author: WEBSTER, J.

text:
    Leslie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3713.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2006.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Convicted of attempted second-degree murder and carrying a concealed firearm following a jury trial, appellant contends that he is entitled to a new trial on the attempted murder charge because the trial court committed fundamental error when it instructed the jury on the forcible felony exception to self-defense, which was appellant’s sole defense to that charge, and on the carrying a concealed firearm charge because the trial court denied his request for an instruction on the defense of necessity. We conclude that it was not error to deny the necessity instruction and, therefore, affirm the conviction for carrying a concealed firearm. However, because we conclude that the trial court committed fundamental error when it instructed the jury on the forcible felony exception to self-defense, thereby depriving appellant of his sole defense to the attempted murder charge, we are constrained to reverse that conviction, and to remand for a new trial on that charge.

Appellant went to trial on charges of attempted first-degree murder and carrying a concealed firearm. His sole defense to the former charge was self-defense. At the conclusion of the case, the trial court denied appellant’s request for a jury instruction on the defense of necessity as to the charge of carrying a concealed firearm. However, as to the attempted murder charge, it gave without objection the standard jury instruction on self-defense, including the forcible felony exception to self-defense to the effect that “the use of force likely to cause death or great bodily harm is not justifiable if you find ... [appellant] was attempting to commit, committing or escaping after the commission of an aggravated assault....” The jury found appellant guilty of the lesser-included offense of attempted second-degree murder, and of carrying a concealed firearm. The trial court subsequently adjudicated appellant guilty of those offenses, imposing a 25-year mandatory-minimum sentence for attempted second-degree murder and a concurrent five-year sentence for carrying a concealed firearm. This appeal follows.

The trial court did not err in refusing to instruct the jury on the defense of necessity. To be entitled to such an instruction, there must be evidence that (1) the defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others; (2) the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct; (3) there existed no other adequate means to avoid the threatened harm except the criminal conduct; (4) the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it; and (5) the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended. Bozeman v. State, 714 So.2d 570, 572 (Fla. 1st DCA 1998). The state correctly argues that appellant was not entitled to an instruction on the defense of necessity because (1) appellant did not face an imminent threat of death or great bodily harm when he armed himself with a concealed firearm after the victim had driven away; (2) appellant intentionally or recklessly placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct when he left his house with the concealed firearm to search for the victim and his vehicle; and (3) appellant had other adequate means to avoid the threatened harm- — i.e., he could have called the police.

Our supreme court has held that the failure to give an instruction regarding an affirmative defense, as opposed to an essential element of the crime charged, does not constitute fundamental error. Sochor v. State, 619 So.2d 285 (Fla.1993). However, it has distinguished between the total failure to give an instruction on an affirmative defense and giving an erroneous instruction, which may be considered fundamental error where the instruction is so flawed as to deprive the defendant of a fair trial. Holiday v. State, 753 So.2d 1264, 1269 (Fla.2000); Smith v. State, 521 So.2d 106, 107-08 (Fla.1988). Consistent with this authority, every district court of appeal in this state except ours has repeatedly held that, in cases where the defendant is charged with a single forcible felony for which the defendant claims self-defense, it constitutes fundamental error to instruct the jury on the forcible felony exception to self-defense because it totally negates the defense by improperly instructing the jury that the very act the defendant seeks to justify as an act of self-defense prevents the same act from being an act of self-defense. See, e.g., Smith v. State, 933 So.2d 1275 (Fla. 2d DCA 2006); Grier v. State, 928 So.2d 368 (Fla. 3d DCA 2006); Craven v. State, 908 So.2d 523 (Fla. 4th DCA 2005); Sloss v. State, 30 Fla. L. Weekly D2328, 2005 WL 2396309 (Fla. 5th DCA Sept. 30, 2005), rehearing granted and question certified, 31 Fla. L. Weekly D879, 2006 WL 733568 (Fla. 5th DCA Mar. 24, 2006) (en banc), review granted, 929 So.2d 1054 (Fla.2006). Although we have never addressed whether such an instruction constitutes fundamental error, we have held that it is error to instruct the jury on the forcible felony exception to self-defense under such circumstances because the instruction applies only in situations where the defendant is charged with an independent forcible felony in addition to the offense for which he claims self-defense. Barnes v. State, 868 So.2d 606, 607 (Fla. 1st DCA 2004).

The state argues first that the trial court correctly gave the forcible felony exception portion of the instruction on self-defense because appellant was, in fact, charged with two forcible felonies, contending that carrying a concealed firearm is also a forcible felony. The term “forcible felony” is defined by statute. Section 776.08, Florida Statutes (2002), reads:

“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

Although carrying a concealed firearm is not one of the offenses listed, the state argues that it is subsumed by the phrase “any other felony which involves the use or threat of physical force or violence against any individual.” We reject this contention. Clearly, merely carrying a concealed firearm does not “involve[ ] the use or threat of physical force or violence against any individual.”

