author:
MAY, J.
      HAZOURI, J.,

text:
    Keith BASSETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3900.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Rehearing Denied Nov. 29, 2006.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The lawfulness of an officer’s actions in responding to a call is questioned in this appeal. The defendant appeals his conviction and sentence for resisting without violence. He argues the court erred in: (1) denying the defense motion for judgment of acquittal; (2) denying the defense motion for continuance; (3) instructing the jury; and (4) denying the defense motion for mistrial. We find no error and affirm.

The evidence revealed that the arresting officer arrived at the defendant’s home after receiving a call for service. He made contact with the defendant’s wife, who exited the house to speak with the officer. The officer spoke with the wife on the porch for approximately fifteen to twenty minutes. The backup officer was present for most of the interview. The wife appeared scared. During that time, the officers heard a click at the door. When the interview concluded, the wife attempted to reenter the house, but the door was locked.

The arresting officer testified that he and the backup officer approached the door and knocked, trying to speak with the defendant. The door was unlocked and opened. At that point the wife went inside the house and the arresting officer attempted to follow her to complete the investigation. As the officer entered the threshold of the door, the defendant slammed the door on him.

Because of safety concerns for the wife, the arresting officer grabbed the door handle to prevent the door from being locked. As he did so, he took a step or two into the house when the defendant “immediately aggressively” pushed the officer in the chest, causing the officer to stagger back. The officer attempted to grab the defendant, who was very sweaty and smelled of alcohol. When he did so, he advised the defendant he was under arrest. The defendant then pushed the officer several (six to seven) times, each time lowering his center of gravity and putting his weight behind the push. During the shoving, the defendant was yelling and screaming at the officer.

On cross-examination, the arresting officer testified that he had probable cause for a resisting without violence charge at the time the defendant slammed the door on him. On re-direct the officer clarified that the wife had reported verbal abuse in the form of threats, a type of mental intimidation characterized in the domestic violence statutes.

The defendant first argues that the court erred in denying his motion for judgment of acquittal because the state failed to prove the officer was in the lawful execution of a legal duty when he entered the defendant’s house. He suggests that absent consent, a warrant, or exigent circumstances, the officer’s entry into the house was not the lawful execution of a legal duty.

We review trial court rulings on motions for judgment of acquittal de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id.

The record reveals the officer was in the process of investigating a call to insure the wife’s safety. The complainant appeared scared. She advised law enforcement of verbal threats made by the defendant, who had locked her out of the house and continued to yell at her throughout the investigation. Immediately after the wife entered the home, the defendant attempted to physically prevent the officers from entering, thereby potentially imprisoning the wife. Had law enforcement left without completing its investigation, and a tragedy occurred inside the house, surely law enforcement would have been faulted for not taking sufficient precaution to protect the wife’s safety.

“[P]olice may enter a residence without a warrant if an objectively reasonable basis exists for the officer to believe that there is an immediate need for police assistance for the protection of life or substantial property interests.” Seibert v. State, 92S So.2d 460, 468 (Fla.2006). It is the “reasonableness of the officer’s belief at the time of entry” that is to be considered on review. Id. Given these facts, the officer reasonably believed that entry was necessary for the protection of the wife.

The State had to prove three elements: (1) the defendant knowingly and willfully resisted, obstructed, opposed the officer by doing violence or offering to do him violence; (2) the officer was engaged in the lawful execution of a legal duty; and (3) the victim was an officer. Fla. Std. Jury Instr. (Crim.) 21.1. When the evidence is looked at in the light most favorable to the State, sufficient evidence existed to warrant the jury’s consideration of the facts.

The defendant’s second issue concerns the court’s instructions to the jury. The defendant acknowledges the court correctly instructed the jury on the charged offense, resisting with violence. The defendant argues, however, the court erred in instructing the jury on the lesser-included charge of resisting without violence when it failed to include “lawful” before the words: “execution of a legal duty.” This omission appeared in the elements of the lesser-included offense and in the court’s instruction that “an investigation or affecting an arrest constitutes [lawful] execution of a legal duty.” We agree the instruction was imperfect, but find the error does not rise to the level of fundamental.

First, while the defendant did not request the lesser-included instruction, it agreed to it in the precise form it was given. Second, the defendant did not later object to the instruction when given. Third, the instruction on the charged offense correctly included the word “lawful.” Fourth, in closing, defense counsel argued that the focus was on one thing, “the execution of a legal duty.” Defense counsel did not mention or argue that the execution of the legal duty was unlawful.

As our supreme court noted, “[a]ny perceived ambiguity could have been clarified by the simple expedient of calling it to the judge’s attention through a proper objection.” State v. Wilson, 686 So.2d 569, 570 (Fla.1996). Absent a contemporaneous objection, to reverse on this issue we must find that the omission of a single word from a sentence created the kind of error “which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). Given the overall instructions and the arguments made, we cannot say the one-word omission constituted fundamental error.

We find no merit in the other issue raised. For the foregoing reasons, we affirm the defendant’s conviction.

Affirmed.

GUNTHER, J., concurs.

HAZOURI, J., dissents with opinion.

HAZOURI, J.,

dissenting.

I respectfully dissent. Keith Bassett was charged by information with resisting an officer with violence pursuant to section 843.01, Florida Statutes (2004), but was convicted of the lesser included offense of resisting an officer without violence pursuant to section 843.02, Florida Statutes (2004). Bassett appeals his conviction asserting that his motion for judgment of acquittal should have been granted because the evidence presented at trial was not sufficient to support a finding that the officer was engaged in a lawful duty at the time of the alleged offense. I agree and would reverse the conviction.

The testimony at trial showed that at approximately 11:50 p.m. on November 21, 2004, Officer William Vanderslik, who was on routine road patrol, responded to the residence of Mr. Bassett in response to a call for service. The trial transcript is silent as to what constitutes a call for service and there is no testimony as to who placed the call. Vanderslik had called for back-up and arrived at the residence prior to the arrival of Officer Janet Martin. When Vanderslik arrived at the Bassett residence, he met Mrs, Connie Bassett, Keith Bassett’s estranged wife, at the front door. Mrs. Bassett stepped outside the front door of the residence to speak with Vanderslik. Vanderslik testified that he interviewed Mrs. Bassett on the front porch for approximately fifteen to twenty minutes. During the interview Vanderslik learned that there had been no violence that night and that Mr. Bassett had only screamed and yelled at Mrs. Bassett. Mr. Bassett had since calmed down. Mrs. Bassett then attempted to reenter the home but the door was locked. Mr. Bas-sett protested Mrs. Bassett’s reentry by yelling that she “wasn’t supposed to be here.” Vanderslik and Officer Janet Martin, who had arrived as back-up, approached the door and Martin ordered Mr. Bassett to open the door to allow Mrs. Bassett to enter. Mr. Bassett complied. When Mrs. Bassett walked inside, Van-derslik immediately followed Mrs. Bassett into the house. Vanderslik did not have a warrant at the time he entered the house nor is there any testimony indicating that either Mrs. Bassett or Mr. Bassett invited or consented to his entry into the house.

As Vanderslik entered the house, Mr. Bassett slammed the door to prevent Van-derslik from further entry into the house. Vanderslik then grabbed the door handle to force it down so the door could not be locked and subsequently entered the home. Mr. Bassett, in an attempt to impede Van-derslik who was now in his home, came toward the officer and told him not to enter his home. Vanderslik did not comply with Mr. Bassett’s request that he leave the home. Thereafter, Bassett shoved Vanderslik approximately six times at which time he was placed under arrest and charged with resisting an officer with violence.

Vanderslik testified that at the time he entered into the home, he had not yet concluded his investigation. Although Mrs. Bassett indicated the disturbance at the home had simply been verbal and she had no signs of injury, Vanderslik still had concerns for Mrs. Bassett’s safety. Neither Vanderslik nor Martin articulated what those safety concerns were. Both Vanderslik and Martin noted a strong aroma of alcohol emanating from Mr. Bassett and felt he was intoxicated. Although there was no evidence that Vanderslik was responding to a call of domestic violence, he testified that during his interview with Mrs. Bassett she stated that Mr. Bassett made some threats toward her. Vanders-lik was not able to recall what those threats were and simply indicated they were “vague and general.”

In its review of a denial of a motion for judgment of acquittal for resisting an officer, the Fifth District held:

A motion for judgment of acquittal is designed to challenge the legal sufficiency of the evidence. If the State presents competent evidence to establish each element of the crime, a motion for judgment of acquittal should be denied. State v. Williams, 742 So.2d 509, 510 (Fla. 1st DCA 1999). The court should not grant a motion for judgment of acquittal unless the evidence, when viewed in light most favorable to the State, fails to establish a prima facie case of guilt. Dupree v. State, 705 So.2d 90, 93 (Fla. 4th DCA 1998). In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the State that the factfinder might fairly infer from the evidence. Lynch v. State, 293 So.2d 44, 45 (Fla. 1974). It is the trial judge’s task to review the evidence to determine the presence or absence of competent evidence from which a jury could infer guilt to the exclusion of all other inferences. State v. Law, 559 So.2d 187, 189 (Fla.1989). We review the record de novo to determine whether sufficient evidence supports the verdict. Williams, 742 So.2d at 511.
To convict of resisting or obstructing an officer without violence, the State is required to prove that (1) the officer was engaged in the lawful execution of a legal duty; and, (2) the actions of the defendant obstructed, resisted or opposed the officer in the performance of that legal duty. Jay v. State, 731 So.2d 774, 774-75 (Fla. 4th DCA 1999) (quoting S.G.K. v. State, 657 So.2d 1246, 1247 (Fla. 1st DCA 1995)).

