.

      . Ranger also argues that the basis on which the trial court dismissed the third-party complaint was not raised in the motion for summary judgment and was thus not a proper basis for the court's ruling. Ranger further contends that even if its contractual indemnity claim could not properly be pursued as a third-party claim, the trial court lacked discretion to terminate the claim with prejudice. Our resolution of the issue we address in this opinion renders these issues moot.

      . Even if this was a proper basis to grant summary judgment, Ranger should have been allowed to amend its third-party complaint regardless of the fact that the motion to amend was made at the summary judgment hearing. See Yun Enters., Ltd. v. Graziani, 840 So.2d 420, 422-23 (Fla. 5th DCA 2003) ("A party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment.”) (citing Cardona v. Benton Exp., Inc., 804 So.2d 505 (Fla. 3d DCA 2001); Assad v. Mendell, 550 So.2d 52 (Fla. 3d DCA 1989)); Gate Lands Co. v. Old Ponte Yedra Beach Condo., 715 So.2d 1132, 1134-35 (Fla. 5th DCA 1998) (noting that even though Gate Lands had not sufficiently stated a claim for common law indemnity and it was unclear whether it even could, "we cannot ignore the fact that Gate Lands made an ore tenus motion at the summary judgment hearing to amend its amended third party complaint to state a cause of action for common law indemnity against the Third Party Defendants”; holding that the trial court abused its discretion in refusing to allow amendment); Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Aviation Mgmt. of Cent. Fla., Inc., 637 So.2d 968, 970 (Fla. 5th DCA 1994) (observing, "Leave to amend should be freely given, the more so when a party seeks such a privilege at a hearing on a summary judgment motion and when the amendment is based on the same conduct, transaction and occurrence upon which the original claim was brought.”) (citing Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So.2d 137, 141 (Fla. 3d DCA 1977)); B.P. Dev. & Mgmt. Corp. v. P. Lafer Enters., Inc., 538 So.2d 1379 (Fla. 5th DCA 1989).

      . L.M. Duncan & Sons, Inc. v.. City of Clear-water, 478 So.2d 816 (Fla.1985) (holding that where plaintifFcontractor’s employee alleged that city was solely negligent in allowing injury to occur, city could properly bring third-party action naming contractor as the actively negligent party and seek contractual indemnity from the contractor); Sunspan Eng'g & Constr. Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4, 7 (Fla.1975) (observing that third-party actions are a "procedural mechanism to settle all related rights and liabilities in pertinent litigation at one time”); Welch v. Complete Care Corp., 818 So.2d 645 (Fla. 2d DCA 2002) (“A party seeking indemnity is not locked in by the injured person's allegations against it in the underlying lawsuit.”) (citations omitted); Safecare Med. Ctr. v. Howard, 670 So.2d 1020, 1023 (Fla. 4th DCA 1996); Okuboye v. Hubert Rutland Hosp., 466 So.2d 342, 343 (Fla. 2d DCA) (holding that with respect to indemnity actions, the negligence of the party seeking indemnity is not established solely by the allegations in the injured party’s complaint), pet. for'review denied, 476 So.2d 674 (Fla.1985).


author: ORFINGER, J.

text:
    Ronald MALAVE, Appellant, v. DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee.
    No. 5D02-3705.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.

      Ronald Malave, Coto Laurel, Puerto Rico, Pro Se.
    Pamela H. Page, Department of Health, Tallahassee, for Appellee.
   ORFINGER, J.

Ronald Malave, a medical doctor, appeals a final order of the Board of Medicine (Board) revoking his license to practice. Dr. Malave, a psychiatrist, treated J.P. for about five years for multiple personality disorder and schizophrenia. After J.P. complained that Dr. Malave had engaged in sexual activity with her, the Department of Health (Department) suspended his license to practice medicine on an emergency basis. Subsequently, the Department filed an administrative complaint seeking to revoke his license, alleging that Dr. Malave had violated (1) section 458.331(l)(j), Florida Statutes (2002), by exercising influence in a patient-physician relationship for purposes of engaging a patient, J.P., in sexual activity; (2) section 458.331(l)(x) by violating the provisions of chapter 458, Florida Statutes (2002), which prohibit sexual misconduct; and (3) section 458.331(l)(t), Florida Statutes (2002), by failing to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