The state argues next that the Third District reached a contrary result in Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006), and that we should follow that result. We reject this argument for two reasons. First, the opinion in Martinez does not appear to be final. More importantly, however, as Judge Altenbernd points out in Smith v. State, 933 So.2d 1275 (Fla. 2d DCA 2006), the Martinez majority clearly intended to limit its holding that no fundamental error occurred to cases where self-defense is not the defendant’s sole defense. It did not purport to overrule its decision only two months earlier in Grier v. State, 928 So.2d 368 (Fla. 3d DCA 2006) (and, of course, it could not). Here, self-defense was appellant’s sole defense to the attempted murder charge and, accordingly, Martinez is readily distinguishable. Therefore, we need not decide whether we agree with all of the Martinez majority’s discussion regarding fundamental error.

We see no point in restating further the rationales used by our sister districts to support their conclusions that, where the defendant is charged with a single forcible felony for which the defendant claims self-defense as his sole defense, it constitutes fundamental error to instruct the jury on the forcible felony exception to self-defense. Suffice it to say that we agree with those decisions and, therefore, align ourselves with our sister districts on this issue.

Finally, the state urges us to perform a harmless-error analysis to determine whether reversal is warranted. However, as our supreme court has recognized, “fundamental error is not subject to harmless error review. By its very nature, fundamental error has to be considered harmful.” Reed v. State, 837 So.2d 366, 369-70 (Fla.2002) (footnote omitted).

We affirm appellant’s conviction for carrying a concealed firearm. However, because we conclude that the trial court committed fundamental error when it instructed the jury on the forcible felony exception to self-defense, which was appellant’s sole defense to the attempted murder charge, we are constrained to reverse that conviction and to remand for a new trial on that charge.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

ERVIN and HAWKES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bennett K. TRESSLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2174.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2006.
    Bennett K. Tressler, pro se, Petitioner.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the August 5, 2005, order denying a motion to correct illegal sentence in Duval County Circuit Court ease number 16-1995-CF-13383-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P.' 9.141(c)(5)(D).

PETITION GRANTED.

BARFIELD, PADOVANO, and HAWKES, JJ., concur.


text:
    Stacey MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3197.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.
    Stacey Moore, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

The trial court’s order summarily denying appellant’s motion for post-conviction relief without prejudice is affirmed. Although the supplement to the motion for post-conviction relief contains a proper oath, the oath appended to the original motion is legally insufficient. Thus, the trial court properly denied appellant’s motion without prejudice to the filing of a duly sworn motion. See generally Scott v. State, 464 So.2d 1171 (Fla.1985); Hundley v. State, 929 So.2d 1087 (Fla. 4th DCA 2006).

STEVENSON, C.J., GUNTHER and KLEIN, JJ., concur.


author: STONE, J.

text:
    Edward A. WHALEN, Jr., Appellant, v. Jeanne Semet WHALEN, Appellee.
    No. 4D05-3936.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.
    Troy W. Klein of Troy W. Klein, P.A., West Palm Beach, for appellant.
    No appearance for appellee.
   STONE, J.

We reverse this judgment of dissolution and remand for re-calculation of the husband’s special equity in the parties’ home.

The trial court, in applying the Landay formula, correctly arrived at the number representing the husband’s special equity — 24.35%. The husband contributed a $76,000.00 down payment against the $156,000.00 acquisition cost of the property. Its fair market value at the time of dissolution was $400,000.00. The total of the first and second mortgages secured by the property is $99,000.00.

Landay mandates the formula to be used where non-marital assets are used by a spouse as a portion of the consideration for the entireties’ property. “[I]n addition to that spouse’s automatic one-half share, the contributing spouse acquires a special equity in the property equal to one-half the ratio which that spouse’s contribution bears to the entire consideration.” Landay, 429 So.2d at 1200. In other words, the starting place is a fifty/fifty split or automatic half interest. The formula is then used to “carve out from the other spouse’s interest in the property his or her special equity.” Id. In algebraic terms, the special equity formula is:

(.5)(76,000/156,000) = 24.35%
(half)(down payment divided by purchase price)

The trial judge calculated this figure correctly. Here, in order to arrive at the husband’s entire interest, 24.35% is added to 50% (his automatic half), giving him 74.35% of the home’s value. This allows the husband to “reap the fruits” of his original capital investment, while allowing the wife to share in the balance of the home’s increased equity. Id. at 1199. Landay instructs on the calculation of the interest, but goes “no further in explaining the logistics of distributing sale proceeds” or figuring the appropriate credits. Romano v. Romano, 632 So.2d 207, 212 (Fla. 4th DCA 1994).

