text:
    Lamar BEDFORD, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-399.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 2004.
   CANADY, Judge.

Lamar Bedford challenges the summary denial of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the court records demonstrate on their face that Bed-ford is entitled to relief, we reverse and remand.

In his motion, Bedford claimed that he is entitled to additional jail credit for fifty-seven days spent in Pinellas County jail from March 18, 1991, to May 14, 1991. See § 921.161(1), Fla. Stat. (1989) (providing that “the court imposing a sentence shall allow a defendant credit for all the time he spent in the county jail before sentence”). Bedford alleged that he was arrested in Pinellas County on a Hillsbor-ough County warrant for the pertinent offense and attached the arrest affidavit from Pinellas County, dated March 18, 1991. In the section where Bedford’s offenses should have been listed, there was stamped, “Hills. Co. Arrest on Warrant/Capias 914118.” The Hillsborough County lower court case number in this case is 91-4118.

In denying his claim, the trial court found that Bedford was not entitled to relief because the Florida Supreme Court in Gethers v. State, 838 So.2d 504 (Fla.2003), held that a defendant is not entitled to credit from the date a detainer is placed on him. We conclude, however, that the principle articulated in Gethers is inapplicable here because the record demonstrates that Bedford was held in Pinellas County, not on a detainer but pursuant to his arrest for the pertinent offenses, and that Bedford is therefore entitled to relief.

The trial court determined that Bedford was not arrested on the Hillsborough County charge in Pinellas County until May 14, 1991, and attached the criminal report affidavit as documentation. The affidavit does contain a notation that Bed-ford’s arrest date was May 14, 1991. The trial court also attached the Case Progress Abstract. The May 14, 1991, entry states, “Arrested: Booking # changed from out of co to 910016871.” However, the March 18, 1991, entries state, “Affidavit Filed: Warrant Issued,” and “Arrested: Booking # changed from clerk to out of co.” These records — together with the Pinellas County arrest affidavit — demonstrate on their face that Bedford was in the Pinellas County jail after being arrested for the pertinent offense in Pinellas County on March 18, 1991, and that the notation in the criminal report affidavit concerning his “arrest” on May 14, 1991, is a reference to the date of his transfer from custody in Pinellas County to custody in Hillsborough County.

We therefore remand for the trial court to award Bedford fifty-seven days of jail credit for the time he spent in the Pinellas County jail.

Reversed and remanded.

NORTHCUTT and COVINGTON, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Shawn Lee SMITH, Appellant/Cross Appellee, v. STATE of Florida, Appellee/Cross Appellant.
    Nos. 1D03-2339, 1D03-5300.
    District Court of Appeal of Florida, First District.
    Sept. 1, 2004.
    Nancy A. Daniels, Public Defender, David A. Davis and David P. Gauldin, Assistant Public Defenders, Tallahassee, for Appellant/Cross Appellee.
    Charles J. Crist, Jr., Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appel-lee/Cross Appellant.
   PER CURIAM.

Appellant/Cross Appellee’s conviction is affirmed. The order dismissing the charge of vehicular homicide is affirmed on the authority of Velazquez v. State, 561 So.2d 347 (Fla. 3d DCA), review denied, 570 So.2d 1306 (Fla.1990).

AFFIRMED.

BARFIELD, VAN NORTWICK, and PADOVANO, JJ., concur.


author: CASANUEVA, Judge.

text:
    Dwayne TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1882.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 2004.
   CASANUEVA, Judge.

Dwayne Taylor appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for reconsideration of Taylor’s claim.

In his motion, Taylor argued that he is entitled to additional jail credit in circuit court case number 01-10121. He claimed that his bond was revoked at a hearing on June 21, 2002, and he is entitled to credit for the time he spent in jail from that date until his sentencing on October 10, 2002. The trial court denied this claim because Taylor had already sought additional jail credit by filing an earlier motion pursuant to Florida Rule of Criminal Procedure 3.800(a), which the trial court denied, con-eluding that certain documents in the record indicated that Taylor was not entitled to the additional jail credit.

The trial court erred in denying the rule 3.850 motion because Taylor did not previously raise the specific claim that his bond was revoked at a June 21, 2002, hearing. Furthermore, by filing the rule 3.850 motion, Taylor challenged the accuracy of the record relied upon by the trial court in denying his earlier rule 3.800(a) motion for jail credit. See, e.g., Graham v. State, 846 So.2d 617 (Fla. 2d DCA 2003); Hamilton v. State, 752 So.2d 133 (Fla. 2d DCA 2000). Therefore, we reverse and remand for the trial court to reconsider Taylor’s claim that his bond was revoked at a June 21, 2002, hearing.

Reversed and remanded.

NORTHCUTT and COVINGTON, JJ., Concur.


text:
    Thomas DEAN, Appellant, v. CATERPILLAR, INC., Thompson Tractor Co., Inc., and Richard Sewell, Appellees.
    No. 1D04-3097.
    District Court of Appeal of Florida, First District.
    Sept. 1, 2004.
    B. Shannon Saunders, Cochran, Cherry, Givens & Smith, Dothan, AL, for Appellant.
    John N. Boggs, Boggs & Fishel, Panama City; Gordon James III and John R. Har-grove, Gordon Hargrove & James, Ft. Lauderdale; John M. Fite, Barron, Red-ding & Hughes, Panama City; and James R. Shaw, Huie, Fernambucq & Stewart, Birmingham, AL, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 27, 2004, the Court has, determined that the order on appeal is not a final order. See Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BARFIELD, VAN NORTWICK and PADOVANO, JJ., concur.


text:
    W.T., a child, Petitioner, v. DEPARTMENT OF JUVENILE JUSTICE, Respondent.
    No. 1D04-3769.
    District Court of Appeal of Florida, First District.
    Sept. 1, 2004.
    Nancy A. Daniels, Public Defender, and John W. Hedrick, Assistant Public Defender, Tallahassee, for petitioner.

      No appearance for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied as facially insufficient.

KAHN, WEBSTER and HAWKES, JJ., concur.


text:
    John ARMEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1837.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 2004.
   CASANUEVA, Judge.

John Armey appeals an order dismissing his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. The circuit court found that Armey had failed to properly swear to the motion and dismissed it without prejudice for Ar-mey to refile “a motion which complies with the requirements of Florida Rule of Criminal Procedure 3.850.” As the circuit erred on this point, we reverse.

At the end of his rule 3.850 motion, Armey executed the same “unnotarized oath” set forth in Florida Rule of Criminal Procedure 3.987, stating, “Under penalties of perjury, I declare that I have read the foregoing motion and that [all] the facts stated in it are true.” The circuit court overlooked the fact that section 92.525(2), Florida Statutes (2001), allows an unnotar-ized oath, in the form used by the defendant in this case. The Florida Supreme Court specifically authorized this procedure in State v. Shearer, 628 So.2d 1102 (Fla.1993). The standard form of the rule 3.850 motion now gives an inmate the option of executing a notarized oath or an unnotarized oath. Fla. R.Crim. P. 3.987. Under either alternative, the motion is sworn under penalties of perjury. Shearer, 628 So.2d at 1103.

Because Armey’s motion was properly sworn to, we reverse the order of dismissal and remand to the circuit court for further consideration. We express no opinion on the merits of Armey’s motion.

Reversed and remanded.

NORTHCUTT and COVINGTON, JJ, Concur.


author: FLETCHER, Judge. COPE, J.

text:
    Royce M. REED, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3301.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2004.
    Rehearing Denied Sept. 1, 2004.

      Royce M. Reed, in proper person, for appellant.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   ON MOTION FOR REHEARING AND CLARIFICATION

FLETCHER, Judge.

Royce M. Reed moves for rehearing and clarification. We deny the motion for rehearing but provide clarification of our af-firmance of the trial court’s denial of Reed’s petition for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.800(a).

On January 25, 1991, Reed entered a plea of guilty in case number 89-36248-A, and was adjudicated guilty. Because Reed was a juvenile at the time, the court placed him in a juvenile detention facility while awaiting sentencing. While there, Reed escaped and committed several other crimes for which he was convicted and sentenced as an habitual violent felony offender, case number 91-13007. On April 8, 1991 Reed was sentenced in case number 89-36248-A, pursuant to his plea and adjudication of guilty. The sentence in case number 89-36248-A was eventually vacated and Reed was re-sentenced, nunc pro tunc to the original sentencing date of April 8, 1991. It is that conviction which was used to habitualize him in 91-13007. Reed complains that this case could not be used to habitualize him because the conviction was not final while his sentencing remained pending, and that sentence was not imposed until April 1991, after the convictions in 91-13007.

Reed is incorrect. For purposes of the habitual offender statute, the term “conviction” is equivalent to adjudication. See McCrae v. State, 395 So.2d 1145, 1153-54 (Fla.1980)(a defendant was “convicted” within the meaning of the statute if he had entered a guilty plea to a qualifying felony, but had not yet been sentenced); cf. Benton v. State, 829 So.2d 388 (Fla. 3d DCA 2002)(adjudication withheld and probation caused defendant to be further removed from the adjudication of guilt required for treatment as a habitual felony offender); Schneider v. State, 788 So.2d 1073, 1074 (Fla. 2d DCA 2001)(habitual violent offender sentence was proper where the defendant was on community control in a prior case when he committed the instant offenses because he had been adjudicated guilty in the 'prior case). The record shows that Reed had already been adjudicated guilty in accordance with his plea in 89-36248-A when he escaped from custody and committed the crimes for which he was eventually habitualized. The adjudication in 89-36248-A was properly considered as a prior conviction for purposes of applying habitual offender sentencing in 91-13007; both the offense and conviction occurred within five years prior to the offenses and convictions in 91-13007. § 775.084(l)(b)(2), Fla. Stat.(Supp.l988).

Motion for rehearing denied.

COPE, J.

(concurring).