V.L. v. State, 790 So.2d 1140, 1142 (Fla. 5th DCA 2001).

Bassett argues that the trial court erred in failing to grant his motion for judgment of acquittal because Vanderslik was not lawfully executing a legal duty when he entered Bassett’s home. Bassett claims the officer did not have permission to enter the home, did not have a warrant, and there were no exigent circumstances that existed which would have permitted Van-derslik to enter without a warrant. For this proposition Bassett relies upon the Florida Supreme Court’s recent decision in Tillman v. State, 934 So.2d 1263 (Fla.2006).

In Tillman, the supreme court reaffirms the zone of protection for an individual’s home under the Fourth Amendment. The defendant in Tillman asserted that the officer was not lawfully executing a legal duty when he entered a pool enclosure, frisked defendant for weapons, and prevented defendant from leaving. In illuminating the legal standards applicable to the element of lawful execution, the supreme court stated:

Absent consent, a search warrant, or an arrest warrant, a police officer may enter a private home only when there are exigent circumstances for the entry. Taylor, 740 So.2d at 90 (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). See also Brigham City v. Stuart, — U.S. -, 126 S.Ct. 1943, 1947, 164 L.Ed.2d 650 (2006) (discussing exigency exception). The zone of protection under the Fourth Amendment extends to the curtilage of a home, which includes a fenced or enclosed area encompassing the dwelling. See State v. Rickard, 420 So.2d 303, 306 (Fla.1982) (noting that courts will not allow a warrantless search or seizure in a constitutionally protected area such as one’s back yard).
In Payton, the United States Supreme Court stated that “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” 445 U.S. at 590, 100 S.Ct. 1371. This Court recently noted:
The circumstances in which the Supreme Court has applied the exigent circumstances exception are “few in number and carefully delineated.” They include pursuing a fleeing felon, preventing the destruction of evidence, searching incident to a lawful arrest, and fighting fires. Outside of those established categories, the Supreme Court “has often heard, and steadfastly rejected, the invitation to carve out further exceptions to the warrant requirement for searches of the home.”
Riggs v. State, 918 So.2d 274, 279 (Fla.2005) (citations omitted) (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), and Illinois v. Rodriguez, 497 U.S. 177, 192, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)).

Tillman at 1272.

The majority’s opinion is in direct conflict with the First District’s opinion in Taylor v. State, 740 So.2d 89 (Fla. 1st DCA 1999), which was approved by the supreme court in Tillman. In Taylor, Mr. Taylor was convicted of resisting an officer with violence and battery on a law enforcement officer. His convictions were overturned because the evidence did not support a finding that the officer was engaged in a lawful duty at the time of the alleged offense. Like Mr. Bassett, the incident that gave rise to Mr. Taylor’s charge took place inside his home, where an officer entered without permission, without a warrant, and in the absence of an excepted exigency. 740 So.2d at 90.

In Taylor, a deputy responded to a noise complaint, the second in the same night, at Mr. Taylor’s residence and asked him to turn down his stereo. When the deputy asked why Mr. Taylor had not complied with a different deputy’s earlier request, Mr. Taylor cursed at him. The deputy asked Mr. Taylor to produce identification and to come outside. Mr. Taylor did neither and did not indicate he wanted to speak to the officer. The deputy then went inside the residence, touched Mr. Taylor and Mr. Taylor went toward him. A struggle ensued and Mr. Taylor was charged with resisting an officer with violence and with battery on a law enforcement officer.

The court held that the deputy was acting within the scope of his legal duty only by investigating the noise complaint, and that did not give the deputy the right to enter the defendant’s home. In its analysis, the court considered that the deputy did not have permission to enter the defendant’s home; he did not have probable cause to arrest the defendant for any offense before he entered the home; and there was no exigent circumstance that would justify a warrantless entry into the residence, even if probable cause had existed for an arrest. Id. at 90. The circumstances in Mr. Bassett’s case are factually similar to Mr. Taylor’s. Vanderslik did not have permission to enter Mr. Bassett’s home. Mr. Bassett locked the door earlier and emphatically communicated to Vanderslik that he did not have permission to enter. See also Espiet v. State, 797 So.2d 598 (Fla. 5th DCA .2001) (finding that an officer was not engaged in the lawful performance of his duties when he made warrantless entry into the defendant’s house by lunging through a screened window in an attempt to grab the defendant and pull him out in order to arrest him on the charge of misdemeanor domestic violence, and thus, - the state failed to make a prima facie case of resisting a law enforcement officer without violence); M.J.R. v. State, 715 So.2d 1103 (Fla. 5th DCA 1998) (holding that absent warrant or exigent circumstances, an officer had no authority to demand that the juvenile keep the door open to his residence or demand entry into it, and thus the juvenile could not be convicted of resisting a law enforcement officer for trying to close door, even if the officer had probable cause to believe that the juvenile was sheltering a runaway).

The evidence presented by the state does not support any claim of exigent circumstances. From the time that Vanders-lik arrived at the home it was clear that Mrs. Bassett was not in any danger, had not been assaulted or subjected to any form of domestic violence, and Mr. Bassett had calmed down. Vanderslik’s somewhat vague expression of concern for Mrs. Bas-sett’s safety was belied by the fact that he directed Mr. Bassett to permit Mrs. Bas-sett to reenter the home. Therefore, because (1) there were no exigent circumstances, (2) there was no warrant for entry into the home or for an arrest, and (3) there was no evidence that either Mr. Bas-sett or Mrs. Bassett invited or consented to Vanderslik’s entry into the home, Van-derslik was not in the process of executing a legal duty. Thus, the trial court was required to grant Bassett’s motion for judgment of acquittal.

      . Prior to this incident, an order had been obtained through the Department of Children and Families prohibiting Mrs. Bassett from being at the family home.

       Although not presented as an issue for our review, the trial court denied a defense request for a jury instruction based on Payton on the element of lawful execution of a legal duty.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Marco GUERRA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2886.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 2006.
    Marco Guerra, in proper person.
    Charles J. Crist, Jr., Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before COPE, C.J., and WELLS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the denial of postconviction relief on authority of Lambert v. State, 910 So.2d 890 (Fla. 1st DCA 2005), and Lester v. State, 446 So.2d 1088 (Fla. 2d DCA 1984).


author: SUAREZ, J.

text:
    Gary Lee WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1972.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 2006.

      Gary Lee Williams, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

We affirm the trial court’s denial of the defendant’s motion for post conviction relief. Defendant’s claim is time-barred and is not newly discovered evidence under Florida Rule of Criminal Procedure 3.850(b)(1).

Affirmed.


text:
    Dexter L. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1643.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Rehearing Denied Nov. 29, 2006.
    Dexter L. Anderson, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Dexter Anderson seeks review of an order that denied his motion to correct illegal sentence. We reverse and remand with respect to one of his three points.

Anderson argues that the trial court was not authorized to impose drug offender probation in connection with count one, sale of cocaine, as such is contrary to Florida Statutes section 948.20. See State v. Roper, 915 So.2d 622 (Fla. 5th DCA 2005). We agree and remand for the trial court to strike Anderson’s drug offender probation and the related conditions.

GUNTHER, FARMER and GROSS, JJ., concur.


author: PER CURIAM. GROSS, J.,

text:
    Jimmie Lee BANKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2639.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Rehearing Denied Nov. 29, 2006.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

GUNTHER and FARMER, JJ„ concur.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

I concur in affirming appellant’s conviction. 'When the jury posed a question, defense counsel asked the judge to respond by re-reading the standard charge on sexual battery involving no physical force. The judge did so. Now, appellant argues that the re-reading of the standard instruction was fundamental error. Any error was waived by counsel asking that the instruction be read. See Armstrong v. State, 579 So.2d 734, 735 (Fla.1991); Singletary v. State, 829 So.2d 978, 979 (Fla. 1st DCA 2002). This request was consistent with the defense strategy and theory of the case which was not that the incident was an accident, but that no penetration at all occurred, as evidenced by counsel’s repeated statement in opening and closing, “If the hand don’t fit, you must acquit.”


author: WARNER, J.

text:
    Alverna BROWN, Appellant, v. Kenneth C. JENNE, et al., Appellees.
    No. 4D05-2929.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Rehearing Denied Dec. 1, 2006.

      Todd R. McPharlin of Sheldon J. Schlesinger, P.A., Fort Lauderdale and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellant.
    Chris Kleppin of Glasser, Boreth, Cea-sar & Kleppin, Plantation, for appellee Ken Swan.
    Mark A. Emanuele of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for ap-pellees Karl Froling and Kenneth Loukin-nen.
   WARNER, J.

The issue presented in this case is whether county fire rescue personnel are absolutely immune from liability under section 1983 of the Civil Rights Act of 1871. We hold that these county employees do not have absolute immunity. We therefore reverse the trial court’s ruling to the contrary.