In Hess v. Hess, 654 So.2d 199, 200 (Fla. 4th DCA 1995), our court expressly stated that correct determination of a party’s interest under the Landay formula required application to the fair market value of the property before reducing the share by half the amount of the mortgage.

In Griffiths v. Griffiths, 563 So.2d 773 (Fla. 3d DCA 1990), the Third District clearly applied the contributing spouse’s total interest to the gross value, then subtracted half of the mortgage amount to arrive at the value of each parties’ interest. Id. at 775. Donaldson v. Donaldson, 481 So.2d 101 (Fla. 2d DCA 1986), also clearly espouses this position. “[W]e believe that the formula must be applied to the total proceeds of sale, or total value of the property, rather than the excess proceeds.” Id. at 102.

Here, the trial court calculated the proper percentage but erroneously applied it against half of the net equity in the property, after satisfaction of the two mortgages, rather than applying it as a percentage of the whole. Further, as indicated, the accepted procedure is to apply this against the market value, not the net proceeds.

The husband’s special equity equals $97,400.00 ($400,000.00 fair market value x 24.35%), and his total interest in the property equals $297,400.00 (half of the property + special equity). The wife’s interest in the property is $102,600.00. The outstanding mortgages are then subtracted from these numbers to determine the parties’ individual net interests. The first mortgage is $80,000; $40,000.00 is apportioned to each. The husband has been assigned the entire second mortgage in the amount of $19,000.00. So, the husband will ultimately net $238,400.00 and the wife will net $62,600.00.

Elsewhere in the judgment, the trial court discusses a $19,000.00 second mortgage on the home obtained by the parties, the proceeds of which were used by the husband individually after separation. However, in the balance sheet figuring the amount due to each party, the trial court lists the amount of this same second mortgage as $20,000.00. Our record is insufficient to establish which amount is correct. This is apparently a scrivener’s error which should be corrected on remand.

Accordingly, we reverse the judgment and remand for modification.

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

      . Landay v. Landay, 429 So.2d 1197, 1199 (Fla.1983).


author: WOLF, J.

text:
    Tammy GUNDERSON, as Personal Representative for The Estate of Alan Gunderson, Deceased, Appellant, v. SCHOOL DISTRICT OF HILLSBOROUGH COUNTY and Broadspire fka CNA Claims Plus, Appellees.
    No. 1D05-4323.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2006.

      William H. McKnight, of William H. McKnight Esquire P.A., Tampa, for Appellant.
    L. Gray Sanders and Denise Puckett, of Barbass, Koenig, Nunez, Sanders & Butler, P.A., Tampa, for Appellees.
   WOLF, J.

In this workers’ compensation appeal, the claimant’s widow, as personal representative of his estate, seeks to enforce a settlement agreement signed .by the deceased and his former employer (E/C) immediately prior to his death. Because we find the settlement agreement became a binding, enforceable contract upon the later entry of an order approving attorney’s fees, we reverse the trial court’s order denying the claimant’s widow’s request to enforce the agreement.

The disputed settlement agreement read in its entirety:

This is a Washout Settlement under F.S. 440.20(11).
Parties agree to a complete and final settlement of all claimant’s claims for medical care and indemnify for $52,808 inclusive of attorney’s fees and costs. [Claimant] to pay $9,000 fees and $3,308 costs.
Claimant agrees to execute a general release and voluntary resignation. General release will not affect any vested pension or defined compensation rights. Parties understand settlement is effective and binding upon entry of order approving motion for attorney’s fees.

Both parties concede that the claimant failed to execute a general release or sign a voluntary resignation prior to his death. Both parties equally concede that the claimant’s widow sought and received an order approving her motion for attorney’s fees as personal representative of her husband’s estate and later executed a general release and voluntary resignation on her husband’s behalf. The E/C argues the deceased’s failure to execute these documents prior to his death negates its duty to pay the settlement fee. However, the claimant’s widow asserts that her execution and service of both the general release and a voluntary resignation, as personal representative of the deceased’s estate, amounts to performance of the contract, thereby requiring performance on the E/C’s part. The E/C never objected to the form of the voluntary release or resignation, but merely objected because they were not executed by the claimant prior to his death.

Where the order on appeal turns on the validity of a contract, it is subject to a de novo standard of review. See Cintas Corp. No. 2 v. Schwalier, 901 So.2d 307, 308, 309 (Fla. 1st DCA 2005) (citing Brasington v. EMC Corp., 855 So.2d 1212 (Fla. 1st DCA 2003)). However, to the extent that the issue of enforcement of a workers’ compensation settlement agreement following the claimant’s death is intermingled with findings of fact, this court should apply the competent substantial evidence standard to those determinations of fact made by the lower court. See Quinlan v. Ross Stores, 932 So.2d 428, 429 (Fla. 1st DCA 2006); cf. Calderon v. J.B. Nurseries, Inc., 933 So.2d 553 (Fla. 1st DCA 2006).