I entirely agree with Judge Fletcher’s opinion but point out that in 1993 the Legislature amended the habitual offender statute. The analysis would be different for offenses committed on or after the effective date of the 1993 act. See Rhodes v. State, 704 So.2d 1080, 1083 (Fla. 1st DCA 1997); ch. 93-406, §§ 2, 44, Laws of Fla.; § 775.084(5), Fla. Stat. (1993).


author: COPE, J.

text:
    In re ESTATE OF Louise HATTEN. Antoinette Tartaglia, Jeanette Kidd, and Anthony Hatten, Appellants, v. Louis Hatten, individually, Appellee.
    No. 3D03-2539.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2004.

      Jose Saavedra, Miami,for appellants.
    Walton Lantaff Schroeder & Carson, Lawrence D. Smith, Miami, and Erich B. Neumann, Coral Gables, for appellee.
    Before COPE, GODERICH, and GREEN, JJ.
   COPE, J.

This is an appeal of a summary judgment in favor of the defendant in an action for interference with a testamentary expectancy. We conclude that disputed issues of material fact remain, and reverse for further proceedings.

I.

As this is an appeal from a summary judgment, the facts put forth by the plaintiffs are accepted as true for present purposes.

The decedent, Louise Hatten, died August 17, 2001. The decedent had seven brothers and sisters.

In 1996 or 1997 one of the sisters, plaintiff-appellant Antoinette Tartaglia, visited the decedent. The decedent showed plaintiff Tartaglia her will. When Ms. Tartag-lia read it, she saw that the decedent had disinherited three family members. The decedent told plaintiff Tartaglia that she disinherited her brothers Louis and George, and her nephew Joseph.

The will left the decedent’s property to the three plaintiffs (her sister Antoinette Tartaglia, her sister Jeanette Kidd, and her brother Anthony Hatten), plus a another sister, Helen Parker, who is not a party to this litigation.

In May 2001, plaintiff-appellant Jeanette Kidd vacationed with the decedent. The decedent told plaintiff Kidd the contents of her will. The description was the same as the contents of the will plaintiff Tartaglia had read in 1996 or 1997. Plaintiff Kidd did not, however, actually see the will.

According to plaintiff-appellant Anthony Hatten, the decedent also described the will to him. Again, the decedent’s description of the bequests was the same as those contained in the will plaintiff Tartaglia saw in 1996 or 1997.

On August 17, 2001 — three months after the conversation between decedent and plaintiff Kidd regarding the contents of the will — the decedent died. The day after the decedent’s death, plaintiff Tartaglia and defendant Louis Hatten went to the decedent’s home along with a neighbor, Helen Baer.

According to plaintiff Tartaglia, while she and others picked out the clothes in which the decedent would be laid to rest,

[Defendant] Louis [Hatten] was going through all [of decedent] Louises drawers and putting all kinds of papers and documents in a paper bag. He was also putting personal items on the dining room table along with a couple of card board as well as metal boxes, which, he departed the condominium with these items....
[Defendant] Louis [Hatten] never showed me any of the things in the bags or boxes. Not only was there no discussion of their contents, I was never shown what was taken out of the' apartment. We never heard anything further about the Will or the contents of what Louis removed from the apartment that day. I firmly believe that Louis found the Will, read it, and discovered that he had been disinherited, and then destroyed the Will.

R. 77.

Thereafter defendant Louis Hatten filed a petition for administration and was named the personal representative of the estate. -The estate was opened as an intestate estate. Under Probate Rule 5.200, the verified petition must contain:

(h) in an intestate estate, a statement that after the exercise of reasonable diligence the petitioner is unaware of any unrevoked wills or codicils, or if the petitioner is aware of any unrevoked wills or codicils, a statement why the wills or codicils are not' being probated, or otherwise a statement of the facts concerning any such will or codicil....

Fla. Prob. R. 5.200(h) (emphasis added).

The plaintiffs filed an adversary action against the defendant, seeking damages for the tort of interference with a testamentary expectancy. This cause of action was recognized in Florida in DeWitt v. Duce, 408 So.2d 216 (Fla.1981). The cause of action is available where the defendant has maliciously destroyed a will, and the plaintiff is unable to reestablish the destroyed will in a probate proceeding. Id. at 219.

The plaintiffs allege that the decedent had repeatedly told each of them that she had made a will which disinherited Louis, George, and Joseph. The decedent had reconfirmed the existence of the will in May 2001 shortly before her demise in August of 2001. The plaintiffs allege that the will was in the personal papers which the defendant took ’away from the decedents home the day after her death. They assert that the defendant read the will and destroyed it upon finding that it left him only one dollar. The plaintiffs state that as a result of this malicious destruction, the $700,000 estate will be divided seven ways under the law of intestate succession: Under the will, the three plaintiffs plus nonparty Helen Parker- would have each received one fourth.

The defendant moved for summary judgment. He argued that all of the plaintiffs evidence is barred under (a) hearsay rule and (b) the Dead Mans Statute.

The trial court granted summary judgment for the defendant. The plaintiffs have appealed.

II.

In this case the decedent was known to have made a will. When a decedent who has made a will dies, and the will cannot be found among the decedents personal papers (or other logical locations such as safety deposit box or family lawyer), a presumption arises that the decedent herself destroyed the will, intending to revoke it. See Walton v. Estate of Walton, 601 So.2d 1266, 1266-67 (Fla. 3d DCA 1992).

This presumption is rebuttable, id., and there is a factual issue in this case which precludes summary judgment for the defendant. That is so because in this case the defendant carried away the decedent’s personal papers without letting anyone else examine them. He later reported that no will was found. Since the decedents will left the defendant one dollar, but under intestate succession the defendant will take approximately $100,000, there was a motive for the defendant to destroy the will. The defendant denies that he did any such thing, but for summary judgment purposes there is a factual dispute for the trier of fact. See Upson v. Carville, 369 So.2d 113 (Fla. 1st DCA 1979).

III.

Proceeding to the defendant’s evi-dentiary arguments, we first consider the defendant’s contentions regarding the hearsay rule.

The defendant maintains that the hearsay rule bars evidence of the contents of the decedent’s will. That is not so.

There is a specific hearsay exemption for statements which relate “to the execution, revocation, identification, or terms of the declarants will.” 90.803(3)(b), Fla. Stat. (2003). According to -Professor Ehrhardt:

Section 90.803(3)(b)l recognizes that a statement of memory or belief is admissible when it relates to the execution, revocation, identification, or terms of the declarant’s will. Generally, courts recognizing an exception of the hearsay rule have provided that a decedent’s statements relating to the execution or the revocation of a will are admissible regardless of whether they are made prior or subsequent to the execution or revocation. Since the declar-ant is dead there is a much greater necessity for the admissibility of this evidence than is generally present under section 90.803(3).

Charles W. Ehrhardt, Florida Evidence 803.3b, at 772 (2004) (emphasis added; footnote omitted).

The hearsay rule does not bar the testimony of the plaintiffs regarding (1) the fact that the decedent had executed a will and (2) the contents of the will.

IV.

The defendant next argues that even if the hearsay rule does not bar the plaintiffs’ evidence, the Dead Man’s Statute is a barrier the plaintiffs cannot overcome. Again, we disagree. We conclude that the Dead Mans Statute does not apply in an action for tortious interference with a testamentary expectancy.

A.

When a will has been maliciously destroyed, there are two procedures which are potentially available to rectify the situation. The first option is a petition under the Florida Probate Code to establish the contents of the destroyed will.

Section 733.207, Florida Statutes (2003), states:

733.207 Establishment and probate of lost or destroyed will. — Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

(Emphasis added). As explained by the statute, establishment of a will can be accomplished only if there is the testimony of a disinterested witness plus a copy of the will, or if there is the testimony of two disinterested witnesses. Id. The Probate Code defines “interested person” in part as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” 731.201(21), Fla. Stat. (2003).

In this case the section 733.207 procedure cannot be used by the plaintiffs. That is so because the only available testimony would come from the three plaintiffs, all of whom are “interested” under the terms of the Probate Code.

B.

The alternative remedy available to the plaintiffs is an action for tortious interference with a testamentary expectancy. The Florida Supreme Court has said:

Thus when the plaintiff is unable to establish a destroyed will in a probate proceeding because there was only one witness to that will, relief by an action in tort for malicious destruction is proper. The issue of what the destroyed will contained never was decided in the probate court and hence is not res judicata for purposes of the tort action. Recovery is allowed because of the equitable maxim that no wrong shall be without a remedy.... A pattern may be developed from this line of cases which allows the later action for tortious interference only if the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court.
... Cases which allow the action for tortious interference with a testamentary expectancy are predicated on the inadequacy of probate remedies, although this is not articulated.

DeWitt v. Duce, 408 So.2d at 219 (citations and footnotes omitted; emphasis added).

In the present case the plaintiffs seek a judgment for damages against the defendant. The plaintiffs proceed on the premise that relief is unavailable to them under the Probate Code, and that the estate will be divided seven ways under the law of intestate succession.

The plaintiffs reason that the destruction of the will has greatly diminished each plaintiffs share of the estate. They seek a damage judgment from the defendant for the amount of the loss.

C.

This brings us to the question whether the Dead Man’s Statute has any application in an action for tortious interference with a testamentary expectancy. We conclude that it does not.

The Dead Man’s Statute applies to a “person interested in an action ... against the personal representative, heir-at-law, assignee, legatee, devisee, or survivor of a deceased person.... ” 90.602(1), Fla. Stat. (2003). “To be protected, the person must be involved in the suit in a representative, and not a personal capacity.” Charles W. Ehrhardt, Florida Evidence 602.1, at 435-36 (emphasis added; footnote omitted). Although the defendant is the personal representative and an heir, he is not being sued in any such capacity.

The plaintiffs in this case are not seeking to have the personal representative modify the distribution of the estate. The plaintiffs concede that they cannot establish the contents of the destroyed will in a probate proceeding under section 733.207. Thus they are not seeking a decree which would reduce the defendant’s share of the estate from $100,000 (under intestate succession) to the $1 set forth in the destroyed will.