Alverna Brown, as personal representative of her husband Oral Brown’s estate, sued several defendants, including the ap-pellees herein who are all employees of the Broward County Fire Rescue Squad, for civil rights violations in connection with Oral Brown’s death. Her complaint alleged that Oral Brown suffered a seizure while driving which resulted in a car accident. He was dazed when he exited the vehicle, and the defendants and sheriff’s deputies on the scene believed that he might be having a diabetic attack. He was not suspected of any criminal activity. Unable to talk, Brown began to walk away from the scene and did not respond to orders to stop walking. The complaint alleges that the appellees and others began to “violently physically handle and mistreat” Brown, aggressively bringing him to the ground and eventually hog-tying him, placing him face down on the ground. Brown had trouble breathing but was tied face down to a stretcher and was not permitted to turn over. He was transported to the hospital but was given no medical attention en route. During transport he suffered a grand mal seizure. At the hospital he was declared dead from positional asphyxiation as a result of the hog-tie restraint. As to the appellees, the complaint alleged that at all times they were operating within the course and scope of their employment as fire rescue personnel.

The appellees filed motions to dismiss the complaint alleging that they were entitled to absolute immunity, or in the alternative, qualified immunity. After hearing, the court granted the motion and found that the appellee fire rescue squad employees were entitled to absolute immunity on the basis of section 768.28(9)(a), Florida Statutes, as interpreted by Hill v. Department of Corrections, 513 So.2d 129 (Fla.1987). This appeal follows.

In Hill, our supreme court considered whether section 768.28(1), Florida Statutes, waived sovereign immunity for section 1983 claims under the Civil Rights Act for a state agency, the Department of Corrections. The court explained that, “Congress, in enacting section 1983, did not intend to override the traditional sovereign immunity of the States.” Id. The policy of sovereign immunity was so well established by the time of the enactment of the Civil Rights Act of 1871 that Congress would have specifically stated if it had intended to abrogate the doctrine. Thus,

a state’s “traditional” sovereign immunity, to the extent that the state has preserved it, would also bar a Section 1983 damage action in the state’s own courts.... Thus, a state’s own courts may not entertain such an action against a state or its agencies, unless the state has in that respect waived its sovereign immunity.

Id. at 132. The state’s waiver of sovereign immunity is contained in section 768.28, Florida Statutes. Reviewing that statute, the court concluded that it waived sovereign immunity only for traditional state tort suits for damages and not for section 1983 claims.

The trial court erred in relying on Hill, as it is factually inapplicable. Hill involved a state agency, the Department of Corrections. This suit involves members of the Broward Fire Rescue Squad who are county officers or employees. The issue then is whether the county and its employees are immune from a section 1983 suit to the same degree that the state government is. The United States Supreme Court has answered that question in the negative.

In Howlett v. Rose, 537 So.2d 706 (Fla. 2d DCA 1989), rev’d, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990), a minor brought an action pursuant to section 1983 against the school board and several school officials. The trial court dismissed the complaint. On appeal, the Second District relied on Hill and held “that the State of Florida has not waived its sovereign immunity from suits against it in its own state courts except to the extent provided in section 768.28, Florida Statutes (1985) for traditional state tort actions.” Id. at 707. It therefore determined that the school board and its officials had absolute immunity from a section 1983 claim filed in state court. The Florida Supreme Court denied review in Howlett v. Rose, 545 So.2d 1367 (Fla.1989). However, the United States Supreme Court granted certiorari review of the case.

In its opinion striking down the Florida decision, Justice Stevens, writing for the court, first addressed Hill. He noted:

On its facts, the disposition of the Hill case would appear to be unexceptional. The defendant in Hill was a state agency protected from suit in a federal court by the Eleventh Amendment. (Citations omitted). As we held last Term in Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989),.... Will establishes that the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal court or state court.

496 U.S. at 365, 110 S.Ct. 2430 (emphasis added). Justice Stevens then addressed the problem with the extension of Hill by the District Court of Appeal in Howlett:

The language and reasoning of the State Supreme Court, if not its precise holding, however, went further. That further step was completed by the District Court of Appeal in this case. As that court construed the law, Florida has extended absolute immunity from suit not only to the State and its arms but also to municipalities, counties, and school districts that might otherwise be subject to suit under § 1983 in federal court. That holding raises the concern that the state court may be evading federal law and discriminating against federal causes of action. The adequacy of the state-law ground to support a judgment precluding litigation of the federal claim is itself a federal question which toe review de novo.

Id. at 365-66, 110 S.Ct. 2430 (emphasis added). The opinion then quite emphatically and forcefully maintained that the state court’s refusal to hear the section 1983 claim against the school board was a violation of the supremacy clause and the principle that “federal law” is the “law of the land.”

Quoting from Martinez v. California, 444 U.S 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), Justice Stevens said:

Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir.1968). The immunity claim raises a question of federal law.

Pointing to a similar issue in which the Court overturned the application of a state notice of claim statute to section 1983 claims in Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), the Court again bluntly declared:

The decision to subject state subdivisions to liability for violations of federal rights ... was a choice that Congress, not the Wisconsin Legislature, made, and it is a decision that the State has no authority to override.

Id. at 377, 110 S.Ct. 2430. Justice Stevens then disposed of the District Court’s opinion:

While the Florida Supreme Court’s actual decision in Hill is consistent with the foregoing reasoning, the Court of Appeal’s extension of Hill to persons subject by § 1983 to liability is flatly inconsistent with that reasoning and the holdings in both Martinez and Felder. Federal law makes governmental defendants that are not arms of the State, such as municipalities, liable for their constitutional violations.... To the extent that the Florida law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities should be held liable for their constitutional violations, that disagreement cannot override the dictates of federal law.

Id. at 377-78, 110 S.Ct. 2430 (citations omitted). Thus, the Court determined that sovereign immunity did not bar a suit against the School Board of Hillsborough County.

Our supreme court relied on the holding in Howlett in Town of Lake Clarke Shores v. Page, 569 So.2d 1256 (Fla.1990), when it held that sovereign immunity does not bar section 1983 claims against municipalities in state courts. Howlett has also been applied to a county entity. In Arthur v. Hillsborough County Board of Criminal Justice, 563 So.2d 94 (Fla. 2d DCA 1990), vacated by 498 U.S. 801, 111 S.Ct. 27, 112 L.Ed.2d 6 (1990), the Second District dismissed Arthur’s section 1983 action against the Hillsborough County Board of Criminal Justice based on its earlier decision in Howlett and the Florida Supreme Court’s decision in Hill. Arthur petitioned for cer-tiorari to the United States Supreme Court, which granted certiorari and vacated the opinion for reconsideration based upon its Howlett opinion. See 498 U.S. 801, 111 S.Ct. 27, 112 L.Ed.2d 6. On remand the second district stated that, “The United States Supreme Court, while approving that ultimate holding in Hill, rejected this court’s extension of Hill in Howlett, 537 So.2d at 706, to provide immunity from section 1983 suits, not only to the state and its agencies, but also to municipalities, counties, and school districts.” Arthur v. Hillsborough County Bd. of Criminal Justice, 588 So.2d 236, 237 (Fla. 2d DCA 1991). Therefore, the appellate court found that Arthur’s claim against the county board was now properly before the court.

The Eleventh Circuit has also held that Florida counties and the counties’ officers are not immunized from section 1983 claims. See Abusaid v. Hillsborough County Bd. of County Comm’rs, 405 F.3d 1298 (11th Cir.2005). In addition, the United States Supreme Court has several times asserted in various contexts that counties are independent entities and not arms of the state for purposes of Eleventh Amendment immunity or sovereign immunity. See, e.g., N. Ins. Co. of New York v. Chatham County, Ga., — U.S. -, 126 S.Ct. 1689, 164 L.Ed.2d 367 (2006) (county not arm of the state); Moor v. Alameda County, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973) (determining that county was not arm of state, even though state constitution declared it to be a legal subdivision of state). We also have come to the same conclusion that the county is not a mere extension of the state in Jenne v. Maranto, 825 So.2d 409 (Fla. 4th DCA 2002) (“The Counties are political subdivisions but they are not the State itself.”).

The law is thus well settled that counties and thus their employees may not claim sovereign immunity to a section 1983 claim. While Hill is still good law as to the sovereign immunity of the state and its agencies, Howlett establishes that no sovereign immunity is enjoyed by other governmental entities. The trial court thus erred in extending sovereign immunity to the Broward County Fire Squad officers.

We reverse and remand for further proceedings. While appellees ask us to decide whether the dismissal was still correct on the basis of qualified immunity, we decline to decide that issue on a motion to dismiss.

Reversed.

KLEIN and GROSS, JJ., concur.

      . Appellees also cite Stephens v. Geoghegan, 702 So.2d 517 (Fla. 2d DCA 1997), as being directly on point. However, the section 1983 liability of the police officers in that case was decided on qualified immunity, not sovereign immunity.


author: ROTHENBERG, Judge.

text:
    Edgar Ricardo ARJONA a/k/a Ricardo Arjona, Appellant, v. Leslie TORRES a/k/a Leslie Arjona, Appellee.
    No. 3D06-1395.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.

      Greene Smith McMillan and Cynthia L. Greene, Miami; Leinoff & Lemos, Coral Gables, for appellant.
    Lauri Waldman Ross; Elser Foster-Morales and Marsha B. Elser, Miami, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.

      . Judge Cortiñas did not hear oral argument, but participated in the decision.

   ROTHENBERG, Judge.

Edgar Ricardo Arjona a/k/a Ricardo Ar-jona appeals from a non-final order denying his motion to dismiss and/or abate the dissolution of marriage proceedings initiated by his wife, Leslie Torres a/k/a Leslie Arjona, in Miami, Florida. We affirm.