In defense of its failure to perform the settlement agreement, the E/C asserts that the deceased’s execution of the general release and voluntary resignation were either conditions precedent or conditions subsequent to the formation of a valid contract and, thus, the failure to execute the documents renders the settlement agreement non-binding. This argument is without merit. Provisions of a contract will only be considered conditions precedent or subsequent where the express wording of the disputed provision conditions formation of a contract and or performance of the contract on the completion of the conditions. See In re Estate of Boyar, 592 So.2d 341, 343 (Fla. 4th DCA 1992) (holding conditions precedent are not favored, and clauses will not be construed as conditions precedent unless the plain, unambiguous meaning of the contract requires the court to do so); see also Quinlan, 932 So.2d at 428 (holding that an agreement to settle entered into upon mediation of a workers’ compensation settlement never materialized into a binding contract where the expressly written conditions to enforcement were never met); Black’s Law Dictionary, 312 (8th ed. 2004) (defining a condition subsequent as a condition that, if it occurs, will bring something else to an end; an event the existence of which, by agreement of the parties, discharges a duty of performance that has arisen).

No such wording exists in the disputed contractual provisions. The only conditional wording found in the agreement conditioned the binding nature of the agreement upon the deceased claimant’s receipt of an order approving his motion for attorney’s fees. Thus, the execution of the general release and the voluntary resignation were not conditions to the contract’s performance or creation. In addition, the deceased claimant’s wife’s filing of a motion seeking approval of attorney’s fees, as personal representative of her husband’s estate, and later receipt of an order approving the motion for attorney’s fees, created a binding settlement agreement per the express conditional wording of the settlement agreement.

The settlement agreement became a binding contract upon the wife’s receipt of the order approving attorney’s fees. Thus, the E/C may be excused from performance of the settlement agreement only if the wife’s execution as personal representative of the deceased’s estate of the general release and voluntary resignation did not amount to performance under the contract’s terms. The general rule is that contracts for personal services contain an implied condition that such contracts dissolve at the time of the contractor’s death. See CNA Int’l Reinsurance Co., Ltd. v. Phoenix, 678 So.2d 378, 380 (Fla. 1st DCA 1996). Restatement (Second) of Contracts § 262 defines a contract for “personal services” as a contract where the existence of a particular person is necessary for the performance of a duty. In addition, section 733.612(2), Florida Statutes (2004), authorizes a personal representative to “perform or compromise, or when proper, refuse to perform, the decedent’s contracts.... ” Similarly, section 733.612(24), Florida Statutes (2004), authorizes a personal representative to “satisfy and settle claims.”

The main purpose of this settlement agreement was to bring to a close all litigation regarding the claimant’s workers’ compensation claims in return for a settlement payment. The duty of performance on the claimant’s part was a duty which could statutorily be performed by his representative in the event of his death through the effectuation of the necessary documents. These were not duties which the claimant’s death, rendered impossible to perform.

More importantly, the death of a claimant following the execution of a settlement agreement will not affect the agreement’s enforcement if the personal representative can show that a binding contract was reached. See Jacobsen v. Ross Stores, 882 So.2d 431 (Fla. 1st DCA 2004). Here, a binding contract was reached at the entry of the trial court’s order approving attorney’s fees. In addition, the claimant’s widow’s general release serves to alleviate all fears of further litigation where she, as the representative of the claimant’s estate, is the only individual who could litigate claims on the deceased’s behalf. Moreover, by virtue of his death, the E/C may rest assured that the claimant will not demand further employment. As such, the claimant’s widow’s effectuation of the necessary documents performed all duties required of the claimant, rendering the binding settlement agreement non-personal in nature, and requiring performance on the E/C’s part.

REVERSED AND REMANDED.

VAN NORTWICK and BROWNING, JJ., concur.


text:
    Joel R. BROWN, Appellant/Cross-Appellee, v. JUSTIN C. JOHNSON & ASSOCIATES, P.A. and Summit Consulting Claim Center, Appellees/Cross-Appellants.
    No. 1D05-3608.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2006.
    Byron E. Townsend, Tampa, and Bill McCabe, Longwood, for AppellanVCross-Appellee.
    Ivan Matusek, and Raymond O. Burger of Matusek, McKnight, Poluse & Cangro, P.A., St. Petersburg, for Appellees/Cross-Appellants.
   PER CURIAM.

In this workers’ compensation case, claimant appeals, and the employer and servicing agent cross-appeal, the final merits order entered by the judge of compensation claims, which denied the petitions for benefits in their entirety based on the finding that claimant had failed to prove that his injuries were sustained within the course and scope of his employment. Our review of the record satisfies us that the judge followed the applicable law, including Suniland Toys & Juvenile Furniture, Inc. v. Karns, 148 So.2d 523 (Fla.1963), and that her findings as to that issue are supported by competent, substantial evidence. Because we conclude that the determination regarding course and scope of employment does not constitute error, it is unnecessary for us to address claimant’s remaining issues or the issues raised by the cross-appeal.