About the same time the administrative complaint was filed, the State instituted criminal proceedings against Dr. Malave arising from his treatment of J.P. On appeal, Dr. Malave contends that the administrative law judge (ALJ) abused her discretion when she refused his third request for a continuance of the final administrative hearing pending resolution of the criminal case, and further abused her discretion when, following the conclusion of the criminal case, she allowed Dr. Malave to reopen the administrative proceeding solely for the purpose of presenting his testimony, but refused to allow him to present evidence in support of his defense. Concluding that the ALJ did not abuse her discretion, we affirm.

Our review of the Board’s order, accepting and adopting the ALJ’s findings of fact and conclusions of law, is governed by section 120.68, Florida Statutes (2002). See Legal Envtl. Assistance Found, v. Clark, 668 So.2d 982 (Fla.1996). A reviewing court may set aside agency action only when it finds that the action is dependent on findings of fact that are not supported by substantial competent evidence in the record, material errors in procedure, incorrect interpretations of law, or an abuse of discretion. § 120.68(7), Fla. Stat. (2002). When factual findings are reviewed, the court must not substitute its judgment for that of the agency in assessing the weight of the evidence or resolving disputed issues of fact. See § 120.68(10), Fla. Stat. (2002).

Dr. Malave sought his third continuance of the administrative hearing because of his reluctance to testify while the criminal matter was pending due to his Fifth Amendment privilege. The ALJ denied Dr. Malave’s third request for a continuance, and the administrative hearing took place with Dr. Malave and his attorney present. Dr. Malave chose not to testify or call witnesses at the hearing.

The decision to grant or deny a continuance in an administrative proceeding is a matter in the sound discretion of the administrative law judge. See City of Palm Bay v. State, Dep’t of Transp., 588 So.2d 624, 628 (Fla. 1st DCA 1991). There is no absolute right to a continuance of an administrative proceeding pending the outcome of parallel criminal proceedings. See, e.g., United States v. Kordel, 397 U.S. 1, 11, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970). Indeed, many courts have determined that it does not offend due process to give the parties subject to disciplinary hearings the choice between giving testimony at a disciplinary proceeding or remaining silent, when there is a strong public interest in disciplining the licensed professional or public employee. See, e. g., Arthurs v. Stern, 560 F.2d 477 (1st Cir.1977); Giam-pa v. Ill. Civil Serv. Comm’n, 89 Ill.App.3d 606, 44 Ill.Dec. 744, 411 N.E.2d 1110 (1980). Conversely, other courts utilize a balancing test in which they weigh the petitioner’s interest in expeditious resolution of the administrative disciplinary action against the burden imposed on the respondent by being forced to answer to those claims before the criminal proceedings are complete. See, e.g., Advanced Power Sys. v. Hi-Tech Sys., Inc., 148 F.R.D. 138, 139 (E.D.Pa.1993); United States v. One Parcel of Real Estate Located at 12525 Palm Road, 731 F.Supp. 1057 (S.D.Fla.1990).

Here, Dr. Malave forcefully argues that the ALJ abused her discretion when she denied his requested continuance, particularly when he posed no threat to the public given the emergency suspension of his medical license. While reasonable judges could certainly disagree about the propriety of the ALJ’s decision to deny Dr. Malave’s continuance, we cannot say that no reasonable judge would have taken the position adopted by the ALJ. That being the case, it cannot be said that the ALJ abused her discretion. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980).

Similarly, we cannot say that the ALJ abused her discretion when, after the administrative hearing had concluded and the criminal trial resulted in Dr. Malave’s acquittal, the ALJ allowed Dr. Malave to reopen the administrative proceeding for the limited purpose of putting on his testimony since, following his acquittal on the criminal charges, he no longer had any Fifth Amendment concerns. Dr. Malave also sought to put on other witnesses and present other evidence at the reconvened hearing. However, the ALJ ruled that because those witnesses could have been put on at the original hearing without any Fifth Amendment concerns, Dr. Malave’s failure to call witnesses or put on evidence waived his right to do so. That decision was within the discretion of the ALJ.