The plaintiffs instead are suing the defendant for his (alleged) action in destroying or concealing the decedent’s will. They seek damages for the amount that their respective shares were reduced as a result of the defendant’s act.

The Florida Supreme Court has said that the Dead Man’s Statute “is only appropriate to suits against parties in their representative capacities.... ” McDougald v. Couey, 150 Fla. 748, 9 So.2d 187, 188 (1942); see also 2 Juan Ramirez, Jr., Florida Evidence Manual 90.602.01, at 6-17 (2d ed.2003). Since the defendant in McDoug-ald had been sued in an individual capacity, the Dead Mans Statute did not apply. See also Mathews v. Hines, 444 F.Supp. 1201, 1206 (M.D.Fla.1978); Allstate Ins. Co. v. Doody, 193 So.2d 687, 689 (Fla. 3d DCA 1967); Klein v. Witte, 142 So.2d 789, 792 (Fla. 2d DCA 1962).

The same logic applies here. The defendant is being sued personally for damages. As in McDougald, the Dead Man’s Statute does not apply in the tort action at all.

Professor Ehrhardt’s discussion of the statute is particularly relevant here:

Because of the difficulties in determining when section 90.602 applies and when it is waived, and because the drafters were primarily concerned with protecting an estate against claims by creditors based on oral contracts, when faced with questions concerning whether an individual is barred by section 90.602 from testifying, courts should narrowly construe the statute so as to disqualify as little testimony as possible. Judges and juries are as capable of weighing the conflicting evidence and determining the credibility of witnesses in probate matters as they are in tort or criminal suits. All the considerations that generally are considered by fact-finders are appropriate in probate matters. Only testimony that is worthy of belief will be credited; all of the facts and circumstances will be considered in determining which party’s version of the events will be believed.

Charles W. Ehrhardt, Florida Evidence 602.1, at 441 (emphasis added).

V.

We reverse the summary judgment and remand the cause for further proceedings consistent herewith.

      . The decedent said she did this because Louis and George had borrowed money from her and had not repaid it. Her nephew Joseph had borrowed money from the decedent’s sister Antoinette Tartaglia and had not repaid Antoinette.
      The decedent accomplished the disinheritance by leaving only one dollar to her brother, defendant Louis Hatten, and one dollar to her brother George Hatten, a nonparty to this litigation. She left nothing to her nephew, Joseph Cucchiara, a nonparty to this litigation. Mr. Cucchiara was the son of the decedents sister Alice. Alice had predeceased the decedent.

      . Assuming for purposes of discussion that the Dead Man’s Statute were applicable here, reversal would still be required. That is so because the Dead Man’s Statute only bars testimony regarding "any oral communication between the interested person and the person who is deceased ... at the time of the examination.” § 90.602(1), Fla. Stat. (2003) (emphasis added). The Statute would not bar plaintiff Tartaglia's testimony about the will she read, because the will is a written document, not an oral communication. See Carpenter v. Wemyss, 638 So.2d 592 (Fla. 4th DCA 1994).


text:
    Teofilo Bermudez CENTANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1686.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2004.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Teofilo Bermudez Centano (“Centano”) appeals an order revoking probation and sentencing him to a term of thirty years incarceration. We reverse.

Centano was charged with sexual battery on a child under twelve years of age and lewd assault on a child, crimes committed in 1993. In 1994 Centano pled no contest to a reduced charge of attempted sexual battery and lewd assault. The court sentenced him to five years in state prison followed by ten years of reporting probation. A special condition of his probation was that Centano complete a Mentally Disordered Sex Offender (“MDSO”) program.

Centano served his time in prison but in January 2001 while on probation, the State filed an Amended Affidavit of Violation of Probation against him, alleging that Centa-no (1) failed to report to his probation officer since November 2000; (2) failed to list his complete and current residential and work address since November 2000; (3) failed to attend a TASC drug evaluation and treatment program as ordered by his probation officer; and (4) failed to complete the required MDSO program. Cen-tano eventually surrendered himself to the Dade County Jail in November 2001.

A parole violation hearing was conducted before Judge David H. Young on April 30, 2002, a successor judge to the' sentencing judge, and the court thereafter revoked appellant’s probation, sentencing him to 30 years in prison on the attempted sexual battery charge and 10 years on the lewd assault charge to run concurrently. However, no written order revoking probation was entered.

There is considerable confusion in the record concerning the grounds upon which probation was revoked. It was conceded by the Defendant below that he failed to report monthly as required. However, it is unclear from the record below whether the trial court violated the Defendant for alleged failure to report his work and residential addresses monthly. On appeal, the State concedes that the Order of Probation did not so require and that the Defendant therefore could not be violated on this ground. Similarly, while the State conceded almost in passing below that the Defendant could not be violated for a probation officer imposed condition that he participate in the TASC drug evaluation and treatment program, the absence of an order below makes it impossible for us to know whether the trial court appreciated the fact that the concession was made. Finally, while the transcript does include one explicit finding by the trial judge— that Centano violated the special condition that he successfully complete an MDSO program by not “showing up” — there is no evidence in the record that the trial court considered the merits of Centano’s proffered reason for failing to show — that he would be arrested for failing to report to the now concededly unlawfully imposed TASC drug treatment program. Arias v. State, 751 So.2d 184, 186 (Fla. 3d DCA 2000)(“A violation which triggers a revocation of probation must be both willful and substantial in nature, and must be supported by the greater weight of the evidence”).

Our case law requires an appropriate written order revoking the defendant’s probation based upon the evidence presented. See Watson v. State, 807 So.2d 166 (Fla. 3d DCA 2002). While the failure of the trial court to render a written order is sufficient to require reversal, we further conclude here that the combination of the piecemeal concessions made by the State as this violation proceeding has progressed, taken together with the apparent alacrity with which the trial court reached the conclusion that Centano’s one failure to show up at the MDSO program constituted a violation, compels us, in the interests of justice, to order a de novo evidentiary hearing on the probation violation followed by the entry of a written order relating the courts findings. If the court concludes that Centano has violated the conditions of his probation, then it shall likewise conduct a new sentencing hearing. Centano shall be entitled to be present at such proceedings as may occur and should be prepared to direct the successor judge’s attention to any portion of the record that predates the successor judge’s accession to this case that Centano deems relevant.

Reversed and remanded with directions.

      . The Order of Probation did not include a drug evaluation or treatment special condition. See Gerber v. State, 856 So.2d 1113, 1115 (Fla. 4th DCA 2003) (double jeopardy protection against multiple punishments includes protection against enhancements or extensions of conditions of probation); Morales v. State, 518 So.2d 964 (Fla. 3d DCA 1988) (failure of defendant to report to probation counselor ordered drug and alcohol counseling may not be relied upon for revocation where same was not ordered by sentencing judge).


text:
    Raul BENITEZ, et al., Appellants, v. BELL MICROPRODUCTS-FUTURE TECH, etc., Appellees.
    Nos. 3D04-989, 3D04-993.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2004.
    Spencer Klein, P.A., and Thomas R. Spencer, Miami; Nathaniel A. Klitsberg, for appellant.

      Levey, Airan, Brownstein, Shevin, Friedman, Roen Kelso, LLP, and John R. Kelso, Miami; Blaxberg Grayson Kukoff Segal, P.A., and Moisés T. Grayson, Miami, for appellee.
    Before GREEN, RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

Pursuant to the Stipulation and Joint Motion filed in this case by Coldwell Banker Residential Real Estate, Inc. and Raul Benitez and Virginia Benitez (collectively “Appellants”) and Saddy Abaunza Delgado, P.A., Saddy Abaunza Delgado and Bell Microproducts-Future Tech, Inc. (collectively “Appellees”), the Order Granting Motion to Stay Pending Arbitration dated March 24, 2004, is hereby vacated, and this appeal is dismissed with each party to bear its own fees and costs related to the appeal.


text:
    Christopher M. COLLIER, Appellant, v. Y.M.C., A Minor, by and through her mother Ann COLLIER, Appellee.
    No. 3D04-1101.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2004.
    Christopher M. Collier, in proper person.
    Silvia Perez and Steven G. Paulson, Certified Legal Intern, for appellee.
    Before COPE, GODERICH and RAMIREZ, JJ.
   PER CURIAM.

This is an appeal of an order denying the appellant’s motion to recuse the trial judge and motion to vacate a domestic violence injunction. We conclude that no legal error has been demonstrated in the trial court’s ruling on the motion.

Affirmed.


author: KLEIN, J.

text:
    S.H., a minor child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D04-293.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Rehearing Denied Sept. 1, 2004.

      William W. Booth and Michelle Hankey of Legal Aid Society of Palm Beach County, West Palm Beach, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   KLEIN, J.

We withdraw our opinion filed on June 9, 2004 and replace it with this opinion. S.H., an undocumented alien who came to Florida from Guatemala when he was sixteen, appeals the trial court’s order denying his petition to have him declared dependent on the ground that his parents, who live in Guatemala, have abandoned him. We affirm.

The order denying dependency was entered after a hearing at which there was no testimony. S.H. argues that the trial court erred in not declaring him dependent based on the verified petition filed by S.H.’s uncle. The petition alleged that S.H.’s parents live in Guatemala and that his father forced him to leave in order to obtain work in the United States and support his family in Guatemala. S.H. is presently living with his uncle in West Palm Beach. His mother and father have not supported him but have contacted him by telephone. The petition concludes that S.H. is therefore dependent and requests that S.H. be adjudicated dependent and placed with his uncle, a legal resident of the United States.

S.H. asserted that, because his parents were served with notice in Guatemala and failed to respond or appear at the hearing, he should be adjudicated dependent. He acknowledged that he is seeking dependency for no reason other than to change his immigration status and that there is no need for the services of DCF. Although S.H. is now eighteen, which makes this case moot, we address the issue as the parties agree that this is an issue which has arisen before and will reoccur. Logan v. State, 846 So.2d 472 (Fla.2003).