AFFIRMED.

WEBSTER, BROWNING and HAWKES, JJ., concur.


text:
    Robert E. DRAGON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3196.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.
    Robert E. Dragon, Avon Park, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion to correct illegal sentence. See Brown v. State, 927 So.2d 1024 (Fla. 4th DCA 2006). As in Brown, we certify conflict with King v. State, 911 So.2d 229 (Fla. 2d DCA 2005), and Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003).

Affirmed.

GUNTHER, SHAHOOD and GROSS, JJ., concur.


author: STRINGER, Judge.

text:
    Theodore A. ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3939.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 2006.

      James Marion Moorman, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Theodore Roberts challenges his convictions for aggravated stalking, battery, harassing telephone calls, criminal mischief, burglary of a dwelling with assault or battery, aggravated battery, and assault. Roberts raises three points on appeal, two of which have merit. We reject Roberts’ argument that the trial court failed to conduct a proper Faretta hearing without further discussion. However, because the trial court abused its discretion in cutting short Roberts’ voir dire without notice and erred as a matter of law in refusing to permit Roberts to use his peremptory challenges properly, we reverse and remand for a new trial.

Roberts was charged with numerous offenses arising out of his conduct toward his former girlfriend after she ended the relationship. Roberts elected to represent himself during his trial, and the trial court appointed stand-by counsel to be in the courtroom with Roberts. During voir dire, the State questioned the potential jurors for about an hour. After Roberts had been questioning the jurors for about an hour, the State objected that Roberts was asking repetitive questions. The trial court then called Roberts to the bench and asked if he had any new questions. When Roberts replied that he had “plenty” of new questions, the trial court responded, “No, you don’t have plenty of new questions. You see the time? You’ve got about ten minutes.” The court then told Roberts that he had “wasted all this time” and suggested that he “use the time that you have wisely.” Roberts objected to his time being cut short but complied with the trial court’s time limitations.

Once the parties had completed their questioning of the jurors, the trial court began the selection process itself. First, the trial court went through the venire, juror by juror, and asked both Roberts and the State if they had a challenge for cause as to each juror. After all of the challenges for cause had been addressed, the trial court stated that it would move on to allowing the parties to exercise their peremptory challenges. In doing so, the court said to Roberts,

Now, let’s start up at the top with the people who are left. And I’m going to ask you if you want them or don’t want them. And if you don’t want them, you have to give me a reason based on something that they said, okay. It’s not just, I don’t like the way they look. Okay?

Following this, when Roberts attempted to exercise his first peremptory challenge on juror number six, the trial court required Roberts to provide a reason for the strike. When Roberts gave his reason, the trial court told him that his reason was not good enough, and the court refused to strike the prospective juror. Roberts raised the issue several times, including when the court asked whether the jury was acceptable. At that point, the following took place:

THE COURT: Okay. That’s six. Anything — anybody in the first six, anybody else you want to get rid of, M*1. Roberts, that we haven’t already talked about?
THE DEFENDANT: That’s six. That wasn’t all the way accept [sic] with me.
THE COURT: We have two, five, six, nine, ten and twelve. And that’s what we need, a jury of six.
THE DEFENDANT: I didn’t accept with number six. I didn’t say it was six. I didn’t accept six.
THE COURT: I know you didn’t, but she’s sitting here because there isn’t a good reason in the record for her not to sit.

The trial court then swore the jurors to try the case. The jury, of which juror number six remained a member, subsequently convicted Roberts as charged on some counts and convicted him of lesser-included offenses on other counts.

In this appeal, Roberts first contends that the trial court improperly limited his time for questioning the venire. Under the circumstances presented here, we agree.

[A] trial judge has “considerable discretion in determining the extent of counsel’s examination of prospective jurors.” Williams v. State, 424 So.2d 148, 149 (Fla. 5th DCA 1982). However, this discretion must be exercised in light of Florida Rule of Criminal Procedure 3.300(b) which provides that the parties, through counsel, have the right to conduct an examination of each prospective juror. Although the trial judge certainly has the discretion to limit repetitive and argumentative voir dire, a trial judge must allow counsel the opportunity to ascertain latent or concealed prejudgments by prospective jurors. See Stano v. State, 473 So.2d 1282, 1285 (Fla.1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986).

Miller v. State, 683 So.2d 600, 602 (Fla. 2d DCA 1996). Thus, while the trial court certainly has discretion to limit the amount of time for voir dire, if the trial court is going to do so, it must give the parties reasonable notice of the time constraints so that they can pace the timing of their questioning as they see fit. Rodriguez v. State, 675 So.2d 189, 191 (Fla. 3d DCA 1996).