AFFIRMED.

PLEUS and PALMER, JJ„ concur.


text:
    Joan RILEY, Appellant, v. CROSSINGS COMMUNITY CHURCH, INC., et al., Appellee.
    No. 5D03-2246.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.
    Shannon L. Akins of Shannon L. Akins, P.A., Orlando, for Appellant.
    Steven L. Robbins of Steven L. Robbins, P.A., Palm Beach Gardens, for Appellee.
   PER CURIAM.

The appellant, Joan Riley, was im-pleaded as a defendant for proceedings supplementary brought by the appellee, Crossings Community Church, Inc. (“Crossings”), under section 56.29, Florida Statutes (2002). She appeals a summary judgment rendered in favor of Crossings for money damages and attorneys’ fees. We find no error in the rendition of the summary judgment and in that respect we affirm. We conclude, however, that Crossings was not entitled to an award of attorneys’ fees against Ms. Riley.

Section 56.29 grants no authority for the recovery of attorneys’ fees against a party who has been implead into proceedings supplementary. See Gaedeke Holdings, Ltd. v. Mortgage Consultants, Inc., 877 So.2d 824 (Fla. 4th DCA 2004); Dusoe v. Securis Int’l, Inc., 672 So.2d 89 (Fla. 1st DCA 1996); Rosenfeld v. TPI Int’l Airways, 630 So.2d 1167 (Fla. 4th DCA 1993), review denied, 640 So.2d 1107 (Fla.1994). Accordingly, we reverse the award of attorneys’ fees against Ms. Riley.

AFFIRMED in part, REVERSED in part.

PLEUS, MONACO and TORPY, JJ., concur.


author: PALMER, J.

text:
    Derrick S. ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2036.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.
    Derrick Ellis, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Derrick S. Ellis (defendant) appeals the trial court’s summary denial of his rule 3.800 motion, in which he argued that the court erred in imposing a sentence which exceeds the applicable statutory maximum penalty. See Fla. R.Crim. P. 3.800. We reverse.

The defendant was convicted of and sentenced for committing three second degree felonies. On direct appeal, his sentencing as an habitual felony offender was reversed, and thereafter the defendant was resentenced to a term of life imprisonment on all three convictions. The defendant then filed a rule 3.800(a) motion seeking post-conviction relief in which he correctly pointed out that, in imposing the life imprisonment terms, the trial court exceeded the statutory maximum penalty allowed for second degree felonies. However, the trial court summarily denied the motion and this appeal followed. On appeal, the State commendably concedes error. In that regard, although subsequent versions of Florida’s sentencing guidelines authorize the trial court to impose a guidelines sentence which exceeds the applicable statutory maximum penalty, the sentencing guidelines in effect in 1989, the year the defendant committed his crimes, did not allow a sentence to exceed the statutory maximum penalty. See Fla. R.Crim. P. 3.701(d)(10). Accordingly, the trial court could not properly impose sentences greater than 15 years on each count.

REVERSED and REMANDED for RESENTENCING.

SHARP, W., and MONACO, JJ., concur.

      . See Ellis v. State, 608 So.2d 514 (Fla. 5th DCA 1992).

      . See Fla. R.Crim. P. 3.703(d)(28).


author: THOMPSON, J.

text:
    MARTIN DAYTONA CORPORATION, et al., Appellant, v. STRICKLAND CONSTRUCTION SERVICES, etc., et al, Appellee.
    No. 5D03-1371.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.

      John H. Dannecker of Shutts & Bowen, Orlando, for Appellant.
    Kimberly A. Ashby of Akerman Senter-fitt, P.A., Orlando, for Appellant.
    Rosemary Hanna Hayes of Hayes & Associates, P.A., Orlando, for Appellee.
   THOMPSON, J.

Martin Daytona Corporation (“Martin Daytona”), doing business as Martin Masonry Company (“Martin Masonry”), appeals an order granting Strickland Construction Services Corporation’s (“Strickland”) motion to stay arbitration. We reverse.