Abandonment, which is a ground for a finding of dependency under section 39.01(14), Florida Statutes (2003) is defined under section 39.01(1):

“Abandoned” means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver responsible for the child’s welfare, while being able, makes no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations.
“Caregiver” is defined under section 39.01(10) as “the parent, legal custodian, adult household member, or other person responsible for a child’s welfare as defined in subsection (47).” Section 39.01(47) states that “ ‘Other person responsible for a child’s welfare’ includes the child’s legal guardian ... and also includes an adult sitter or relative entrusted with a child’s care.”

All that the petition establishes is that S.H.’s parents sent him to live with his uncle. These facts alone would not as a matter of law constitute abandonment. There was no proof that the uncle, who qualifies as a caregiver under the statute, has abandoned S.H. The trial court was therefore correct in not finding S.H. dependent. Affirmed.

WARNER and HAZOURI, JJ., concur.

      . Being declared dependent would benefit S.H. under 8 U.S.C. § 1101(a)(27)(I), (J).

      . We have not overlooked S.H.'s argument that the trial court erred in determining it had no jurisdiction. Although Mr. Booth, as counsel for S.H., included on his own such a statement in the order he prepared for the court, the court at no time indicated it was without jurisdiction. Such a conclusion would have been totally inconsistent with the court’s finding that the parents "have not abandoned or neglected the minor child” under our statutes. We might not have gone to the trouble of publishing this indiscretion had it not been for the fact that Mr. Booth, after appellee pointed out all of the above, persisted in maintaining this position in appellant's reply brief, with reference to nothing other than the fact that it had been included in the order which he had prepared for the court’s signature. We remind Mr. Booth of his obligation under rule 4-3.3, Rules of Professional Conduct of candor toward the court. ■
      Although jurisdiction was not an issue in the trial court, we note that the court did have subject matter jurisdiction in that S.H. was a child under section 39.01(12), Florida Statutes (2003). This case is distinguishable from P.G. v. Department of Children & Family Services., 867 So.2d 1248 (Fla. 4th DCA 2004), in which jurisdiction was preempted because the child was in custody of immigration officials.


author: NORTHCUTT, Judge.

text:
    Calvin Ty CHANCEY, Appellant, v. Patricia C. CHANCEY, a/k/a Patricia C. Vickers, Appellee.
    No. 2D03-1123.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2004.
    Calvin Ty Chancey, pro se.
    No appearance for Appellee.
   NORTHCUTT, Judge.

While Calvin Chancey was incarcerated in the Polk County Jail, his wife, Patricia Chancey, served him with a petition for dissolution of marriage. The petition alleged that the parties had no children, assets, or liabilities. She obtained a default in November 2002. The circuit court held a hearing on the petition on January 17, 2003. Chancey sought an order allowing him to be transported from the jail for the hearing, but his request was denied. A final judgment was entered on January 23, 2003. On January 30, 2003, Chancey filed a pro se motion to set aside the default and final judgment, referencing Florida Rule of Civil Procedure 1.540. The court denied his motion on February 12, 2003, without conducting a hearing. We reverse that order and remand to the circuit court with directions to hold a hearing on the motion.

In his January 30 motion, Chancey claimed that he had sent an answer to his wife’s petition to the circuit court clerk. He stated that the answer included his and his wife’s names, but it did not include a case number because the copy of the petition served on him did not contain one. He requested a hearing on his motion.

In addition to the rule 1.540 motion, Chancey filed numerous other documents with the court. On December 31, 2002, he filed a “mandatory disclosure” to which he attached a credit report showing debts incurred during the marriage. In an undated letter to the clerk, filed January 27, 2003, he asked that he be allowed to attend the hearing on the wife’s petition because the parties had $55,000 in marital assets and liabilities that needed to be addressed. He filed a “motion for rehearing” on February 7, 2003, again asserting that the parties had marital assets and liabilities.

We realize that Chancey’s allegations in support of setting aside the default and judgment are buried within numerous letters and motions and are not artfully stated. But he is a pro se litigant and his pleadings should be liberally construed. See Eichelberger v. Brueckheimer, 613 So.2d 1372, 1373 (Fla. 2d DCA 1993). At the least, Chancey’s filings may suggest a case of excusable neglect. See Fla. R. Civ. P. 1.540(b). They also raise the possibility that he did file a response to his wife’s petition and should not have been defaulted, or that his wife committed fraud on the court by falsely stating that the parties had no assets or liabilities. See St. Surin v. St. Surin, 684 So.2d 243, 244 (Fla. 2d DCA 1996). If a rule 1.540 motion alleges a colorable entitlement to relief, the circuit court should conduct a limited evidentiary hearing on the motion. See In re Schiavo, 800 So.2d 640, 641 (Fla. 2d DCA 2001).

Therefore, we reverse the order denying Chancey’s motion to set aside the default and default judgment and remand to the circuit court with directions to conduct a hearing on his motion.

ALTENBERND, C.J., and STRINGER, J., Concur.

      . Rule 1.540 governs general provisions concerning relief from judgment in family law cases, except for certain time limits on filing that are not at issue in this case. See Fla. Fam. L.R.P. 12.540.


author: SALCINES, Judge.

text:
    Leroy ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2656.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2004.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Leroy Armstrong was charged with possession of cocaine and possession of drug paraphernalia. He entered a plea of no contest to the offenses, reserving his right to appeal the denial of his dispositive motion to suppress. We agree that the trial court erred in denying the motion and reverse.

Armstrong and a friend were walking down the street when a Fort Myers police officer passed by in his marked patrol car. The officer stopped his vehicle and exited. The officer asked Armstrong to come to him. Armstrong complied. As he approached, the officer noticed that one of Armstrong’s hands “was kind of cupped closed.” The officer did not believe Armstrong had a weapon but suspected that he had narcotics in his hand. The officer asked Armstrong to open his hand. The arrest report prepared by the officer as well as the testimony given by the officer and by Armstrong lead this court to the conclusion that the statement was a demand. Under the totality of the circumstances, a reasonable person in Armstrong’s position “would conclude that he or she [was] not free to end the encounter and depart.” See Gipson v. State, 667 So.2d 418, 419 (Fla. 5th DCA 1996) (quoting Popple v. State, 626 So.2d 185, 188 (Fla.1993)). In the present case, Armstrong submitted to the police officer’s show of authority and a seizure occurred. See id.

Accordingly, we reverse the trial court’s order denying the motion to suppress and remand this cause to the trial court with instructions to vacate Armstrong’s judgments and sentences and to discharge him for these convictions.

Reversed and remanded with instructions.

WHATLEY and WALLACE, JJ., Concur.


text:
    STATE of Florida, Appellant, v. Dawn M. GILBERT, John Paul Story, Decarlo Johnson, Appellees.
    Nos. 2D03-5426, 2D03-5480, 2D04-809.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellees.
   NORTHCUTT, Judge.

In three separate Polk County cases, Dawn Gilbert, John Paul Story, and Decar-lo Johnson were charged with failure to redeliver leased property, a third-degree felony in violation of section 812.155, Florida Statutes (2002). The circuit court dismissed each case based on the defense argument that the statute is a prohibited special law and therefore unconstitutional. The State timely appeals and argues that section 812.155 is not a prohibited special law and is, therefore, constitutional. In related cases, this court recently agreed with the State’s position and held that the statute is constitutional. State v. Rose, 876 So.2d 1240 (Fla. 2d DCA 2004) (reversing dismissal of criminal charges). Based on Rose, we reverse the dismissal of criminal charges against Gilbert, Story, and Johnson.

Reversed and remanded.

SALCINES and COVINGTON, JJ., concur.


author: STRINGER, Judge.

text:
    James HAMILTON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Collegiate Funding Services, Inc., Appellees.
    No. 2D03-4011.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2004.

      Bonita M. Riggens, St. Petersburg, for Appellant.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee Unemployment Appeals Commission.
    No appearance for Appellee Collegiate Funding Services LLC.
   STRINGER, Judge.

James Hamilton seeks review of the order of the Unemployment Appeals Commission affirming the appeals referee’s determination that Hamilton is disqualified from receiving unemployment benefits because he was discharged due to misconduct connected with work. We reverse because the referee’s determination is not supported by competent, substantial evidence.

At the hearing before the appeals referee, the only people who testified were Hamilton and Cheryl Kerr. Kerr worked as the staff relations manager for Collegiate Funding Services, Inc. (“the Employer”). According to Kerr, Hamilton was employed as a financial specialist and was discharged for excessive absenteeism. Between September 26 and October 30, 2002, Hamilton took nine personal days off of work, arrived late once, and left early once. Hamilton was given a warning on October 11 that his attendance needed to improve. Kerr admitted she did not know the reason for Hamilton’s absences, but explained that the Employer’s policy was that any unscheduled absences would result in disciplinary action. She also acknowledged that the Employer’s manual provided that employees must call in no later than thirty minutes after the start of their shift.

Hamilton testified that he believed his first five absences, which occurred prior to October 11, 2002, were permissible under the Employer’s policy because he called in before his shift on those days. Hamilton also testified that, on October 11, 2002, his supervisor, Zack Larson, told him that his production was down because of his absences and said that the best way to increase production was to be at work on time. The manager feedback log reflects an entry by Larson which states, “Zack Larson spoke with James re: attendance. James was informed he must adhere to his schedule from this point forward.” Hamilton testified that the Employer changed its policy at that time and required that employees schedule absences in advance. According to Hamilton, the four absences after his October 11 conversation with his supervisor were for the purpose of caring for his ailing mother. He tried to comply with the new policy of scheduling them in advance, but was unable to do so.

Under section 443.101(l)(a), Florida Statutes (2002), a claimant is disqualified from receiving unemployment compensation if Ms discharge resulted from “misconduct connected with his or her work.” Section 443.036(29), Florida Statutes (2002), defines “misconduct” for purposes of determining whether a claimant is disqualified from receiving benefits under section 443.101(1)(a). A claimant who is discharged because of excessive unauthorized absenteeism commits “misconduct” under section 443.036(29). Tallahassee Housing Auth. v. Fla. Unemployment Appeals Comm’n, 483 So.2d 413, 414 (Fla.1986).