When the parties are given reasonable notice of the time constraints to be imposed on voir dire, this court has affirmed the imposition of such time constraints. See, e.g., Watson v. State, 693 So.2d 69, 70 (Fla. 2d DCA 1997) (affirming time limit of thirty minutes per side for voir dire when counsel was told of this limitation prior to the start of questioning). However, when counsel is not given any advance notice of a time constraint on voir dire, the imposition of that constraint constitutes reversible error. Rodriguez, 675 So.2d at 190 (reversing for a new trial when the court did not tell counsel prior to voir dire of any time limits, allowed the State to question the jurors for forty-five minutes, and then told defense counsel to wrap it up in five minutes after she had questioned the jurors for forty-five minutes).

Here, as in Rodriguez, the trial court did not tell either party that there was any time limit on voir dire before questioning started. Because Roberts had no advance notice of the time constraints involved, he was not able to properly pace his questioning. While the trial court may have correctly found that Roberts was asking repetitive questions, the trial court could not find that Roberts was making “inappropriate use of the time allotted,” see Rodriguez, 675 So.2d at 191, because there was no “time allotted” before voir dire was cut off. Under these circumstances, the trial court’s imposition of a ten minute time limit on Roberts in the midst of his questioning was an abuse of discretion that constitutes reversible error.

Roberts also contends that the trial court erred by requiring him to give a reason for exercising his peremptory challenges and by requiring that reason to be a “good reason” that was “supported by the record.” We agree.

Florida law provides for two separate types of challenges to potential jurors with distinctly different underpinnings. Cause challenges can be made on certain enumerated grounds, including a potential juror’s impartiality. Peremptory challenges, on the other hand, can be used to excuse a juror for any reason, so long as that reason does not serve as a pretext for discrimination. The United States Supreme Court succinctly characterized the distinctions between cause and peremptory challenges as follows:
The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control. While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable.

Busby v. State, 894 So.2d 88, 99 (Fla.2004) (quoting Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled on other grounds by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). Thus, the essence of the peremptory challenge is that it may be used for any reason, and ordinarily the trial court may not require a party to provide a reason for the use of a peremptory challenge. Id. Rather, in order to effectuate the right to be tried by an impartial jury, the defendant may use his peremptory challenges against potential jurors “without giving his reason for not wishing them to pass upon his guilt or innocence.” Carroll v. State, 139 Fla. 233, 190 So. 437, 438 (1939); see also Meade v. State, 85 So.2d 613, 615 (Fla.1956); Shannon v. State, 770 So.2d 714, 716 (Fla. 4th DCA 2000) (“Neither Trotter [v. State, 576 So.2d 691 (Fla.1990)], nor any other authority cited by the state, requires an explanation as to why the juror who sat was objectionable. Nor should an explanation be required since a peremptory challenge is, by definition, a challenge that ‘need not be supported by any reason.’ ”). A trial court’s failure to permit a party to exercise its peremptory challenges in accordance with the law is reversible error. Van Sickle v. Zimmer, 807 So.2d 182 (Fla. 2d DCA 2002).

Here, the trial court did not permit Roberts to exercise his peremptory strikes in accordance with the law. Instead, the trial court improperly required Roberts to give a reason for his intended strikes and improperly attempted to exert control over Roberts’ choice of jurors by determining whether it agreed with the reason given. These actions constitute reversible error.

Based on both of these errors during jury selection, we reverse Roberts’ convictions and remand for a new trial.

Reversed and remanded.

DAVIS and SILBERMAN, JJ„ Concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: NORTHCUTT, Judge.

text:
    Alex BISTRICER, as limited partner of Gulf Island Resort, L.P.; and Gulf Island Resort, L.P., Petitioners, v. OCEANSIDE ACQUISITIONS, LLC, a Florida limited liability company; and DBKN Gulf Incorporated, a Florida corporation, Respondents.
    No. 2D06-541.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 2006.
    Maurice J. Baumgarten of Anania, Bandklayder, Blackwell, Baumgarten, Tor-ricella & Stein, Miami, for Petitioners.
    Stacy D. Blank, William S. Dufoe, and Robert W. Lang of Holland & Knight LLP, Tampa, for Respondents.
   NORTHCUTT, Judge.

Gulf Island Resort, L.P., and one of its limited partners, Alex Bistricer, seek cer-tiorari review of an order compelling Gulf Island to perform maintenance and repairs on condominium units at issue in an underlying quiet title action. We treat the petition as a nonfinal appeal and reverse.

In the suit below, Gulf Island alleged that it had held title to certain condominium units in Hudson, Florida, and that one of its member partners improperly conveyed the units to his own corporation. The units were then sold to Oceanside Acquisitions, LLC. Alleging that Oceanside purchased the units when it knew that the seller lacked authority to convey them, Gulf Island filed a quiet title suit against Oceanside and various related or involved entities. It also asserted a claim for slander of title. Oceanside and its codefen-dants counterclaimed to quiet title.