Martin Daytona, doing business as Martin Masonry, entered a construction subcontract with Strickland. When Strickland allegedly failed to pay the remaining amount owed, Martin Daytona, doing business as Martin Masonry, filed suit. The subcontract between Strickland and Martin Masonry contained an arbitration clause. In response to the complaint, Strickland moved to stay or abate arbitration, arguing that the contract and its arbitration clause were unenforceable. Strickland alleged that Martin Daytona entered the subcontract under the fictitious name of Martin Masonry, but that contrary to Chapter 489, the fictitious name was not separately registered and licensed. Strickland argued that because Martin Daytona had failed to separately register and license its fictitious name, the contract was unenforceable pursuant to section 489.128, Florida Statutes.

At the time of the hearing, section 489.128 provided:

As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity.

The trial court agreed with Strickland and granted the motion to stay arbitration based on Martin Daytona’s failure to obtain a license and register under its fictitious name.

After the briefs were filed in this case, the legislature modified section 489.128 to add subsection 489.128(l)(b):

For purposes of this section, an individual or business organization shall not be considered unlicensed for failing to have an occupational license certificate issued under the authority of chapter 205. A business organization shall not be considered unlicensed for failing to have a certificate of authority as required by ss. ¿89.119 and 489.127.

(emphasis supplied). This subsection clarifies that a company’s failure to register or to obtain a license under its fictitious name does not invalidate the contract. See Promontory Enterprises, Inc. v. Southern Engineering & Contracting, Inc., 864 So.2d 479 (Fla. 5th DCA 2004). Moreover, this subsection applies retroactively. Id. Martin Daytona’s failure to register and obtain a license under its fictitious name did not render it unlicensed for the purposes of section 489.128.

The order staying arbitration is REVERSED.

PALMER and MONACO, JJ., concur.

      . Strickland cites R.A.M. of South Florida, Inc. v. WCI Communities, Inc., 869 So.2d 1210 (Fla. 2d DCA 2004), but we conclude that RAM. does not apply in the instant case. As pointed out in footnote 4 of the opinion, RAM. does not involve subsection 489.128(l)(b).


text:
    Timothy BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1960.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Nancy A. Daniels, Public Defender, and Fred Parker Bingham, II, Special Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charles J. Crist, Jr., Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, Attorneys for Appel-lee.
   PER CURIAM.

Appellant raises several issues on direct appeal. We affirm all issues on appeal without comment except Appellant’s due process challenge to the sexual predator act. This Court has already resolved this issue against Appellant. See Frazier v. State, 29 Fla. L. Weekly D369, — So.2d -, 2004 WL 221043 (Fla. 1st DCA Feb.6, 2004); Therrien v. State, 859 So.2d 585 (Fla. 1st DCA 2003). We certify conflict with Espindola v. State, 855 So.2d 1281, 1290 (Fla. 3d DCA 2003).

AFFIRMED.

ERVIN, BOOTH and KAHN, JJ., concur.


author: WOLF, C.J.

text:
    Antoon VREULS, Appellant, v. PROGRESSIVE EMPLOYER SERVICES and RSKCo, Appellees.
    No. 1D03-4926.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.

      Keith A. Mann, of Mann Legal Group, Sarasota, for appellant.
    Cindy R. Galen, of Eraclides, Johns, Hall, Gelman, Eikner & Johannessen, L.L.P., Sarasota, for appellees.
   WOLF, C.J.

Claimant challenges the Judge of Compensation Claims’ (JCC’s) calculation of permanent total disability supplemental (PTDS) benefits. The issue before the court is whether the JCC correctly calculated the amount of appellant’s PTDS benefits pursuant to section 440.15(l)(f), by using the 66 2/3% permanent total disability (PTD) rate rather than the temporary total disability (TTD) 80% catastrophic rate.

The facts of this case are undisputed. Claimant/Appellant, Antoon Vreuls, was employed with Dutchmen Window Cleaning through appellee, Progressive Employer Services (E/C), a professional employer organization. On January 10, 2002, appellant fell approximately 36 feet while cleaning windows in the course of his employment. As a result of the accident, appellant became a paraplegic.