The Ar joñas were married in Nevada in 1992, and have two minor children who were born in Puerto Rico. Mrs. Arjona is a United States citizen who resided in Florida until the parties married, while Mr. Arjona is a Guatemalan citizen. The Ar jo-ñas moved to Mexico in 1992 and resided there until 1999 when they relocated to Miami. Mr. Arjona returned to Mexico without his wife and children, and in July 2001, Mrs. Arjona returned to Mexico with the minor children in an attempt to reconcile with her husband. In August 2002, Mrs. Arjona and the children returned to Miami where they have continuously resided.

On August 19, 2002, Mrs. Arjona filed a petition for dissolution of marriage in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County (“circuit court”). As Mrs. Arjona did not meet the six-month residency requirement, the circuit court granted Mr. Arjona’s motion to dismiss, which challenged the circuit court’s subject matter jurisdiction, while reserving jurisdiction to determine if Mrs. Arjona should be allowed to amend her petition to seek separate maintenance.

On September 25, 2002, Mr. Arjona filed a petition for divorce in Mexico, requesting that he be awarded custody of the minor children. On October 23, 2002, Mrs. Arjo-na amended her petition in Miami, seeking custody of the children, maintenance, and child support. Thereafter, on December 6, 2002, the Mexican court granted Mrs. Ar-jona temporary custody of the children and ordered her husband to provide temporary support. On December 13, 2002, the circuit court abated the wife’s action, pending a resolution of the husband’s Mexican action.

After Mrs. Arjona unsuccessfully challenged the Mexican court’s jurisdiction, the Mexican court entered a final judgment denying Mr. Arjona’s petition for divorce, finding that he was unable to establish any of the alleged grounds for divorce, and this ruling was upheld on appeal in June 2005.

On November 4, 2005, Mr. Arjona filed a renewed petition for dissolution of marriage in Mexico, asserting that his wife had abandoned the marital home. Unlike his September 2002 petition, in this petition, Mr. Arjona did not specifically seek custody of the minor children. However, on December 13, 2005, prior to being served with the renewed Mexican petition, Mrs. Arjona filed a petition for dissolution of marriage in the circuit court, and served her husband with the petition the following day. In this petition, Mrs. Arjona sought a determination as to the primary residential responsibility for the minor children and an adjudication of the parties’ financial matters.

On February 2, 2006, Mr. Arjona filed a “Verified Emergency Motion for Temporary Custody by Special Appearance,” seeking the circuit court’s “intervention pursuant to Fla. Stat. 61.517.” In this motion, he asserted that the children, who have resided with his wife in Miami-Dade County since 2002, were being mistreated and abused. Following a hearing held on February 7, 2006, the trial court denied Mr. Arjona’s motion without prejudice.

Shortly thereafter, on February 27, 2006, Mr. Arjona filed a “Motion to Dismiss and/or Abate Proceedings by Special Appearance,” asserting that he filed his divorce action in Mexico before his wife filed her divorce action in the circuit court, and therefore, “[pjursuant to Florida law and the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act], it is clear that because Mexico correctly assumed jurisdiction first, Florida must defer to it in resolving all matters.” In response, the wife filed the affidavit of her Mexican attorney, averring that there were no custody proceedings pending in Mexico. Mr. Arjona also submitted an affidavit from an expert, who averred that, although the husband’s renewed Mexican petition does not seek custody of the children or division of marital assets, if the Mexican court grants a divorce, it is required to decide custody and financial issues in its final decision.

On May 12, 2006, the trial court denied Mr. Arjona’s motion to dismiss, finding that the circuit court has jurisdiction over the competing Mexican case. The circuit court found that, pursuant to Mabie v. Garden Street Management Corp., 397 So.2d 920 (Fla.1981), and Martinez v. Martinez, 153 Fla. 753, 15 So.2d 842 (1943), the date of service of process, not the date of the filing of the complaint, governs jurisdictional conflicts. The circuit court also denied Mr. Arjona’s request to abate the action, finding that the action in Florida contained a count for custody and that Florida is the children’s undisputed home state.

In this non-final appeal, although Mr. Arjona does not challenge the circuit court’s jurisdiction to dissolve the marriage and to determine all financial issues, he contends that the trial court erred by denying his motion to dismiss and/or abate the circuit court’s proceeding regarding the initial child custody determination. We disagree.

To resolve the issues before us requires a review and an interpretation of the UC-CJEA. The parties, therefore, agree that the proper standard of review is de novo. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006)(“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.”).

The Uniform Child Custody and Jurisdiction Act (“UCCJA”) became effective in Florida on October 1, 1977. Thereafter, on October 1, 2002, the UCCJA was repealed and replaced with the UCCJEA. The general purposes of the UCCJEA are to avoid jurisdictional competition and conflict with other courts in child custody matters; promote cooperation with other courts; insure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid relitigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues. § 61.502, Fla. Stat. (2005). The UCCJEA is, therefore, a jurisdictional act which controls custody disputes. It does not deal with priority of dissolution actions. A foreign country is treated as if it were a state of the United States for purposes of this act. § 61.506, Fla. Stat (2005).

Section 61.514, Florida Statutes (2005), of the UCCJEA, unequivocally limits jurisdiction to determine initial custody matters (except for temporary emergency matters) to the “home state” of the child, and section 61.503(7) defines “home state,” in pertinent part, as “the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” Section 61.514, Florida Statutes (2005), provides as follows:

Initial child custody jurisdiction.—
(1) Except as otherwise provided in s. 61.517, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more ap? propriate forum under s. 61.520 or s. 61.521, and:
1. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
2. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(c) All courts having jurisdiction under paragraph (a) or paragraph (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under s. 61.520 or s. 61.521; or
(d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), paragraph (b), or paragraph (c).
(2) Subsection (1) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

Under the repealed UCGJA, Florida had jurisdiction to make an initial child custody determination under numerous circumstances. For example, in addition to jurisdiction based on the child’s “home state,” Florida could also have assumed jurisdiction if it was in the child’s best interest due to the child’s and one parent’s significant connection with Florida. See § 61.1308, Fla. Stat. (2001). The UCCJEA, however, gives jurisdictional priority to the child’s home state. Section 61.514 of the UCCJEA provides that, except under limited exceptions, Florida has jurisdiction to make an initial child custody determination only if Florida is the child’s home state. The UCCJEA grants an exception to the home state jurisdictional requirement when “a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum,” due, in part, to the “significant connections” that the child and one parent has with Florida. § 61.514(l)(b), Fla. Stat. (2005)(emphasis added). Therefore, under the UCCJEA, if Florida is not the child’s home state, a child’s significant connection with Florida is no longer sufficient to confer subject matter jurisdiction upon a Florida court unless the child’s home state has declined to exercise its jurisdiction.

In the instant case, the parties do not dispute that Mrs. Arjona and the children have continuously resided in Miami-Dade County since 2002. Thus, when Mrs. Arjona filed her petition for dissolution of marriage in the circuit court in 2005, Florida, not Mexico, was the children’s home state. As Florida is the children’s home state, we conclude that the circuit court has exclusive jurisdiction to determine child custody issues. See § 61.514(1)(a), Fla. Stat. (2005); see also Nesa v. Baten, 290 A.D.2d 663, 736 N.Y.S.2d 173 (N.Y.App.Div.2002)(upholding dismissal of a petition filed in New York seeking custody of the children for lack of subject matter jurisdiction because New York was not the children’s “home state”); In re Calderon-Garza, 81 S.W.3d 899 (Tex.App.2002)(holding that child’s “home state” for purposes of the UCCJEA was Texas, and thus the Texas court, not the Mexican court, had jurisdiction over the paternity proceeding); In re McCoy, 52 S.W.3d 297 (Tex.App.2001)(holding that after Arkansas became the children’s “home state,” the Qatari court no longer had power to confer jurisdiction over the child custody dispute to the Texas court).

Mr. Arjona argues that although Florida is the “home state” of their children, because he filed his renewed petition for dissolution of marriage on November 4, 2005 in Mexico before his wife filed for dissolution in Florida on December 13, 2005, that section 61.519 applies. Section 61.519, Florida Statutes (2005), provides, in pertinent part, as follows:

Simultaneous proceedings.—
(1) Except as otherwise provided in s. 61.517, a court of this state may not exercise its jurisdiction under ss. 61.514-61.524 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under s. 61.520.
(2) Except as otherwise provided in s. 61.517, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to s. 61.522. If the court determines that a child custody proceeding was previously commenced in a court in another state having jurisdiction substantially in accordance with this part, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this part does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.

Thus, Mr. Arjona argues that pursuant to section 61.519 because his dissolution proceeding was commenced in Mexico before the Florida proceeding was commenced, Florida was required to communicate with the Mexican court to determine which court should hear the case.

Mrs. Arjona counters with three arguments: (1) that because she served Mr. Arjona before he served her, and the Florida proceeding was perfected prior to perfection of service regarding the Mexican proceeding, jurisdiction lies in Florida; (2) while Mr. Arjona’s initial action for dissolution in Mexico filed in 2002 included child custody issues, the dissolution action he filed in 2005 did not, and Mrs. Arjona’s dissolution action filed in Miami specifically includes resolution of child custody issues; and (3) that because Florida is the children’s “home state” Mexico by definition cannot exercise jurisdiction because to do so would not be in substantial conformity with section 61.514. Thus, Mrs. Arjona contends that Florida was not required to communicate with the Mexican court.