It is the employer’s burden to prove excessive unauthorized absenteeism. Id. Specifically, the employer must present “satisfactory proof ... of a serious and identifiable pattern of excessive absenteeism” that is wilful. Mason v. Load King Mfg. Co., 758 So.2d 649, 654 (Fla.2000).

By “unauthorized absences,” we are generally referring to those absences where the employee has wilfully chosen to violate her fundamental obligation to an employer to come to work and carry out her assigned duties. Obviously, the failure of an employee to carry out his or her obligation can be devastating to the functioning of an employer’s business. Excessiveness must also be proven. While we realize that excessiveness may well depend on factors such as the particular employment context and presence or absence of workplace guidelines, we do not deem it unreasonable to require an employer who seeks to deny a former employee unemployment compensation benefits to meet this burden.

Id. at 654-55. Once the employer meets its burden of proving that the employee’s absences were excessive and unauthorized, the burden shifts to the employee to rebut the presumption that the absenteeism constituted “misconduct” under section 443.036(24). Tallahassee Housing Auth., 483 So.2d at 414.

It is clear from the evidence that Hamilton’s nine absences, one late arrival, and one early departure within a two-month period were excessive. However, the Employer has not met its burden of proving that Hamilton’s first five absences were unauthorized. While Kerr testified that the Employer’s policy was that all absences must be scheduled in advance, Hamilton claimed that he was not required to schedule personal days off in advance until the Employer’s policy changed around October 11, 2002. Furthermore, Hamilton said he was not informed that his first five absences were unauthorized. In fact, the only conversation Hamilton related with his supervisor consisted of the supervisor’s statement that Hamilton’s production was down because of his absences. There was no indication in the supervisor’s feedback log that Hamilton’s absences were unauthorized. Additionally, the Employer’s manual provided that employees should call in to report an absence no later than thirty minutes after the start of their shift. It was undisputed that Hamilton “called in” as required. Accordingly, the Employer did not meet its burden of proving that the first five absences were excessive and unauthorized.

While Hamilton conceded that his last four absences were unauthorized, he rebutted any presumption that the absenteeism constituted “misconduct” by presenting uncontroverted evidence that the four absences were justified by a family emergency that would have impelled a reasonable person to miss work. See Gadsden v. Fla. Unemployment Appeals Comm’n, 616 So.2d 1196, 1197 (Fla. 2d DCA 1993); see also Franklin v. Unemployment Appeals Comm’n, 841 So.2d 682, 685 (Fla. 2d DCA 2003) (“Absences that are properly reported to the employer and are for compelling reasons, such as illness, do not constitute misconduct connected with work.”). For these reasons, the appeals referee’s determination that Hamilton was discharged due to misconduct connected with work is not supported by competent, substantial evidence.

Reversed and remanded.

CASANUEVA and VILLANTI, JJ., concur.


author: RAMIREZ, J.

text:
    Anthony Bernard WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3345.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

      Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and WELLS , JJ.

       Judge Wells did not participate in oral argument.

   On Motion for Rehearing Granted

RAMIREZ, J.

We grant the State’s Motion for Rehearing, withdraw our prior opinion rendered November 12, 2003, and substitute this opinion in its stead because we conclude, upon further review, that the prosecution’s question to the defendant on cross-examination whether all of the other witnesses, whose version of events differed from the defendant’s were lying and conspiring against him, was harmless error.

The jury convicted appellant Anthony Bernard Wilson of attempted first degree murder and burglary with a battery while armed with a knife, in connection with the stabbing of Antron Pope inside Pope’s home. Wilson had also been charged, but was acquitted, of aggravated stalking of Pope and of his girlfriend, Shirley Bertrand. Wilson’s theory was self defense, that he had gone to Pope’s home to talk, but Pope came at him with a knife. It was undisputed, however, that Pope suffered multiple stab wounds, several on the back of his head, his arm, shoulder, and abdomen. Several of these wounds were serious enough to have caused death if they had not been promptly treated and all of them needed to be sutured.

After Wilson had denied on cross examination that he had ever harassed or threatened his ex-girlfriend and the victim or that he wanted to reunite with her, the inappropriate questioning included:

Q: You sat there the whole time and listened to what everybody said?
A: Yes.
Q: You heard what Kia said. That you were harassing Shirley, you were coming by constantly and wouldn’t go away?
A: I heard everything.
Q: You heard what Dakeidra said, you were coming to the house and you were harassing Shirley and wanted Shirley back. You heard that?
A: Yes.
Q: You heard Antron’s testimony, yes? A: Yes.
Q: And you heard today, Shirley’s own mother come in here and testify about how you were threatening her daughter and how you were threatening Antron. But they’re all lying?
DEFENSE COUNSEL: Objection. He has to be here during trial.
THE COURT: No speaking objection. Objection overruled. Talk about it sidebar. Continue.
DEFENSE COUNSEL: May I have a sidebar? It is improper to ask one witness—
THE COURT: Stop, stop. That is a speaking objection.
Q: Do you believe that all these witnesses are conspiring against you?
A: Well—
Q: That’s what you think, this is a big conspiracy? You’ve got the officer. You’ve got Shirley’s mother. You’ve got Shirley’s friend. You got Antron, the ex-boyfriend. You got everybody coming in here saying the same thing, but it is because they are conspiring against you?
DEFENSE COUNSEL: Objection.
That is argumentative.
THE COURT: Overruled.
Q: Yes or no, are they conspiring against you?
A: Yes.

We agree with Wilson that the prosecution’s questions were improper. In Whitfield v. State, 549 So.2d 1202 (Fla. 3d DCA 1989), we stated that “[i]n a criminal prosecution, it is improper cross examination to ask a witness if another witness (who had previously testified) ‘was lying.’ ” We are not impressed by the State’s argument on appeal that we should draw a distinction between “lying” and “conspiring.”

Such an error, however, is subject to a harmless error analysis. See Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993). We thus conclude that the prosecution’s isolated questions were questions that do not warrant reversal as they were harmless beyond a reasonable doubt. This conspiracy of witnesses against Wilson was not mentioned during the State’s closing argument. The questions cannot possibly vitiate the entire eight-day trial, and they did not change the physical evidence of multiple stab wounds suffered by Pope. Furthermore, the context of the questions followed other questions concerning the harassing and threatening of Pope and his girlfriend Shirley, which went more to the charges of stalking, for which Wilson was acquitted.

We also find no merit in Wilson’s argument that the trial court improperly admitted a substantial amount of hearsay testimony. A great deal of this testimony was admitted without objection. Much of it was properly admitted as excited utterances or state of mind exceptions to the hearsay rule. We thus find no abuse of discretion in these evidentiary rulings.

Affirmed.

      . The State argues the objection did not sufficiently apprize the trial court of the grounds of the objection. It is proper for the court to require counsel to state the legal grounds for the objection without making a "speaking objection.” We hold that the efforts by defense counsel were sufficient by objecting, with the trial court cutting him off, followed by a request for a side-bar, which the trial court did not grant. We note, however, that defense counsel should have stated "improper cross examination,” or some similar objection, without attempting to make a speech, which the trial court properly cut off.


text:
    Orlando MORALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1832.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Orlando Morales, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GERSTEN and GREEN, JJ.
   PER CURIAM.

Orlando Morales appeals an order denying his motion for postconviction relief wherein he alleges vindictive sentencing for failure to accept a plea offer.

This court has taken judicial notice of its file in Morales v. State, 869 So.2d 562 (Fla. 3d DCA 2004). In that motion, the trial court denied, after an evidentiary hearing, the claim of defendant-appellant Morales that his trial counsel had been ineffective for advising him to reject the State’s plea offer. The sentencing transcript makes clear that the trial court’s sentencing decision was based on the testimony which came before the court at trial. The current postconviction motion was properly denied. See Wilson v. State, 845 So.2d 142 (Fla.2003).

Affirmed.


text:
    Candido T. ESTRADA, Appellant, v. STATE of Florida, Appellee.
    No. 3D02-3230.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Candido T. Estrada, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Swain v. State, 553 So.2d 1331 (Fla. 1st DCA 1989).


text:
    B.L.J., Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2900.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before LEVY, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed, except to the extent, as the State concedes, the Court’s scrivener’s error in the Disposition Order should be corrected to reflect that adjudication was withheld.


text:
    Shirley R. BUTLER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, etc., et al., Appellees.
    No. 3D03-2991.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Shirley R. Butler, in proper person.
    John D. Maher (Tallahassee), for appel-lee, Unemployment Appeals Commission.
    Before GERSTEN, GREEN and WELLS, JJ.
   PER CURIAM.

Affirmed. See Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002).


text:
    Evens FAUSTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1143.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Evens Faustin, in proper person.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Evens Faustin appeals from an order of the trial court denying his motion for correction of sentence for jail time credit. We reverse and remand for correction of Faustin’s sentence to reflect nine hundred and sixty-three (963) days of credit for time served, as the record reflects that Faustin was booked into jail on March 30, 1999 and was sentenced on November 20, 2001 for a total of 963 days. Faustin need not be present.

Reversed and remanded for correction of sentence.


text:
    Meltin A. DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1734.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Meltin A. Davis, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GERSTEN and GREEN, JJ.
   PER CURIAM.

Meltin A. Davis appeals an order denying his motion to correct illegal sentence. Defendant-appellant Davis contends that he does not qualify as a habitual violent felony offender (“HVFO”) because his offense at conviction was not one of the offenses enumerated in the HVFO statute. The defendant misinterprets the statute. An offender qualifies as an HVFO if he “has previously been convicted of a felony or an attempt or conspiracy to commit a felony” enumerated in the statute. § 775.084(l)(b)l., Fla. Stat. (2003) (emphasis added). The current offense for which an offender is being habitualized under the HVFO statute need not be an enumerated offense. See id. § 775.084(1)(b); Tillman v. State, 609 So.2d 1295 (Fla.1992).