Appellee accepted claimant’s accident and injuries as compensable. Although ap-pellee originally paid TTD benefits at the rate of 66 2/3% of the average weekly wage (AWW) pursuant to section 440.15(2)(a), it later adjusted benefits using the 80% of AWW catastrophic TTD rate pursuant to 440.15(2)(b), and made these compensation benefits retroactive to the date of the accident. Appellee accepted appellant as permanently and totally disabled effective September 18, 2003. The parties stipulated that appellant’s AWW was $767.97. On October 27, 2003, the JCC rendered a final order calculating appellant’s PTDS benefits at the PTD rate (66 2/3% of AWW).

The crux of this appeal is the meaning of “weekly compensation rate” for the calculation of the PTDS benefits described in section 440.15(l)(f). Under section 440.15, PTDS benefits are 5% of the claimant’s weekly compensation rate, to be paid out in addition to regular PTD benefits. Section 440.15, providing for compensation for disability, states in relevant part as follows:

Compensation for disability shall be paid to the employee, subject to the limits provided in s. 440.12(2), as follows:
(1) Permanent total disability.—
(a) In case of total disability adjudged to be permanent, 66 2/3 percent of the average weekly wages shall be paid to the employee during the continuance of such total disability.
(b) Only a catastrophic injury as defined in s. 440.02 shall, in the absence of conclusive proof of a substantial earning capacity, constitute permanent total disability. Only claimants with catastrophic injuries are eligible for permanent total benefits. In no other case may permanent total disability be awarded.
(f)l. If permanent total disability results from injuries that occurred subsequent to June 30, 1955, and for which the liability of the employer for compensation has not been discharged under s. 440.20(11), the injured employee shall receive additional weekly compensation benefits equal to 5 percent of her or his weekly compensation rate, as established pursuant to the law in effect on the date of her or his injury, multiplied by the number of calendar years since the date of injury. The weekly compensation payable and the additional benefits payable under this paragraph, when combined, may not exceed the maximum weekly compensation rate in effect at the time of payment as determined pursuant to s. 440.12(2)....
(2) Temporary Total Disability.—
(b) Notwithstanding the provisions of paragraph (a), an employee who ... has been rendered a paraplegic, para-paretic, quadriplegic, or quadriparetic ... shall be paid temporary total disability of 80 percent of her or his average weekly wage. The increased temporary total disability compensation provided for in this paragraph must not extend beyond 6 months from the date of the accident. The compensation provided by this paragraph is not subject to the limits provided in s. 440.12(2), but instead is subject to a maximum weekly compensation rate of $700....

§ 440.15, Fla. Stat. (2001) (emphasis added).

Essentially, appellant argues that the PTDS benefits statute should be read as “the injured employee shall receive additional weekly compensation benefits equal to 5 percent of [the claimant’s] compensation rate [on the date of the injury].” Appellant argues that on the date of the injury he became a paraplegic and his compensation rate was calculated at the catastrophic TTD rate, or 80% of claimant’s AWW, as described in section 440.15(2)(b).

Appellee counters that this section should be read as “the injured employee shall receive additional weekly compensation benefits equal to 5 percent of her or his [PTD] weekly compensation rate, as [the formula for that PTD weekly compensation rate was] established pursuant to the law in effect on the date of her or his injury.” The weekly compensation rate for a permanent and total disability injury occurring in January 2002 was 66 2/3% of the claimant’s AWW. § 440.15(l)(a), Fla. Stat. (2001).

When the language of a statute is clear, unambiguous, and conveys clear and definite meaning, there is no reason for resorting to the rules of statutory interpretation and construction, and the statute must be given its plain and obvious meaning. See Closet Maid v. Sykes, 763 So.2d 377 (Fla. 1st DCA 2000); Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826 (Fla. 1st DCA 1996). The JCC correctly found that, based on the plain meaning of the statute, the compensation rate used in calculating PTDS benefits is the PTD compensation rate (66 2/3% of the AWW) and not the catastrophic TTD rate (80% of AWW). Three independent reasons support this interpretation.