We conclude that because Florida is the “home state” of the children and Florida has not declined to exercise jurisdiction over the custody issues of the children, the proceedings in Mexico were not commenced substantially in conformity with the jurisdictional requirements of section 61.514. Thus, the communication requirement of section 61.519 has no application in the instant case. Because we conclude that Mexico lacks subject matter jurisdiction over the child custody issues herein, we decline to address and resolve the now collateral issues of whether “commencement” of a child custody matter is governed by the date an action is filed or when service is perfected, and whether the filing of a dissolution proceeding in Mexico which does not specifically include child custody issues, is a “child custody proceeding” within the meaning of the UC-CJEA.

Affirmed.

      . Section 61.021, Florida Statutes (2002), titled "Residence requirements,” provides: "To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.”

      . Mr. Arjona concedes that he served his wife with the renewed Mexican petition on January 10, 2006.

      . Mr. Aijona's expert’s affidavit provides:
      Even though [Mr. Arjona’s] Complaint does not specifically request custody of the children or division of marital assets, if the Mexican Court decides to grant the divorce, Articles 283, 287 and 288 of the Civil Code require the court, in its final decision, to determine custody of the children, divide the couple’s property, require the culpable party to pay alimony to the innocent party, and to assure that the needs of the children are provided for.

      . We note that the Mexican court has now granted Mrs. Aijona's motion to dismiss the dissolution proceeding filed by Mr. Aijona in Mexico, finding that it lacks subject matter jurisdiction as the Arjonas have lived separately since May of 2002, the marital domicile is no longer in Mexico, and there is no allegation that Mrs. Arjona "abandoned the marital domicile in an unjustified fashion.” As there is no pending proceeding in Mexico, the dissolution of marriage, child custody issues, and financial matters are indisputably properly before the Circuit Court.


text:
    SEAGULL TOWNHOMES CONDOMINIUM ASSOCIATION, INC., Appellant, v. Frederick G. EDLUND, Sally M. Edlund, and Christopher Edlund, Appellees.
    No. 3D05-2262.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.
    Kahan, Shir and Guy M. Shir and Patrick Dervishi, Boca Raton, for appellant.
    Robert H. Cooper, Aventura, for appel-lees.
    Before GREEN, RAMIREZ, and SUAREZ, JJ.
   SUAREZ, J.

Seagull Townhomes Condominium Association, Inc., (“Seagull”) appeals the trial court’s order denying its motion for attorney’s fees. We affirm.

Seagull contends that the trial court erred by finding that it is barred from recovering attorney’s fees pursuant to the Condominium Act. The Edlunds assert that the trial court did not abuse its discretion by finding that Seagull violated the Condominium Act by failing to answer their written inquiry, and that Seagull is therefore barred from recovering attorney’s fees.

Christopher Edlund bought a unit at Seagull Townhomes Condominium in 1993. Christopher executed a quitclaim deed to the townhouse to his parents (Frederick and Sally Edlund) in 2001. He did not obtain Seagull’s approval before making this transfer as required by Seagull’s Declaration of Condominium.' Within a year, Seagull informed Christopher that he violated the condominium rules by failing to get permission before executing the deed. Seagull filed suit against Christopher and his parents seeking specific performance requiring Christopher to follow condominium rules. Christopher’s parents deeded the property back to Christopher on May 7, 2002, in order to cure the initial lack of notice, but again failed to first obtain Seagull’s permission. Seagull ultimately acknowledged and approved the transfer from Christopher to his parents, but argued that the second transfer from the parents back to Christopher was not approved and remained unauthorized. Seagull argued that, as the transfer was unauthorized, Seagull had the right to acquire the property based on the right of first refusal clause in the condominium documents which permits Seagull to purchase a unit if it is put up for sale.

The trial court entered summary judgment in Seagull’s favor. It found that the initial transfer from Christopher to his parents was valid because it was approved by Seagull, and that the second transfer from the parents back to Christopher was not approved and was therefore null and void and that it triggered Seagull’s right of first refusal. The court therefore ordered Christopher’s parents to sell the unit to Seagull for fair market value. Seagull then moved for attorney’s fees. The trial court found that neither party was a prevailing party for the purposes of attorney’s fees, and that Seagull was statutorily prohibited from collecting fees because it had failed to answer one of the Edlunds’ “written inquiries” sent during the dispute pursuant to Florida Statutes, section 718.112(2)(a)2.

Christopher then appealed the summary judgment order. This court affirmed the trial court’s findings that the initial transfer was approved by Seagull and that the parents now own the unit, and that the parents’ attempt to re-convey the property was a nullity. However, this court reversed the portion of the judgment ordering the parents to sell the unit to Seagull for fair market value. This court found that the parents should have been given the option to keep the property. Edlund v. Seagull Toumhomes Condo. Assoc., 928 So.2d 405 (Fla. 3d DCA 2006).

In the instant appeal, Seagull challenges the trial court’s order denying its request for attorney’s fees. Seagull argues that the trial court erred by finding that it is precluded from collecting attorney’s fees for failing to provide the Edlunds with an answer to their “written inquiry” as required by the Condominium Act.

The trial court did not abuse its discretion by ruling that Seagull is prohibited from recovering attorney’s fees under the Condominium Act. The statute requires a board to respond in writing to a unit owner within 30 days when the owner files a “written inquiry by certified mail” with the board of administration. § 718.112(2)(a)2, Fla. Stat. (2005). The Edlunds sent a letter to Seagull by certified mail addressing various issues. There is competent substantial evidence to support the trial court’s finding that this letter constituted a “written inquiry” under the statute. The trial court correctly applied the law to find that this violation prohibits Seagull from recovering fees in this matter. Accordingly, we affirm the trial court’s ruling that Seagull is precluded from collecting attorney’s fees under the Condominium Act.

Affirmed.

      . When a unit owner files a written inquiry by certified mail with the board of administration, the board shall respond in writing to the unit owner within 30 days of receipt of the inquiry ... The failure to provide a substantive response to the inquiry as provided herein precludes the board from recovering attorney’s fees and costs in any subsequent litigation, administrative proceeding, or arbitration arising out of the inquiry.
      § 718.112(2)(a)2, Fla. Stat. (2005).


text:
    Alicia ROOK, Appellant, v. In re GUARDIANSHIP OF Alicia CABRERA, Appellee.
    No. 3D05-2638.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.
    Kevin H. Fabrikant, for appellant.
    Harvey J. Sepler, Miami, for appellee.
    Before GERSTEN, WELLS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Gentile-Youd v. Guardianship of Rudnick, 632 So.2d 88 (Fla. 3d DCA1994).


author: PER CURIAM..

text:
    Peter E. COOMBS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2114.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.
    Peter E. Coombs, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM..

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.853. On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for a hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(D).

Reversed and remanded for further proceedings.


text:
    Teresa RUIZ, as personal representative of the estate of Carmen Lopez Sirias, Appellant, v. Richard CHANG, M.D. and Richard Chang, M.D., P.A., Appellees.
    No. 3D05-618.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.
    Podhurst Orseck, and Stephen F. Ro-senthal, Miami, for appellant.
    Diaz Morel-Saruski, and Benito H. Diaz; Hicks & Kneale, and Jean Kneale, and Richard A. Warren, Miami, for appellees.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015 (Fla.1984); Kay’s Custom Drapes, Inc. v. Garrote, 920 So.2d 1168 (Fla. 3d DCA 2006); Powell v. Goldner, 483 So.2d 468 (Fla. 3d DCA 1986).


text:
    Lawrence MOLINA, Appellant, v. HOME DEPOT USA INC. and Florida Unemployment Appeals Commission, Appellees.
    No. 3D06-367.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.

      Lawrence Molina, in proper person.
    John D. Maher, Tallahassee, for the Florida Unemployment Appeals Commission.
    Before GREEN, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

Lawrence Molina appeals the Florida Unemployment Appeals Commission’s (“UAC”) dismissal of his late-filed appeal of the referee’s decision. We affirm the dismissal.

A referee’s decision is final unless a review is initiated within twenty days after the date of mailing of the notice of the referee’s decision. § 443.151(4)(b)5, Fla. Stat. (2005). If an application for review is not timely filed, it must be dismissed by the commission for lack of jurisdiction. Fla. Admin. Code R. 60BB-7.006. Molina does not dispute that he timely received the referee’s decision and that it notified him of his right to appeal his claim for unemployment compensation within twenty days. Nor does he dispute that his application for review was not filed within the twenty day requirement. As Molina’s notice of initiation was not timely filed, UAC does not have jurisdiction to hear this matter on the merits. Espinosa v. Cableoptics, 807 So.2d 195 (Fla. 3d DCA 2002). For this reason, we affirm the dismissal of the appeal.

Affirmed.


author: CORTINAS, Judge.

text:
    FLORIDA DEPARTMENT OF AGRICULTURE, et al., Petitioners, v. In re CITRUS CANKER LITIGATION, Respondent.
    No. 8D06-1099.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.

      Adorno & Yoss and Jack R. Reiter and Wesley R. Parsons, Miami, for petitioners.
    Robert C. Gilbert; Weiss Serota Helf-man Pastoriza Cole & Boniske and Joseph H. Serota, Miami, and Jamie Alan Cole, Ft. Lauderdale, for respondent.
    Before WELLS, CORTINAS, and LAGOA, JJ.
   CORTINAS, Judge.

Petitioners, the Florida Department of Agriculture and Consumer Services and its commissioner, Charles Bronson, (collectively “Petitioners”), petition for a writ of certiorari to quash the trial court’s order denying their motion to delete the class in this case and require a certification hearing.