Affirmed.


text:
    Carlton BANNISTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2430.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Robert Finley, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin Kinney, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

After a careful review we conclude that there is no basis for reversing Bannister’s convictions.

Affirmed.


author: STEVENSON, J.

text:
    E.I. DU PONT DE NEMOURS AND COMPANY, Appellant, v. AQUAMAR S.A., Emelorsa-Empacadora El Oro S.A. and Industrial y Agricola 44 S.A., Appellees.
    No. 4D01-1642.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Rehearing Denied Aug. 30, 2004.

      Jane Kreusler-Walsh and Rebecca Mer-cier-Vargas of Jane Kreusler-Walsh, P.A., West Palm Beach, Daniel F. Molony of Shook, Hardy & Bacon, L.L.P., Tampa, and Thomas M. Sherouse of Shook, Hardy & Bacon, L.L.P., Miami, for appellant.
    Bruce Rogow, Beverly A. Pohl and Cheryl Zickler of Bruce S. Rogow, P.A., and Walter G. Campbell, Jr., Robert J. McKee and Ivan Cabrera of Krupnick, Campbell, Malone, Roselli, Buser, Slama, Hancock & McKee, Fort Lauderdale, for appellee Aquamar S.A.
   STEVENSON, J.

The appellant, E.I. Du Pont de Nemours and Company (“Du Pont”), manufactures Benlate, a fungicide. Starting in the late 1980’s/early 1990’s, Benlate was applied to banana farms in Ecuador to prevent the spread of a disease called Black Sigatoka. After nearby shrimp farms, including Aquamar, S.A., whose water source is the local rivers, began to experience massive shrimp mortalities, they filed suit against Du Pont. A jury found that Du Pont was negligent in its distribution of Benlate, awarding damages in excess of $12 million dollars. Du Pont appeals, asserting that Aquamar’s tort claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, that the trial court made a number of erroneous evidentiary rulings, and that the $12 million verdict includes improper elements of damages. We find merit in Du Pont’s preemption argument and reverse.

The Causation & Negligence Theories

In the late 1980’s/early 1990’s, Black Sigatoka, a disease that affects banana crops, spread to Ecuador. To combat the disease, banana farmers rotated three fungicides: Benlate, manufactured by Du Pont; Tilt, manufactured by Ciba-Geigy; and Calixin, manufactured by BASF. The rotation of the fungicides was designed to prevent the disease from becoming resistant to the chemicals and was recommended by the Fungicide Resistance Action Committee (“FRAC”). Representatives of Du Pont were members of FRAC.

At trial, Aquamar took the position that Benlate is the cause of a disease known as Taura Syndrome and that Taura Syndrome either directly caused the shrimp deaths or exposure to benomyl, the active ingredient in Benlate, had so weakened the shrimp’s immune system that they were susceptible to the disease. When benomyl comes into contact with water, it breaks down into a compound known as MBC or earbedazim. MBC was found in the dead shrimp. For its part, Du Pont acknowledged that Benlate is toxic to shrimp and that it never tested the effects of benomyl on Pacific White Shrimp, the variety farmed at Aquamar. Du Pont contended, however, that Benlate was not responsible for the shrimp deaths and that Aquamar could not link the MBC found in Aqua-mar’s shrimp to Benlate. Du Pont maintained that other fungicides used in the area, including a chemical known as thio-phanate methyl, also broke down into MBC. Ultimately, Du Pont argued that the cause of the shrimp deaths was not a toxin at all, but, rather, a new virus — the Taura Syndrome Virus. Both sides called a litany of experts.

On the issue of Du Pont’s negligence, Aquamar pursued three separate theories. First, Aquamar argued that Du Pont had been negligent in failing to adequately test Benlate, eliciting testimony from Du Pont employees that the company never tested the effects of the product on Pacific White Shrimp, had .done only limited testing regarding the product’s run-off potential, and had performed no testing specific to Ecuador. In a somewhat similar vein, Aquamar also suggested that Du Pont had been negligent in failing to warn the banana farmers of the run-off potential and the product’s toxicity to shrimp as the label applied to Benlate exported to Ecuador indicated that the product was toxic to fish, but made no mention of shrimp.

Last, but not least, Aquamar asserted that Du Pont had been negligent in its distribution of Benlate. The last of these theories was riot as clearly defined at trial as the others. Based upon counsel’s closing argument, however, it appears the theories underlying the claim were twofold. First, counsel pointed to Du Pont’s failure to warn of or help solve run-off problems in the face of FRAC’s recommendation regarding product, rotation and Du Pont’s knowledge .that the product was being aerially applied. On appeal, Aqua-mar further fleshes out this argument by asserting that Du Pont was negligent in “advising and instructing Ecuadorians that Benlate should be widely applied in combination with the fungicides Tilt and Calixin....” Second, counsel pointed to Du Pont’s actions or the lack thereof after it was notified by the Ecuadoran government, in September 1993, of- the shrimp deaths and the suspected link to fungicide. The jury resolved only the negligent distribution theory in favor of the plaintiffs. Against this backdrop, we now turn to Du Pont’s first point on appeal, wherein it argues 'that the jury verdict cannot stand because Aquamar’s claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.A. §§ 136-136y.

Does the Federal Insecticide, Fungicide, and Rodenticide Act preempt Aquamar’s state law claim for negligent distribution?

The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C.A. §§ 136-136y (1999), provides a comprehensive scheme for pesticide labeling and generally makes it unlawful for any United States manufacturer to sell an unregistered pesticide, stating that “no person in any State may distribute or sell to any person any pesticide that is not registered under this subchapter.” See § 136a(a). Registration is an involved process culminated by the EPA Administrator’s approval of the product’s label and determination that other FIFRA requirements have been satisfied. See § 136a(c)(5)(B). The manufacturer must file information including the proposed label, the purpose of the pesticide and “any directions for its use” and, if requested, test descriptions and results. . See 7 Ú.S.C.A. § 136a(c)(l)(C)-(F); 40 C.F.R. § 156.10 (2003). The EPA reviews the filing and the label, and determines whether the label information is adequate to protect the public from misleading claims or “unreasonable adverse” environmental effects. See 7 U.S.C.A. § 136a(c)(5).

Despite the prohibition against the sale of unregistered pesticides in the United States, pesticides that are intended solely for export need not be “registered.” Pursuant to § 136o, a manufacturer in the United States may sell or distribute an unregistered pesticide to a foreign country provided it complies with specified labeling requirements and provides a statement to the foreign country indicating that the product is not registered for use in the United States. 7 U.S.C.A. § 136o(a); 40 C.F.R. § 168.65. A violation of any of FI-FRA’s requirements subjects the manufacturer to civil penalties imposed by the EPA and to possible criminal penalties. § 1361.

In the face of such comprehensive sale and labeling regulation, Congress included an express preemption clause in FIFRA, prohibiting any “State” from “imposfing] or continu[ing] in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.” § 136v(b). This language has been interpreted as prohibiting “any state common law cause of action that rests on an alleged failure to warn or convey information about a product through its label.” See In re DuPont-Benlate Litig., 859 F.Supp. 619, 622 (D.P.R.1994); ISK Biotech Corp. v. Douberly, 640 So.2d 85, 88 (Fla. 1st DCA 1994)(holding that “FIFRA preempts all state common law actions that are associated in any way with a claim of inadequate labeling”); see also Lowe’s Home Ctrs., Inc. v. Olin Corp., 313 F.3d 1307, 1310 (11th Cir.2002).

Here, the trial court concluded that FI-FRA and its preemption provision were inapplicable because the plaintiffs claims arose from use of the pesticide in Ecuador. This was error. Although producers of pesticides intended for export are exempted from FIFRA’s registration requirements with the EPA, exported pesticides must nevertheless be labeled accurately and include certain information. See § 136o(a)(l)-(2). Significantly, FIFRA mandates that a pesticide intended for export may not be “misbranded.” See §§ 136(p)-(q). A pesticide intended for export is misbranded if, among other requirements:

(G) the label does not contain a warning or caution statement which may be necessary and if complied with, together with any requirements imposed under section 136a(d) of this title, is adequate to protect health and the environment;

7 U.S.C.A. § 136(q)(l)(G)(emphasis added).

In addition, pesticides intended for export are subject to section 136(q)(2), which provisions indicate that a pesticide may be “misbranded” based upon the label’s failure to include certain information, such as an ingredient statement, use classification, producers information, “poison” and skull and crossbones for highly toxic substances, and a first aid statement. The foregoing requirements adequately demonstrate Congress’s intent to regulate the “labeling” of dangerous pesticides produced in the United States, but exported to foreign markets.

Aquamar argues that the requirements of FIFRA were not intended to bar foreign plaintiffs from asserting claims against United States corporations in state courts for damages caused by the use-of pesticides abroad. We agree, of course, that Ecuador is not a “State” and FIFRA’s preemption provision could not be read to prohibit the country of Ecuador from imposing additional labeling or warning requirements upon pesticide manufacturers. And, under appropriate jurisdictional circumstances, a foreign plaintiff, relying on foreign law, could probably assert an inadequate warning or “labeling” claim in a state court based on injury arising from the use of a United States-manufactured pesticide abroad. In .this case, however, the plaintiff elected to proceed in the State of Florida and under Florida law. Consequently, whether the pesticide at issue was registered for use in the United States and then exported, or simply exported without registration for use in the United States, FIFRA governs the product’s label and prohibits the State of Florida from imposing any additional or different requirements.