First, the structure of section 440.15 enunciates all PTD benefits in subsection (1), and all TTD benefits separately in subsection (2). Logically, had the legislature wanted to provide an increased rate for PTDS benefits in the case of paraplegia in subsection (1) of 440.15, it would have included rate language similar to that in section 440.15(2)(b). This is consistent with the doctrine of the last antecedent, relied upon by the JCC, which provides that “relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to, or including, other words or phrases more remote.” City of St. Petersburg v. Nasworthy, 751 So.2d 772, 774 (Fla. 1st DCA 2000).

Second, the JCC rejected the theory that “5% of her or his weekly compensation rate, as established pursuant to the law in effect on the date of her or his injury” should be equivalent to the “compensation rate on the date of injury.” The 80% of AWW weekly compensation rate which appellant urges this court to apply clearly is for “temporary total disability” benefits only. § 440.15(2)(b), Fla. Stat. These TTD benefits are subject to the limitations delineated in subsection 440.15(2). See Nasworthy; A & J Tie Beam Serv. v. Kendle, 511 So.2d 653, 654 (Fla. 1st DCA 1987) (reversing award of catastrophic loss benefits for more than six months, finding that TTD benefits for catastrophic loss pursuant to section 440.15(2)(b) “may in no event extend beyond six months from the date of injury” (emphasis in original)). Using the catastrophic TTD rate to calculate PTDS benefits would violate the limitations for TTD benefits.

Third, the workers’ compensation administrative rules define “compensation rate” as “66 2/3 percent of the employee’s average weekly wage pursuant to Section 440.14, F.S., as calculated by the carrier, as ordered by a Judge of Compensation Claims, or to which the parties have stipulated.” Fla. Adm.Code R. 69L-3.002(6). The rules make no reference to applying the catastrophic TTD rate to PTD benefits.

Because the JCC gave the plain meaning to the language in 440.15(l)(f)l. in calculating the PTD supplemental benefits, we affirm the order.

KAHN and LEWIS, JJ., concur.


text:
    Michael BLAKELY, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1655.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the appellant’s motion to correct illegal sentence. See Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, 854 So.2d 659 (Fla.2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

AFFIRMED.

WOLF, C.J., BARFIELD and WEBSTER, JJ., concur.


text:
    Brian PRYOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1858.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petitioner filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. We treat the petitioner’s notice of appeal as a petition for certiorari and deny the petition. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

ERVIN, PADOVANO and, LEWIS, JJ., CONCUR.


text:
    Dwann J. GREEN, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D04-2599.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Appellant, pro se.
    Charlie Christ, Attorney General, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s June 30, 2004, order, as well as the record, filed on July 9, 2004, this appeal is hereby dismissed as untimely. Newell v. Moore, 826 So.2d 1033 (Fla. 1st DCA 2002). This dismissal is without prejudice to appellant’s right to seek relief in the trial court by motion pursuant to Florida Rule of Civil Procedure 1.540. See Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998).

DISMISSED.

WOLF, C.J., ERVIN and LEWIS, JJ., CONCUR.


text:
    STATE of Florida, Appellant, v. Steven Jayson BURNETTE, Appellee.
    No. 1D03-3178.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for appellant.
    William Mallory Kent, of The Law Office of William Mallory Kent, Jacksonville, for appellee.
   WOLF, C.J.

The state appeals an order setting aside a jury verdict of guilty and granting a motion for new trial. The trial court erred as a matter of law in finding that a technical discrepancy between the caption and the body of the information was not waived by appellee’s failure to raise the issue prior to the verdict; therefore, we reverse.

Appellee was charged by an amended information for incidents occurring in October 2002. The caption of the information states, “Burglary (Dwelling).” The body of the information described count I as follows:

STEVEN JAYSON BURNETTE on the 21st day of October, 2002, in the County of Duval and the State of Florida did unlawfully enter or remain in a structure, to wit: a building, the property of John Joseph Persin, with the intent to commit an offense therein, to-wit: theft, contrary to the provisions of section 810.02(3), Florida Statutes.