Respondents, Miami-Dade County class representatives Harry Roberge, Dr. Evelyn Lopez-Brignoni, and Elba Brignoni (collectively “Respondents”), along with Broward County class representatives, brought a class action in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida (“Broward Circuit Court”). Respondents brought the action on behalf of themselves and a class of Miami-Dade property owners whose uninfected citrus trees, which were within 1900 feet of canker-infected trees, were destroyed under the Citrus Canker Eradication Program (“CCEP”). The complaint sought to enjoin Petitioners from destroying uninfected trees within 1900 feet of infected trees, and asserted an inverse condemnation claim for compensation pursuant to Article X, section 6(a), of the Florida Constitution.

On January 24, 2002, Broward Circuit Court Judge Leonard Fleet entered an order certifying the following class:

All owners of citrus trees within Bro-ward County, incorporated or otherwise, and Miami-Dade County, incorporated or otherwise, not used for commercial purposes, which were not determined by the Department to be infected with citrus canker and which were destroyed under the CCEP from January 1, 2000 to the present.

Petitioners appealed the certification of the class of both Broward and Miami-Dade owners to the Fourth District Court of Appeal. See Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So.2d 928 (Fla. 4th DCA 2002). The Fourth District affirmed the class certification, but reversed with directions to the trial court to “delete” the Miami-Dade owners from the class on the basis of improper venue. Pompano Beach, 829 So.2d at 932.

Thereafter, the Broward Circuit Court entered an order transferring the claims of the Miami-Dade owners to the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida (“Miami-Dade Circuit Court”). Petitioners filed a motion to enforce the mandate in the Fourth District, challenging the above order. Petitioners’ motion was denied.

The class proceedings were transferred to the Miami-Dade Circuit Court on April 4, 2003. Respondents also filed a complaint in the Miami-Dade Circuit Court on April 4, 2003. On February 9, 2004, Petitioners moved to decertify the class and dismiss the case, but later withdrew their motion.

Subsequently, Petitioners filed a motion to delete the Miami-Dade class and require a certification hearing, arguing that, pursuant to Pompano Beach, the Miami-Dade Circuit Court was under an obligation to delete the class and proceed with an independent certification hearing to determine whether the class should be certified. The Miami-Dade Circuit Court entered an order denying Petitioners’ motion, stating that it adopted “in its entirety” the Broward Circuit Court’s order transferring the claims of the Miami-Dade owners.

Petitioners seek a writ of certiorari quashing the Miami-Dade Circuit Court’s order on the basis that the order departed from the essential requirements of the law, causing irreparable harm that cannot be remedied on plenary appeal. See Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So.2d 221, 222 (Fla. 3d DCA 2000). We grant the writ.

The mandate in Pompano Beach was issued on January 21, 2003, before the Broward Circuit Court transferred the case to the Miami-Dade Circuit Court. Upon the issuance of the mandate from the Fourth District, the Broward Circuit Court’s role became purely ministerial, and its function was limited to obeying the Fourth District’s decree. See Torres v. Jones, 652 So.2d 893, 894 (Fla. 3d DCA 1995) (citations omitted)(holding that “[a] trial court’s role upon the issuance of a mandate from an appellate court becomes purely ministerial, and its function is limited to obeying the appellate court’s order or decree”).

Pursuant to Pompano Beach, the Broward Circuit Court was solely to “delete” the Miami-Dade owners from the class. See Pompano Beach, 829 So.2d at 932. Instead, the Broward Circuit Court entered an order transferring the Miami-Dade owners’ claims to the Miami-Dade Circuit Court stating:

The claims of Miami-Dade County plaintiffs/class representatives, Harry Ro-berge, Dr. Evelyn Lopez-Brignoni and Elba Brignoni, are transferred to the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, for further proceedings consistent with this Court’s Order Granting Plaintiffs’ Motion for Class Certiftcation and the Fourth District’s Class Certification Decision.

(emphasis added). Although the Broward Circuit Court’s order also stated that it deleted the Miami-Dade owners from the certified class, it is clear that the Broward Circuit Court intended that the Miami-Dade Circuit Court adopt the order granting class certification with respect to the Miami-Dade owners. The Broward Circuit Court went beyond a purely ministerial role, and did not limit itself to obeying the Fourth District’s decree in Pompano Beach. To follow the Fourth District’s mandate and “delete” the Miami-Dade owners from the class would require the Broward Circuit Court to “drop”, “eliminate,” “exclude,” “remove,” or “strike out” the Miami-Dade owners. See Roget’s New Millennium Thesaurus (1st ed. 2006).

As such, the Broward Circuit Court’s class certification of the Miami-Dade owners should have been revisited by the Miami-Dade Circuit Court for an independent certification determination based on the claims asserted by the Miami-Dade owners in their pleadings filed in the Miami-Dade Circuit Court, and pursuant to Florida Rule of Civil Procedure 1.220. See Fla. R. Civ. P. 1.220(d)(l)(stating, in relevant part, “[a]s soon as practicable after service of any pleading alleging the existence of a class under this rule ..., after hearing the court shall enter an order determining whether the claim or defense is maintainable on behalf of a class.... ”).

Moreover, Florida Rule 1.220 is based on the federal class action rule, Federal Rule of Civil Procedure 23, and we turn to relevant federal decisions as persuasive authority on the interpretation of Florida Rule 1.220. See In re Rules of Civil Procedure, 391 So.2d 165, 170 (Fla. 1980); Seven Hills, Inc. v. Bentley, 848 So.2d 345, 352-53 (Fla. 1st DCA 2003); Powell v. River Ranch Prop. Owners Ass’n, Inc., 522 So.2d 69, 70 (Fla. 2d DCA 1988). Federal courts dealing with the transfer of a class to another court, after the class has been previously certified, have held that transferee courts have the power to reconsider the class certification determinations made by the transferor court. See Rivers v. Walt Disney Co., 980 F.Supp. 1358, 1361 (C.D.Cal.1997); In re Exterior Siding & Aluminum Coil Litig., 538 F.Supp. 45, 47 (D.Minn.1982). Although transferee courts should generally respect the orders of the transferor courts as “law of the case,” the transferee court is free to exercise those pretrial powers exercisable by the transferor court, and may review, modify, expand, revise, or vacate any prior decision of the transferor court. Rivers, 980 F.Supp. at 1361; In re Exterior Siding, 538 F.Supp. at 47; In re Plumbing Fixture Cases, 298 F.Supp. 484, 490 (J.P.M.L.1968). In revisiting whether a class should be certified, the transferee court should not be influenced by any initial determinations of the transferor court. In re Exterior Siding, 538 F.Supp. at 47.

In the instant case, the Miami-Dade Circuit Court did not make a class certification determination independent of the class certification determination made by the Broward Circuit Court. Therefore, we remand this cause for the trial court to reconsider class certification of the Miami-Dade owners.

Furthermore, we note that the Miami-Dade Circuit Court did not enter an order expressly adopting the initial class certification order entered by -the Broward Circuit Court. Had it done so, Petitioners would have been able to directly appeal the Miami-Dade Circuit Court’s order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi), which permits appeals from non-final orders determining that a class should be certified. See Fla. R. App. P. 9.130(a)(3)(C)(vi).

Accordingly, we grant a writ of certiora-ri quashing the trial court’s order denying Petitioners’ motion to delete the Miami-Dade County class and require a class certification hearing.

Certiorari granted; order quashed; and cause remanded.


text:
    Cecil WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3532.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2006.
    Cecil Williams, pro se, Appellant.

      Charlie Crist, Attorney General, for Ap-pellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of August 28, 2006, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on July 10, 2006, lists the orders denying the appellant’s motion for rehearing and motion for reconsideration of rehearing. Because a motion for rehearing is not subject to appellate review, this Court is without appellate jurisdiction. See Carter v. State, 242 So.2d 737, 737 (Fla. 1st DCA 1970); Fla.R.App. P. 9.140(b)(1). To the extent the appellant argues that he is appealing the underlying order, this Court has already affirmed the denial of that motion. Williams v. State, 916 So.2d 796 (Fla. 1st DCA 2005) (unpublished table decision); See Sibley v. Sibley, 885 So.2d 980 (Fla. 3d DCA 2004) (“Since [appellant] already appealed the March 4 order and this Court already affirmed it, common sense and principles of res judicata dictate that the [appellant] cannot now mount a second appeal of the March 4 order.”)

DISMISSED.

ERVIN, BARFIELD, and POLSTON, JJ., concur.


text:
    Stanley K. GEDDIE, Petitioner, v. James R. McDONOUGH, Respondent.
    No. 1D06-0869.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2006.
    Stanley K. Geddie, pro se, Petitioner.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Stanley K. Geddie, petitioner, seeks cer-tiorari review of the trial court’s order denying him relief from a disciplinary report issued by the Florida Department of Corrections (Department), forfeiting certain gain time he accumulated while in the custody of the Department. He also seeks relief from the circuit court’s order authorizing the Department to impose a lien against his trust account for the full amount of costs and fees caused by the proceeding he instituted. We deny the petition insofar as it relates to the forfeiture of gain time, because in this respect, we find the circuit court did not depart from the essential requirements of the law. See Sheley v. Fla. Parole Comm’n, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998). We agree, however, that the trial court departed from the essential requirements of the law by imposing a lien against petitioner’s trust account. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003); Wagner v. McDonough, 927 So.2d 216 (Fla. 1st DCA 2006).

Petition for writ of certiorari DENIED in part and GRANTED in part.