Indeed, as the court noted in Mortellite v. Novartis Crop Protection, Inc., 278 F.Supp.2d 390, 397 (D.N.J.2003)(quoting Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 601, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991)): “[Cjourts have recognized that FIFRA is more than ‘a labeling law,’ but is ‘a comprehensive regulatory statute.’ ” Whether the product was registered in the United States and then exported or simply exported without registration for use in the United States, Du Point was obligated to comply with a host of labeling and administrative requirements imposed by FIFRA relating to the safety of the product and the adequacy of any necessary warnings. Thus, the question of whether the product’s label contained adequate and necessary warnings was a matter for administrative determination within the context of federal regulations, not Florida common law.

In Papas v. Upjohn Co., 985 F.2d 516, 518 (11th Cir.l993)(quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)), the court read FIFRA’s preemption provision in section 136v(b) to “ ‘suggest[ ] no distinction between positive enactments and the common law.’ ” The court explained that common law actions constituted an “additional” requirement within the meaning of § 136v(b) where damage awards are a form of state regulation. Thus, the court held that “[tjo the extent that state law actions for damages depend upon a showing that a pesticide manufacturer’s ‘labeling or packaging’ failed to meet a standard ‘in addition to or different from’ FIFRA requirements, section 136v pre-empts the claims.” Id. (quoting' language from § 136v(b)).

The question, then, becomes whether Aquamar’s negligent distribution claim, the’only claim upon which it prevailed at trial, is truly nothing more than a disguised labeling claim, as argued by Du Pont. “When a claim, however couched, boils down to an assertion that a pesticide’s label failed to warn of the damage plaintiff allegedly suffered, the claim, is preempted by FIFRA.” Etcheverry v. Tri-Ag Serv., Inc., 22 Cal.4th 316, 93 Cal.Rptr.2d 36, 48, 993 P.2d 366 (2000).

Where it is not clear whether a claim is preempted, the determination of whether a claim is permissible or preempted depends on- “whether one- could reasonably foresee that the-manufacturer, in seeking to avoid liability for the error, would choose to alter the product or the label.”

Arnold v. Dow Chem. Co., 91 Cal.App.4th 698, 110 Cal.Rptr.2d 722, 736 (2001)(quot-ing Worm v. Am. Cyanamid Co., 5 F.3d 744, 747-48 (4th Cir.1993)); see also Dow Agrosciences LLC v. Bates, 332 F.3d 323, 331 (5th Cir.2003)(holding that farmer’s claims were preempted by § 136v(b) “if a judgment against Dow would induce it to alter its product label”), petition for cert. filed, No. 03-388, 72 U.S.L.W. 3184 (U.S. Sept. 9, 2003).

In Schuver v. E.I. Du Pont de Nemours & Co., 546 N.W.2d 610 (Iowa 1996), the Iowa Supreme Court addressed negligence claims remarkably similar to those asserted by Aquamar and concluded that they were preempted by FIFRA. There, an O’Brien County farmer, Raymond Schu-ver, applied Preview, an herbicide manufactured by Du Pont, to his soybean crop in 1988, 1989, and 1990. Schuver rotated his crop land between soybeans and corn and, in 1989, began to notice problems with his corn crop. An agronomist with the retailer who sold the Preview to Schu-ver attributed the damage to “residual carryover effect,” i.e., the length of time that an application of pesticide might harm subsequently planted crops. Id. at 611. Schuver sued the retailer and Du Pont, alleging negligence in manufacturing and sale of the product to Schuver (count I); strict liability in that the product was defective and unreasonably dangerous (count II); and breach of an implied warranty of merchantability (count III). In count IV, Schuver alleged that the retailer made and breached an express warranty that Preview was the appropriate product for use on the Schuver farm. See id. at 611-12. With respect to the claims against Du Pont, the district court found that they were preempted by FIFRA. Schuver appealed.

On appeal, Schuver conceded that the implied warranty claims were preempted, but steadfastly argued that the negligence and strict liability claims were not preempted because they were not labeling claims. According to Schuver’s counsel, Du Pont’s negligence was not in any shortcoming of the label, but rather in (1) marketing Preview in O’Brien County when Du Pont either knew or should have known that soil in O’Brien County was susceptible to residual carryover; (2) failing to withdraw Preview from sale in O’Brien County after learning of crop damage caused by Preview in that county; (3) failing to test Preview in O’Brien County soil types before selling the product in O’Brien County; and (4) failing to timely notify O’Brien County farmers of Preview’s propensity for residual carryover. See 546 N.W.2d at 613. The Iowa Supreme Court concluded that all of this was “merely another way of arguing that Du Pont’s labels should have warned against using Preview in O’Brien County” and, thus, the district court had correctly concluded that the claims were preempted by FIFRA. Id. at 614; see also Hue v. Farmboy Spray Co., 127 Wash.2d 67, 896 P.2d 682 (1995)(en banc).

By substituting “Ecuador” for “O’Brien County,” “Benlate” for “Preview,” and “run-off potential” for “residual carryover,” the similarity between Schuver and the instant case is apparent. Moreover, it is clear that, to avoid liability for Aqua-mar’s claimed negligence, the remedy is for Du Pont to specifically warn of run-off potential and toxicity to shrimp. Consequently, we find that Aquamar’s negligent distribution claim is, at its heart, a claim challenging the product’s label and the failure to warn. As such, FIFRA preempts the state law claim.

Lastly, we reject Aquamar’s argument that this case amounts to more than a failure to warn claim since Du Pont, through its role in the Fungicide Resistance Action Committee (FRAC), allegedly specifically advised that the banana farmers needed to rotate the fungicides to avoid fungicide resistance. In our view, Aquamar’s claim in this regard is akin to an assertion that a manufacturer’s point-of-sale advertisement or information material was inadequate to warn of the dangers of a product. In Papas, the Eleventh Circuit stated:

[A]ny claims that point-of-sale signs, consumer notices, or other informational materials failed adequately to warn the plaintiff necessarily challenge the adequacy of the warnings provided on the product’s labeling or packaging. If a pesticide manufacturer places EPA-approved warnings on the label and packaging of its product, its duty to warn is satisfied, and the adequate warning issue ends.

985 F.2d at 519. Additionally, Aquamar did not plead a cause of action for negligent misrepresentation or fraud with regard to these “off-label” statements.

In conclusion, our decision renders the additional issues raised on appeal by Du Pont moot. Accordingly, we reverse the jury verdict and remand for entry of judgment in favor of the defendant below, Du Pont.

REVERSED and REMANDED.

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

      . Initially, two other shrimp farms, Emelor-sa-Empacadora el oro S.A. and Industrial Y Agricola 44 S.A., were also plaintiffs. Sometime in 1997, however, Aquamar bought out these farms.

      . A "person” is "any individual, partnership, association, corporation, or any organized group of persons whether incorporated or not.” 7 U.S.C.A. § 136(s). A "State” means "a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa.” § 136(aa).

      . It is well-established that our Constitution’s Supremacy Clause gives Congress the power to preempt state law. Preemption can occur in three ways: (1) the federal statute contains express language of preemption, so-called express preemption; (2) the scheme of federal regulation is so pervasive that there is no room for state regulation, known as field preemption; and (3) compliance with federal and state law is impossible, conflict preemption. See Blinn v. Fla. Dep’t of Transp., 781 So.2d 1103, 1109 (Fla. 1st DCA 2000).

      4. Compare Lowe v. Sporicidin, Int’l, 47 F.3d 124, 130 (4th Cir.l995)(suggesting that claims against manufacturers for advertisements that "substantially differ” from the label may be actionable),


author: SCHWARTZ, Chief Judge.

text:
    AMERICAN INTERNATIONAL GROUP, INC., Illinois National Insurance Co., and National Union Fire Insurance Co. of Pittsburgh, PA, Appellants, v. SIEMENS BUILDING TECHNOLOGIES, INC., as corporate successor to Security Technologies Group, Inc., Appellee.
    No. 3D04-112.
    District Court of Appeal of Florida, Third District.
    June 2, 2004.
    Rehearing and Rehearing En Banc Denied Sept. 10, 2004.

      Steel Hector & Davis and Lewis F. Murphy and Wendy S. Leavitt and Carlotta J. Roos, Miami, for appellants.
    Julian H. Kreeger; Podhurst Orseck and Joel D. Eaton, Miami, for appellee.
    Before SCHWARTZ, C.J., and SHEVIN and WELLS, JJ.
   SCHWARTZ, Chief Judge.

The trial judge denied the appellant-insurers’ application for arbitration of a coverage dispute in accordance with a provision of their pertinent insurance polices. We reverse.

I.

The trial court’s ruling was based on its determination that, under the so called reverse-preemption doctrine, the McCarran-Ferguson Act, which prevents a federal statute from “invalidat[ing], impair[ing], or superseding] any law enacted by any State for the purpose of regulating the business of insurance,” 15 U.S.C. § 1012, precluded the applicability of the Federal Arbitration Act, which would have otherwise validated the arbitration clause. The court so held on the ground that clause was in conflict .with section 627.428(1) of the Florida Insurance Code, that a successful insured in an action like this one on an insurance policy must be awarded attorney’s fees. See § 627.428(1), Fla. Stat. (2003); Moore v. Liberty Nat’l Life Ins. Co., 267 F.3d 1209 (11th Cir. 2001), cert. denied, 535 U.S. 1018, 122 S.Ct. 1608, 152 L.Ed.2d 622 (2002); Mayard-Paul v. The Mega Life & Health Ins. Co., No. 01CV3488, 2001 WL 1711519 (S.D.Fla. Dec.21, 2001). This conclusion— that the arbitration clause was in validated by section 627.428(1) — was, in turn, based on the fact that the clause in question unlike the statute, does not require,' but merely permits an award of attorney’s'fees in such a situation. (“The arbitrators’ award shall not include ... unless otherwise decided by the arbitrators, costs or attorneys’ fees.”[e.s.]). Because the controlling law is that such a provision does not, within the meaning of the McCarran-Ferguson Act “invalidate, impair, or supersede” section 627.428(1), we must disagree.