During the trial, without objection, the trial court informed the jury that Burnette had been “accused of the crimes of burglary to a dwelling” and resisting an officer without violence. The defense presented no evidence at trial that the structure was not a dwelling. Burnette’s defense was that he entered the mobile home because he heard an alarm coming from inside and went into the home out of concern for the victim. The state also presented evidence that the structure was indeed the home of the victim.

The trial court gave the standard jury instruction for burglary, including the definitions of “theft,” “structure,” and “dwelling.” Defense counsel made no objection to the instruction as given. The jury returned a guilty verdict, finding Burnette guilty of burglary “as charged in the information.” The special verdict form had a check next to the statement “We, the jury, further find that the structure was a dwelling.”

Almost a month after the verdict and prior to sentencing, Burnette’s newly appointed counsel filed an amended motion for new trial, alleging that the court erred in permitting the state to argue that defendant had committed a burglary of a dwelling when defendant was charged only with burglary of a structure. The trial court granted the amended motion for a new trial, citing Troyer v. State, 610 So.2d 530 (Fla. 2d DCA 1992).

The standard of review in this case is de novo because the trial court granted a new trial based on a matter of law, not for lack of sufficiency of the evidence. See Geibel v. State, 817 So.2d 1042 (Fla. 2d DCA 2002) (holding that although appellate courts generally review a trial court’s ruling on a motion for new trial based upon an abuse of discretion standard, a trial court’s failure to apply the correct legal standard is a legal error subject to de novo review). Here, the trial court found that the discrepancy between the heading and the body of the charging document was prejudicial error. The trial court, however, failed to recognize the general rule that a defect in an information is waived if no objection is timely made so long as the information does not wholly fail to state a crime. See Williams v. State, 547 So.2d 710 (Fla. 2d DCA 1989); State v. Duarte, 681 So.2d 1187 (Fla. 2d DCA 1996); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971). Where a defendant waits, as here, until after the state rests its case to challenge the propriety of an indictment, the defendant is required to show not only that the indictment is technically defective, but that it is so fundamentally defective that it cannot support any judgment of conviction. See Fla. R.Crim. P. 3.190 and 3.610; Ford v. State, 802 So.2d 1121, 1130 (Fla.2001) (noting any inquiry concerning the technical propriety of the indictment should have been raised prior to trial at which time any deficiency could have been cured).

An information is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy. See McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002). As explained in DuBoise v. State, 520 So.2d 260 (Fla.1988), the “reason for this provision [rule 3.610] is to discourage defendants from waiting until after a trial is over before contesting deficiencies in charging documents which could have easily been corrected if they had been pointed out before trial.” Id. at 264-65. Furthermore, the failure to include an essential element of a crime does not necessarily render an indictment fundamentally defective when the indictment references a specific section of the criminal code which sufficiently details all the elements of the offense. Id. Here, the body of the information charged appellant with violation of section 810.02(3), the statute and section for burglary, a second-degree felony; the second page of the Amended Information attached to the Order Granting New Trial cites section 810.02(3)(b), which specifically describes burglary of a dwelling.

An information may withstand an untimely challenge to a technical deficiency

(1) where a statutory citation for the crime is given, but all elements are not properly charged, or
(2) where the wrong or no statutory citation is given, but all elements of the crime are properly charged.

See, e.g., Fulcher v. State, 766 So.2d 243 (Fla. 4th DCA 2000) (affirming conviction where statutory citation for the crime was given, but all elements were not properly charged); Morales v. State, 785 So.2d 612 (Fla. 3d DCA 2001) (finding no fundamental error and that defendant was not prejudiced by citing to wrong statute where the language in the information placed him on proper notice of the crime with which he was being charged).

In McMillan, the heading of the information charged appellant with armed robbery with a weapon and cited that statute, but the body of the information alleged the elements of armed robbery with a firearm. McMillan, 832 So.2d at 946. As in this case, the defendant failed to object at trial until he was convicted of the armed robbery with a firearm. The appellate court found that these errors were technical and were not fatal, noting that “[t]he determinative questions are whether the information charged every element of the offense ... and whether it misled McMillan.” Id. at 948. The court affirmed the conviction for robbery with a firearm.