ERVIN, WEBSTER, and HAWKES, JJ., concur.


text:
    James PENN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1705.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2006.
    James Penn, pro se, Appellant.
    Charlie Crist, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from the trial court’s summary denial of the appellant’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court erred by denying the appellant’s claim that counsel was ineffective for failing to object to the imposition of a habitual felony offender sentence on the charge of possession of a controlled substance with the intent to sell, we reverse. We affirm all other issues without further discussion.

The appellant was found guilty of sale of cocaine and possession of cocaine with the intent to sell. On December 5, 2002, the appellant was sentenced to concurrent terms of 15 years’ imprisonment as a habitual felony offender to be suspended after 5 years’ imprisonment and the remaining portion to be served on probation. By way of a timely rule 3.850 motion, the appellant alleged that counsel was ineffective for failing to object to the imposition of a habitual felony offender sentence on the charge of possession of a controlled substance with the intent to sell. The trial court denied the claim as without merit. However, a defendant cannot be sentenced as a habitual felony offender for possession of a controlled substance with the intent to sell. § 893.13(l)(a)3., Florida Statutes (2001); Brown v. State, 744 So.2d 1184 (Fla. 2d DCA 1999). Thus, the appellant raised a facially sufficient claim that counsel was deficient because there was a legitimate basis for objecting to the sentence imposed by the trial court and the appellant received an illegal sentence as a result of this deficiency. Because the trial court failed to attach any portion of the record to conclusively refute this claim, we reverse and remand for further attachment of record portions or an evidentiary hearing.

AFFIRMED in part, REVERSED in part, and REMANDED.

KAHN, HAWKES, and THOMAS, JJ., concur.


text:
    Waadew AYSISAYH, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2484.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2006.
    Waadew Aysisayh, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 3, 2006, the court has determined that because the appellant’s motion for rehearing of the order denying relief from judgment was not authorized, Frantz v. Moore, 772 So.2d 581 (Fla. 1st DCA 2000), it failed to delay rendition- of the underlying order. Fla. R.App. P. 9.020(h). Consequently, the appellant’s notice of appeal was not timely filed and the appeal is hereby dismissed as untimely.

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


text:
    Marco Anthonio WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2723.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2006.
    Marco Anthonio Williams, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

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


text:
    Felix QUINTANILLA, Appellant, v. CORAL GABLES HOSPITAL, INC., Appellee.
    No. 3D05-1787.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Feiler, Leach & McCarron and Martin E. Leach, Coral Gables, for appellant.
    Schell, Mitchel & Cooley and Howard L. Citron, for appellee.
    Before GREEN, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Felix Quintanilla appeals from the entry of a final summary judgment in favor of Coral Gables Hospital, Inc., d/b/a Coral Gables Hospital, finding that Quintanilla’s negligence claim against Coral Gables Hospital is a medical malpractice claim, that Quintanilla’s failure to comply with the pre-suit notice and investigation requirements of the medical malpractice act required dismissal of the case, with prejudice, and that Quintanilla is now time-barred from bringing this action. We reverse.

Quintanilla was admitted as a patient to Coral Gables Hospital in September, 2002, complaining of a cough, shortness of breath, bronchitis and nasal congestion. On October 1, 2002, he requested hot tea from the nurse who spilled it on Quintanil-la while serving it to him resulting in burns on his legs and thigh. Quintanilla filed a simple negligence complaint against Coral Gables Hospital on October 19, 2004, alleging that the nurse, acting in the course and scope of her duty as an employee of Coral Gables Hospital, caused his injury by negligently spilling scalding hot tea on him, negligently failing to use reasonable precaution to prevent the hot tea from being spilled, and negligently brewing and storing the tea to such a temperature that it was unreasonably dangerous if spilled. Coral Gables Hospital answered and, as an affirmative defense, alleged that Quintanilla failed to comply with the pre-suit requirements under section 766.106, Florida Statutes (2002), by failing to file a notice of intent to initiate litigation with the hospital and by failing to have his claim corroborated by a medical expert as required by the statute.

Coral Gables Hospital filed its motion for summary judgment claiming that the serving of hot tea was the rendering of a medical service. Therefore, Quintanilla was required to comply with the pre-suit requirements of section 766.106, had not done so, and the statute of limitations had now run barring compliance. Coral Gables Hospital filed the affidavit of Maria De Los Santos, A.R.N.P., basically stating that it was her opinion that hot tea was a treatment modality for the cough associated with respiratory distress, and that the serving of food, fluids and other dietary and nutritional items, including hot tea, is part and parcel of medical care provided by the hospital staff to patients including Mr. Quintanilla. The trial court agreed that the claim was a claim for medical malpractice and entered final summary judgment which was timely appealed by Quintanilla.

Section 766.106(l)(a), defines a claim for medical negligence or medical malpractice as “a claim arising out of the rendering of, or the failure to render, medical care or services.” Not every wrongful act by a medical provider is medical malpractice. See Stackhouse v. Emerson, 611 So.2d 1365 (Fla. 5th DCA 1993). To be a malpractice claim, a wrongful act must be directly related to the improper application of medical services and the use of professional judgment or skill. Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002, 1003 (Fla. 3d DCA 1997). The injury must be a direct result of receiving medical care or treatment by the healthcare provider. Goldman v. Halifax Med. Ctr., Inc., 662 So.2d 367, 371 (Fla. 5th DCA 1995). In order to determine whether the pre-suit requirement of chapter 766 applies, the question is whether the plaintiff must rely upon the medical negligence standard of care, as set forth in section 766.102(1), Florida Statutes (2005), in order to succeed in the plaintiffs case. Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla.2002).

Coral Gables Hospital argues that because the nurse used her medical judgment to agree to give Quintanilla the hot tea he requested for his cough, the actual act of serving the hot tea amounts to a medical service pursuant to section 766.106(l)(a). We disagree. This is simply a claim that arises out of the act of serving a cup of hot tea. This is not a claim that arises out of the nurse’s medical judgment in giving Quintanilla the hot tea. The process of serving tea did not involve medical skill or judgment. The injury is not a direct result of receiving medical care from the provider. Even though, arguably, the nurse may have used her medical judgment to agree with Quintanilla’s request for hot tea to help his condition, the process of serving the hot tea did not require medical skill or judgment. See Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995) (a claim against a doctor and hospital for false imprisonment alleging failure to comply with the involuntary commitment provision of the Baker Act was not a claim for medical malpractice; plaintiff did not have to comply with pre-suit screening requirements; even though a medical diagnosis was necessary in order to involuntarily commit the patient, the process of complying with the statute did not require medical skill or judgment). Not only was Quintanilla not injured as a direct result of receiving medical care or treatment by the hospital employee, but in order to bring forth a claim of negligence, Quintanilla would not have had to show that a hospital employee breached a prevailing professional standard of care which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar healthcare providers, and that such a breach was the cause of his injuries. There does not appear to be a medical standard of care for serving hot tea. Therefore, Quintanilla was not required to comply with the medical malpractice pre-suit requirements.

The medical malpractice cases relied upon by Coral Gables Hospital are distinguishable. In each of the cases, the injury was as a direct result of receiving medical care or treatment by a hospital or hospital employee, and in order to prevail at trial, the plaintiff would have had to prove that a breach of prevailing professional standards was the cause of the injury in question. In Neilinger v. Baptist Hospital, Inc., 460 So.2d 564 (Fla. 3d DCA 1984), the plaintiff was injured when she slipped and fell in a pool of amniotic fluid while she was descending from an examination table under the direction and care of hospital employees. The accident occurred while the hospital was performing a direct medical service, and the plaintiff was injured as a direct result of receiving medical care or service. The plaintiff would have had to establish the acceptable and appropriate standard of care by a similar healthcare provider and that the breach of that standard was the cause of her injuries. In Puentes v. Tenet Hialeah Healthsystem, 843 So.2d 356 (Fla. 3d DCA 2003), the plaintiff alleged the dieticians and the kitchen employees aggravated her condition by giving her a diet contrary to what her doctor had ordered. The court determined that this was a medical malpractice case because her medical condition is what caused the doctor to order the hypoallergenic diet and speak personally to the dietician who did not follow his orders. The plaintiff would have had to show that the hospital’s failure to give her a hypoallergenic meal fell below the standard of care for patients who required special diets and that such breach was the cause of her injuries. Puentes, 843 So.2d at 358. In Goldman v. Halifax Med. Ctr., Inc., 662 So.2d at 367, the plaintiffs injury occurred when her breast implants ruptured during a mammogram due to the radiologist’s improper operation of the machine which caused excessive pressure. This also was medical practice as it was a direct result of the plaintiff receiving medical care or treatment, and it would have been necessary for a professional to testify as to the standard of care.

For the above reasons, we conclude that Quintanilla’s claim is not a claim for medical malpractice, but a claim for simple negligence that does not require compliance with section 766.106(1), pre-suit screening and notification.

Reversed and remanded.

      . (1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 768.50(2)(b), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment acceptable and appropriate by reasonably prudent similar health care providers.


text:
    Charles MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3627.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Charles Miller, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

The denial of appellant’s rule 3.800(a) motion to correct an illegal sentence filed in case numbers 80-01782 and 93-05219 is affirmed without prejudice. Appellant may file a rule 3.800(a) motion in case number 91-22625 if there is a scoresheet error that is apparent from the face of the record and if the life sentence could not have been imposed absent the alleged scoresheet error. See Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006).