In PacifiCare Health Systems, Inc. v. Book, 538 U.S. 401, 123 S.Ct. 1531, 155 L.Ed.2d 578 (2003), the Supreme Court squarely held that the mere fact that arbitrators may, even though not required to do so by the arbitration clause, reach a decision in accordance with the allegedly conflicting law, does not preclude -arbitration. That PacifiCare requires reversal in this case is demonstrated by Fernandez v. Clear Channel Broadcasting, Inc., 268 F.Supp.2d 1365 (S.D.Fla.2003). That case concerned a conceptually identical situation in which McCarran-Ferguson preclusion was asserted because of an alleged conflict between a 'permissive attorney fees provision of the arbitration clause and a mandatory attorney’s fees requirement of the Fair Labor Standards Act. The court held:

Plaintiff further argues that the Arbitration ’ Agreement is unenforceable because “the Agreement only provides for attorneys fees in the ‘discretion’ of the arbitrators” in contravention of the “FLSA [which] provides for a mandatory award of attorney’s fees.... ” Response at 5. As stated above, the Arbitration Agreement provides that “if a party is entitled to attorneys’ fees under any federal, state or local statute or law, the arbitrator will award those fees, pursuant to the governing law, at his/her discretion.” Arbitration Agreement at 5. Plaintiff argues that the language “at his/her discretion” renders the Arbitration Agreement unenforceable because it deprives Plaintiff a type of relief that would otherwise be available in court. See Response at 5.
Plaintiffs claim that the Arbitration Agreement will deprive him of the mandatory attorney’s fees if he succeeds at mediation is premature. In In re Humana Inc. Managed Care Litigation, 285 F.3d 971 (11th Cir.2002), the Eleventh Circuit had affirmed the district court’s finding that the defendant managed-health-care organizations’ arbitration clauses, which specifically prohibited punitive damages, were unenforceable because they precluded the recovery of treble damages under the Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. See In re Humana, 285 F.Sd at 973. On appeal, the Supreme Court disagreed and found that the terms of the agreements were ambiguous as to whether they actually prevented the arbitrator from awarding treble damages. See PacifiCare Health Systems, Inc. v. Book, 538 U.S. 401, 406-07, 123 S.Ct. 1531, 1535-36, 155 L.Ed.2d 578 (2003). The Supreme Court compelled arbitration, stating that
we should not, on the basis of “mere speculation” that an arbitrator might interpret these ambiguous agreements in a manner that casts their enforceability into doubt, take upon ourselves the authority to decide the antecedent question of how the ambiguity is to be resolved. In short, since we do not know how the arbitrator will construe the remedial limitations, the questions whether they render the parties’ agreements unenforceable and whether it is for courts or arbitrators to decide enforceability in the first instance are unusually abstract [and, therefore,] the proper course is to compel arbitration. Id.

Fernandez, 268 F.Supp.2d at 1368-69. See also Curry v. MidAmerica Care Foundation, No. TH02-0053-CT/H, 2002 WL 1821808 (S.D.Ind. June 4, 2002)(compelling arbitration and construing arbitration agreement as allowing the arbitrator to award fees where allowed by statute); Large v. Conseco Finance Servicing Corp., 292 F.3d 49 (1st Cir.2002)(eompelling arbitration where arbitration clause gave arbitrators the discretion to award costs and fees); DeGroff v. MascoTech Forming Technologies, Inc., 179 F.Supp.2d 896 (N.D.Ind.2001)(recognizing strong policy favoring enforcement of arbitration agreements and holding that discretionary fee provision did not preclude fees or void agreement). See also Royal Caribbean Cruises, Ltd. v. Universal Employment Agency, 664 So.2d 1107, 1108 (Fla. 3d DCA 1995)(recognizing “that arbitration clauses ... are to be given the broadest possible interpretation to accomplish the salutary purpose of resolving controversies out of court.”).

On the other hand, neither of the appel-lee’s contrary arguments are well taken. Specifically, Mayard-Paul is not controlling because the arbitration clause in that case specifically forbade an award of attorney’s fees, thus rendering the conflict between the clause and the Federal Arbitration Act and section 627.428(1), direct and inescapable. Secondly, the claim that Pa-cifiCare applies only to the arbitrator’s resolution of ambiguous provisions in the agreement is belied by the authorities, which squarely hold otherwise: See Discount Trophy & Co. v. Plastic Dress-Up Co., No. Civ. 3:03CV2167(MRK), 2004 WL 350477, at *6 n. 10, (D.Conn. Feb.19, 2004)(“[Ambiguity or lack of clarity in the arbitration clause] is not the point of [Paci-fiCare and Vimar]. Instead, each decision recognizes that when it is unclear whether the arbitrator will rule in a way that (in those cases) would be contrary to federal law, the FAA requires the Court to enforce the arbitration clause, and leave that decision in the first instance to the arbitrator.”); Bailey v. Ameriquest Mortgage Co., 346 F.3d 821, 823-24 (8th Cir.2003)(‘Tn PacifiCare ... Where plaintiffs alleged that the limited remedies in the agreement to arbitrate were inconsistent with their federal statutory rights, the Court held that it was proper to compel arbitration because ‘we do not know how the arbitrator will construe the remedial limitations.’ ... When an agreement to arbitrate encompasses statutory claims, the arbitrator has the authority to enforce substantive statutory rights, even if those rights are in conflict with contractual limitations in the agreement that would otherwise apply.... [T]he extent of an arbitrator’s procedural and remedial authority are issues for the arbitrator to resolve in the first instance.”); Ciago v. Ameriquest Mtg. Co., 295 F.Supp.2d 324, 333 (S.D.N.Y.2003)(“ ‘[A]rbitrators are perfectly capable of protecting statutory rights when the parties have- conferred the authority to decide statutory claims.’ ’^(quoting Bailey, 346 F.3d at 823).

II.

In a fall-back, right-for-the-wrong-reason argument, the appellee also claims that the arbitration clause is unenforceable because of its preclusion of an award of punitive damages. The McCar-ran-Ferguson Act limits reverse preemption, however, only to laws “enacted by any State.” 15 U.S.C. § 1012. In this case, as in American Pioneer Life Insurance Co. v. Gorin, 829 So.2d 238, 238 (Fla. 3d DCA 2002), the plaintiff has “failed to ‘demonstrate that application of the [Federal Arbitration Act] would invalidate, impair, or supersede a particular state law that regulates the business of insurance.’ ” (citing American Heritage Life Insurance Co. v. Orr, 294 F.3d 702, 708 (5th Cir. 2002)). While the insured cites section 624.155, Florida Statutes (2003), (a) the insured’s complaint does not seek damages under that statute and (b) section 624.155, Florida Statutes (2003), is in any event not a “law ... regulating insurance”, to which McCarran-Ferguson might apply. Anschultz v. Connecticut General Life Insurance Co., 850 F.2d 1467 (11th Cir.1988). While it is true that the clause precludes an otherwise available claim for punitive damages on the insured’s claim of fraud, which is alleged in the complaint, that punitive damage claim is conferred only by the common law, not by statute. It is well settled that the parties are free to “contract out,” by an arbitration provision or otherwise, of any common law remedy which might otherwise be available. See 17 Am.Jur.2d Contracts § 709 (2004).

For these reasons, the order on review is reversed and the cause remanded with directions to submit the controversy to arbitration.

Reversed and remanded.

      . 9. ARBITRATION
      It is hereby understood and agreed that all disputes or differences which may arise under or in connection with this Agreement, including any determination of the amount of Loss, shall be submitted to the American Arbitration Association under and in accordance with its then prevailing commercial arbitration rules....
      Any such arbitration shall take place in New York, New York. The internal laws of the state of New York shall govern the construction and interpretation of the provisions of this Agreement without giving effect to the principles of conflict of laws thereof; provided, however, that the terms, conditions, provisions and exclusions of this Agreement are to be construed in an evenhanded fashion as between the parties, including without limitation, where the language of this Agreement is alleged to be ambiguous or otherwise unclear, the issue shall be resolved in the matter most consistent with the relevant terms, conditions, provisions or exclusions of the policy (without regard to the authorship of the language or the doctrine of reasonable expectation of the parties and without any presumption or arbitrary interpretation or construction in favor of either party or parties) and in accordance with the intent of the parties.
      The written decision of the arbitrators shall be provided to both parties and shall be binding on them. The arbitrators' award shall not include punitive or exemplary damages except to the extent recoverable as Loss, or, unless otherwise decided by the arbitrators, costs or attorneys’ fees. Except as specifically provided herein, each party shall bear equally the expenses of the arbitration. The decision of the arbitrators shall be enforceable in any court having jurisdiction over the party against whom the award was rendered.

      . 627.428 Attorney's fee.-—
      (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or , decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiaty’s attorney prosecuting the suit in which the recovery is had.

      . The arbitrators' award shall not include punitive or -exemplary damages except to the extent recoverable as Loss, or, unless otherwise decided by the arbitrators, costs or attorneys' fees, [e.s.]

      . Our decision makes it unnecessary to consider the effect of the appellants’ specific concession in open court at oral argument that the arbitrators would, in fact, be required to award attorney’s fees if they ruled for the appellee on the underlying coverage dispute. See Curry v. MidAmerica Care Foundation, No. TH02-0053-CT/H, 2002 WL 1821808 (S.D.Ind. June 4, 2002). This does not mean however that the appellants are not bound by that undertaking.

      . 624.155 Civil Remedy.—
      (4) Upon adverse adjudication at trial or upon appeal, the authorized insurer shall be liable for damages, together with court costs and reasonable attorney's fees incurred by the plaintiff.'
      (5) No punitive damages shall be awarded under this section unless the acts giving rise to the violation occur with such frequency as to indicate a general business practice and these acts are:
      (a) Willful, wanton, and malicious;
      (b) In reckless disregard for the rights of any insured; or
      (c) In reckless disregard for the rights of a beneficiary under a life insurance contract.
      Any person who pursues a claim under this subsection shall post in advance the costs of discovery. Such costs shall be awarded to the authorized insurer if no punitive damages are awarded to the plaintiff.