In Mesa v. State, 632 So.2d 1094 (Fla. 3d DCA 1994), the defendant was convicted of attempted second-degree murder with a firearm and given an enhanced sentence. The charging document referenced the correct statute, but it did not expressly allege the use of a firearm. The court affirmed the judgment and sentence despite this defect because it found the defendant waived any error by failing to file a motion to dismiss the information. Id. at 1095-1096. In Mesa the court framed the issue and upheld the convictions as follows:

The question ... becomes whether the information ... is so fundamentally defective that it wholly fails to state the crime ... so that a judgment of conviction and sentence thereon cannot stand, even though no motion to dismiss was filed in the case.
We have not overlooked a line of Florida cases which have consistently set aside a judgment of conviction ... where the indictment or information failed to allege possession of a firearm as an essential element of the charged crime. In these cases, however, the indictment or information also failed to reference [the correct statute] as a statute which the defendant was charged with violating, and; as a consequence, the indictment or information wholly failed to state a crime under the statute and no judgment of conviction or sentence could be imposed under said statute. Because the information in the instant case referenced [the correct statute] as one of the statutes the defendant was charged with violating, these cases do not control our decision today. Moreover, it is undisputed that the jury expressly found the defendant guilty of possessing a firearm based on substantial competent evidence adduced below, so that all the requirements for invoking [the correct statute] were met in this case.

Id. at 1097-1098 (citations omitted). See also, Morales, 785 So.2d at 612 (noting that fact that defendant was charged in information with violating a repealed and replaced statute was not fundamental error where defendant failed to object at trial and the error did not mislead him); Williams, 547 So.2d at 710 (finding that stating offense as third-degree felony instead of second-degree felony was not fundamental error where the body of the information made it clear that defendant was charged with second-degree felony, and thus, defendant waived such error by failing to raise it until he appealed his conviction). As in Fulcher and Mesa, the correct statutory citation for the crime was given, but all the elements were not properly charged.

The trial court relied on the case of Troyer v. State, 610 So.2d 530 (Fla. 2d DCA 1992). There, the information caption charged appellant with “Obtaining A License Tag By Fraud,” but the body cited the statute pertaining to obtaining a certificate of title fraudulently. There was no evidence that appellant had wrongfully obtained a certificate of title. There was no motion to dismiss or mention of the error during trial. The defendant was convicted of the wrong offense and on appeal the state conceded that the conviction arising from the facially defective information warranted reversal. The appellate court vacated the judgment and sentence, finding fundamental error, and the court stated that when there is a discrepancy between the heading and the body of an information as to the offense charged “the offense described in the body is the one with which the defendant is charged.” Id. at 531.

Notwithstanding this general statement, Troyer can be distinguished from the instant case by the fact that in Troyer there was no evidence of the offense charged in the body. The body of the information also contained the wrong statutory section. Moreover, in Troyer the state conceded that reversal was warranted and that the defendant was found guilty of a crime he did not commit. In the instant case the information references the correct offense in the caption and the correct statute in the body of the information, the jury expressly found that the structure burglarized by appellee was a dwelling, and the facts support the verdict that appellant committed the crime; therefore, we re-perse the order granting new trial with directions for the trial court to reinstate the jury verdict and proceed to sentencing.

KAHN and LEWIS, JJ., concur.

      . We have jurisdiction to review motions granting new trials in criminal cases. See Fla.R.App. P. 9.140(c)(1)(C).

      . Appellee claims he could not have filed a motion to dismiss the charge because he could not have known that he would be tried for burglary of a dwelling until trial. This argument is belied by the fact that the confusion in this case arose out of the inconsistency between the heading and the body of the information, which was apparent before trial. In fact, the record reflects that everyone involved in this case operated under the assumption that appellant was charged with burglary of a dwelling, as charged in the heading. Defense counsel never objected to the charge of burglary of a dwelling in opening statement, jury instructions, or at any other time prior to the verdict. Even Bur-nette's defense was premised on the fact that the building was the victim's home.