STEVENSON, C.J., POLEN and SHAHOOD, JJ., concur.


text:
    Frankie E. RANDLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-3038.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Abe Bailey; and John H. Lipinski, for appellant.
    Charles J. Crist, Jr., Tallahassee, and Robin F. Hazel, for appellee.

      Before GERSTEN, SUAREZ, and CORTEÑAS, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Kimbrough v. State, 886 So.2d 965 (Fla.2004).


text:
    Ronnie A. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3455.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Ronnie A. Jones, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hayes v. State, 855 So.2d 144 (Fla. 4th DCA 2003).

STONE, GROSS and TAYLOR, JJ., concur.


text:
    William Coleman FELTS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2631.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    William Coleman Felts, in proper per-

      Charles J. Crist, Jr., Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

On July 26, 2004, defendant, William Coleman Felts, entered a guilty plea to one count of sexual battery on a minor in violation Section 794.011(2), Florida Statutes, one count of lewd and lascivious molestation of a child under twelve years in violation of section 800.04(5)(b), and one count of battery of a child by bodily fluids in violation of section 784.085. In each of these counts, the defendant was sentenced concurrently to fifteen years in state prison followed by ten years of probation.

Defendant filed a Rule 3.850 motion for post conviction relief alleging four grounds, one of which has merit. The State confesses that defendant is correct that the count regarding battery of a child by bodily fluids constitutes a third-degree felony. § 784.085(2), Fla. Stat. (2004). Third-degree felonies are punishable by a maximum sentence of five years. § 775.082(3)(d), Fla. Stat. (2004) (“For a felony of the third degree, by a term of imprisonment not exceeding 5 years.”). Since defendant’s fifteen-year sentence as to the third count exceeds the statutory maximum, we reverse and remand for re-sentencing on this count.

Affirmed in part, reversed in part and remanded for resentencing consistent with this opinion.


text:
    DORSEY REALTY INVESTMENTS, LLC, Appellant, v. Charles W. CAUSEY and Marabeth Causey, Appellees.
    No. 3D06-2138.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Lauri Waldman Ross, Miami; Nicholas W. Mulick, for appellant.
    Salomon, Kanner, Damian Rodriguez, and Vincent E. Damian, Jr., Miami, for appellee.
    Before GREEN, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Rackleff v. Texaco Trading & Transp., Inc., 611 So.2d 95, 97-98 (Fla. 1st DCA 1992).


text:
    Frank McGOEY, Appellant, v. SUN TOBACCO, INC., Appellee.
    No. 3D06-353.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Robert H. Cooper, Aventura, for appellant.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson and Kelly R. Melchiondo, Miami, for appellee.
    Before GREEN, FLETCHER, and CORTINAS, JJ.
   CORTINAS, Judge.

This is an appeal of final judgment after a non-jury trial. We affirm the trial court’s granting of appellee’s motion to strike appellant’s demand for a jury trial and, instead, proceed to a bench trial. Where, as here, the right or remedy is equitable in nature, there is no right to a jury trial. Robbins v. Section 3 Prop. Corp., 609 So.2d 670, 671 (Fla. 3d DCA 1992) (citations omitted), approved, 632 So.2d 596 (Fla.1993).

Affirmed.


text:
    Anthony GARDNER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-519.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Anthony Gardner, in proper person.

      Charles J. Crist, Jr., Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Anthony Gardner (“Gardner”), appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which Gardner sought jail time credit for time spent in a residential drug treatment program while on probation and as a special condition to his probation. We affirm.

Section 921.161(1), Florida Statutes (2005), provides:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

The Florida Supreme Court in Tal-Mason v. State, 515 So.2d 738 (Fla.1987), interpreted section 921.161(1), Florida Statutes, to apply to any period of time “served prior to conviction in any institution serving as the functional equivalent of a county jail,” and interpreted “the functional equivalent of a county jail” as not to include time spent in a drug rehabilitation facility as a condition of probation. Id. at 740; see also State v. Cregan, 908 So.2d 387, 389 (Fla.2005); Pennington v. State, 398 So.2d 815, 816 (Fla.1981); Molina v. State, 867 So.2d 645, 645 (Fla. 3d DCA 2004). Affirmed.


author: RAMIREZ, J.

text:
    Leisuris R. GALVEZ, Appellant, v. Raul RAMOS, Sr., etc., Appellee.
    No. 3D06-793.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.

      Camillo, Snowden & de Almeida, Fort Lauderdale, Howard W. Holden, and Jamie C. Dixon, for appellant.
    Vernis & Bowling, and Margaret K. Hey, Buffalo, New York, and Rob T. Cook, Islamorada, for appellee.
    Before GREEN, RAMIREZ, and SUAREZ, JJ.
   RAMIREZ, J.

Leisuris R. Galvez appeals the trial court’s order granting Raul Ramos, Sr.’s, motion for rehearing. We reverse, finding that the trial court lacked authority to grant rehearing in this case.

On June 25, 2003, the decedent, Raul Ramos, Jr., was a pedestrian on State Road No. 5 near mile marker 71 approximately two miles south of Islamorada, Monroe County, Florida, when he was struck and killed by a 1996 Kenworth truck driven by Rolando Garcia. Both the official Florida Traffic Crash Report and the Florida Highway Patrol Traffic Homicide Investigative Report establish that, at the time of the accident, Garcia owned the motor vehicle which he was driving.

Raul Ramos, Sr., as personal representative of the estate of Raul Ramos, Jr., filed a pro se wrongful death action against three defendants, including Leisur-is R. Galvez. Despite the undisputed fact that Rolando Garcia was the registered owner of the Kenworth truck involved in the accident, Ramos alleged in paragraph 11 of his complaint that Galvez may be a part-owner of Garcia’s truck or, alternatively, that Galvez may have been the owner of a company providing the dirt fill load which Garcia was hauling at the time of the accident. Ramos’ complaint also alleges a violation of Title 49 of the Code of Federal Regulations as a possible basis of liability by Galvez.

According to Galvez, he had no ownership interest in the 1996 Kenworth truck being driven by Garcia, Garcia was not working for Galvez, and Garcia was not moving any load owned by or on behalf of Galvez. Galvez filed a Motion for Final Summary Judgment, and oral argument was heard on January 5, 2006. Ramos then retained counsel, and a Notice of Appearance was filed on January 26, 2006. On January 30, 2006, the trial court entered Summary Final Judgment for Gal-vez. The trial court’s order was mailed directly to Ramos on January 30, 2006, who then forwarded it to his attorney. On February 14, 2006, Ramos served his Motion for Rehearing. On February 28, 2006, the trial court granted Ramos’ Motion for Rehearing.

Galvez contends that the trial court erred when it granted Ramos’ Motion for Rehearing, which was served more than ten days after the date the trial court entered Summary Final Judgment for Gal-vez. We agree.

First, this Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(4), which states, in pertinent part:

(4) Non-final orders entered after final order on motions that suspend rendition are not reviewable; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in rule 9.110. Other non-final orders entered after final order on authorized motions are revieivable by the method prescribed by this rule.

(emphasis supplied). This appeal is from a non-final order (the Order Granting Motion for Rehearing) entered after a final order on an authorized motion (Order Granting Motion for Final Summary Judgment). Accordingly, we have jurisdiction in this appeal.

Next, the trial court’s Summary Final Judgment for Galvez was filed on January 30, 2006. Then, on February 14, 2006, more than ten days after the date judgment was filed, Ramos served his Motion for Rehearing.

According to Florida Rule of Civil Procedure 1.530(b), a motion for rehearing must be served within ten days after the date judgment was filed. If not, the court lacks authority to grant rehearing. See Audi v. Federal Nat. Mortg. Ass’n, 685 So.2d 102 (Fla. 4th DCA 1997); Penalba v. Penalba, 616 So.2d 165 (Fla. 3d DCA 1993). Ramos was required to serve his Motion for Rehearing within the ten days afforded under Florida Rule of Civil Procedure 1.530(b). He did not do this, and thus, the trial court lacked jurisdiction to entertain his motion.

Ramos is now contending for the first time on appeal that there was a mistake on the face of the Order Granting Summary Judgment because the Order was mailed directly to him on January 30, 2006, despite the fact that a Notice of Appearance was entered on his behalf on January 26, 2006. Thus, he claims he is entitled to rehearing pursuant to Florida Rule of Civil Procedure 1.540. However, Ramos did not raise this issue before the trial court. The argument he did raise in the trial court was that he is entitled to an additional five days, pursuant to Florida Rule of Civil Procedure 1.090(e), to file a motion for rehearing because the order was sent directly to Ramos, instead of his attorney.

Generally, an appellate court cannot address claims raised for the first time on appeal. Krasnick v. State, 780 So.2d 1045, 1046 (Fla. 4th DCA 2001). Certainly, there are exceptions to this general rule. However, we find that there are none applicable to the case before us.

In addition, Florida law is clear that the time for service of a motion for rehearing is not extended by the five days provided by Florida Rule of Civil Procedure 1.090(e). See Dominguez v. Barakat, 609 So.2d 664 (Fla. 3d DCA 1992). The facts here establish that service of Ramos’ Motion for Rehearing was untimely because it was served more than ten days after the date the trial court entered Summary Final Judgment for Galvez. Accordingly, the trial court did not have jurisdiction to entertain Ramos’ Motion for Rehearing pursuant to Florida Rule of Civil Procedure 1.530. Furthermore, Ramos is not entitled to rehearing pursuant to Florida Rule of Civil Procedure 1.540. Accordingly, we reverse the trial court’s order granting Ramos’ Motion for Rehearing.

Reversed.