When a status conference was held in 2003, Gulf Island was in possession of the units and had a representative on site, but Oceanside was the record title holder. At the hearing Oceanside argued for leave to sell the units and escrow the proceeds until conclusion of the suit. It complained that the units were being neglected and it contended that the sales were necessary to prevent waste, citing complaints it had received about the condition of the units. Gulf Island opposed the sales. It volunteered to make necessary repairs if provided with notice of the complaints. Subsequently, the circuit court entered an order requiring that notice of any complaints be delivered to both Gulf Island and Oceanside and requiring Gulf Island to “address [the noticed] conditions, issues or problems ... and if responsible for the repair [to] make repairs to such extent that are necessary to prevent waste, deterioration or unsafe/unhealthy/unclean conditions” until the suit was resolved.

In 2005, Oceanside and its codefendants filed a motion and amended motion for contempt and sanctions and to compel Gulf Island to perform maintenance and repairs to the units. On the issue of repairs, Gulf Island argued that the prior order was premised on Gulf Island’s possession of the units. It further asserted that it was no longer the party in possession. Gulf Island also contended that either the condominium association or the builder were responsible for certain repairs. At the hearing the circuit court acknowledged the necessity of an evidentiary hearing on these matters, but ultimately it ruled without conducting one. The court concluded that Oceanside had not shown grounds for contempt. But the court entered an order requiring Gulf Island “to perform all maintenance and to make all repairs ... that are necessary to prevent waste, deterioration or unsafe/unhealthy/unclean conditions[.]” Gulf Island has petitioned for a writ of certiorari to quash the order.

The order at issue directs action on the part of Gulf Island. As such, it is in the nature of a mandatory injunction. 29 Fla. Jur.2d Injunctions § 3. Prejudgment injunctions are renewable by appeal. Fla. R.App. P. 9.130(a)(3)(B) (allowing review of nonfinal order granting or continuing injunction); Philip J. Padovano, Florida Appellate Practice § 22.5 (2003 ed.). Accordingly, we treat this case as a nonfinal appeal of an injunction rather than as a petition for certiorari.

To merit injunctive relief, a party must show “a clear legal right or interest in the subject matter, a likelihood of irreparable harm, a substantial likelihood of succeeding on the merits,” and in some cases “a showing that the public interest would be served or would not be injured by the granting of the injunction[.]” Lee County v. S. Fla. Water Mgmt. Dist., 805 So .2d 893, 896 (Fla. 2d DCA 2001) (citations omitted). The injunction in this case was entered without an evidentiary hearing, and therefore it lacks any factual basis. For this reason, it must be reversed. See City of Indian Rocks Beach v. Tomato, 834 So.2d 341, 342 (Fla. 2d DCA 2003) (reversing order in the nature of an injunction, entered after motion to compel compliance with prior order, when “no proof was offered to demonstrate the elements required to be proven before issuance of an injunction”).

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.

      . "Waste may be committed by, and only by, one rightfully in possession of the land[,]” 22 Fla. Jur.2d Estates, Powers and Restraints § 161, and an injunction is the ordinary remedy, id. § 166.


text:
    Sandra CHAPMAN, Appellant, v. NATIONSBANK and Royal & Sunalliance, Appellees.
    No. 1D05-4938.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2006.
    Sandra Chapman, pro se, Appellant.
    Joshua M. Levy of Silver, Levy, Feld-man & Bass, P.A., Miami, for Appellees.
   PER CURIAM.

In this workers’ compensation case, the finding of the judge of compensation claims that appellant intentionally made false, fraudulent and misleading statements in an attempt to obtain benefits for her psychiatric condition in violation of section 440.105(4)(b), Florida Statutes (1997), is supported by competent, substantial evidence in the record. Accordingly, the judge correctly held that appellant was precluded from receiving any workers’ compensation benefits by section 440.09(4), Florida Statutes (1997). See, e.g., Citrus Pest Control v. Brown, 913 So.2d 754 (Fla. 1st DCA 2005). The judge’s finding also rendered moot appellant’s contention that the judge erred when she declined to appoint an expert medical examiner to resolve alleged conflicts in opinions regarding appellant’s psychiatric condition.

AFFIRMED.

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


text:
    HARBOUR BREEZE PLANTATION, LLC, Appellant, v. Janet S. HURST, individually, Advanced Homes Construction, LLC, and First American Title Insurance Company, d/b/a Associated Land Title Group, Appellees.
    No. 1D06-0269.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2006.

      Amy A. Perry, David B. Pleat, and John B. Fuller, III, of Pleat & Perry, P.A., Destín, for Appellant.
    Clayton J.M." Adkinson, DeFuniak Springs, for Appellee Janet S. Hurst.
   PER CURIAM.

Upon consideration of the appellant’s response to the court’s order of August 14, 2006, the court has determined that the order does not constitute a final order of dismissal. Specifically, although the order grants a motion to dismiss with regard to a party, the lower tribunal has not yet dismissed the individual as a party to the action. See generally Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

DISMISSED.

WOLF, VAN NORTWICK, and BROWNING, JJ., concur.


author: WALLACE, Judge.

text:
    Salah E. DARWISH, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4643.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 2006.

      Ronald N. Toward, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Salah E. Darwish challenges his judgment and sentence for the third-degree felony of cheating, section 817.29, Florida Statutes (2004). Mr. Darwish was convicted of cheating by false pretenses after an investigation showed that he was selling bottled water that had been distributed gratuitously as relief supplies in the aftermath of Hurricane Charley. Because the State failed to prove that the distributor of the supplies relied on a misstatement of fact made by Mr. Darwish concerning his intended use of the bottled water, we reverse the judgment and sentence imposed on Mr. Darwish.

I. THE FACTS

On August 13, 2004, Hurricane Charley roared ashore at Charlotte Harbor in Charlotte County. The storm left a path of destruction in its wake as it crossed the state in a northeasterly direction over central Florida. Polk County suffered severe and widespread damage from the storm. The small community of Alturas, which is located south of State Road 60 between Bartow and Lake Wales, was especially hard hit. Many individuals and businesses in the area were without electrical power and water for several days.

Officials managing the relief effort made arrangements for bottled water and ice to be shipped from out of state directly to distribution centers in the areas where they were needed. The Alturas Fire Station was one of the centers designated for the distribution of these essential relief supplies. Firefighters and volunteers working at the station assisted in unloading the trucks and distributing the supplies.

The bottled water was distributed at no charge. Persons receiving the water were not required to fill out an application or to identify themselves. Two cases of water was a normal distribution in the first days of the relief effort. However, the relief workers would give additional cases on request to people who had special needs or who were taking water for distribution to others. In such instances, the relief workers might ask persons requesting additional cases to explain what they were doing with the water.

At the time of the storm, Mr. Darwish operated a convenience store in Alturas that was located around the corner from the fire station. The store was without electrical power and fresh water after the storm. On August 17, 2004, Belinda Tanner — an Alturas resident — visited Mr. Darwish’s store. Ms. Tanner had previously received several cases of bottled water at the fire station. On her visit to Mr. Darwish’s store, Ms. Tanner noticed that he was selling the same kind of bottled water that was being distributed for free at the nearby fire station. Ms. Tanner linked the water that Mr. Darwish was selling to the relief supplies because it was a distinctive brand that was not normally sold.or distributed in Florida. Ms. Tanner bought a gallon bottle of water and a cup of ice from Mr. Darwish for $1.59. A legend on the bottle stated that the water had been bottled on August 15, 2004, two days after the storm. However, the bottle did not indicate that it was not intended for resale. Ms. Tanner saved the bottle and marked it so that she could identify it later as having been purchased from Mr. Darwish. After she left the store, Ms. Tanner contacted the authorities and complained about Mr. Darwish’s sale of the water.

Mr. Ruben Gardner of the Florida Department of Agriculture and Consumer Services responded to Ms. Tanner’s complaint. After speaking with Ms. Tanner, Mr. Gardner visited Mr. Darwish’s store. Mr. Gardner observed and photographed the same brands of bottled water in the store’s cooler that had been distributed at the nearby fire station as part of the relief effort. Mr. Gardner saw additional cases of the water from the relief effort stored on the floor in the back of the store. Mr. Darwish initially denied that he had obtained the water from the fire station. After Mr. Gardner questioned him further, Mr. Darwish admitted that the bottled water in the store came from the relief supplies. Mr. Darwish offered to make amends by writing a check as a donation to the fire department. Mr. Gardner arranged for some of the water to be returned to the fire station.

II. THE PROCEEDINGS IN THE CIRCUIT COURT

Following the completion of Mr. Gardner’s investigation, the State charged Mr. Darwish with committing three felonies: initiating the theft of property and trafficking in that property, section 812.019(2), a first-degree felony (count one); scheming to defraud and obtaining property thereby, section 817.034(4)(a)(3), a third-degree felony (count two); and cheating by false pretenses, section 817.29, a third-degree felony (count three). The parties agreed to a bench trial. The State nolle prossed count two before trial, and Mr. Darwish was tried on the trafficking-in-stolen-property and cheating charges. The defense challenged the sufficiency of the State’s proof with a timely motion for a judgment of acquittal on both charges. The trial court entered a verdict that acquitted Mr. Darwish of the trafficking charge and found him guilty of cheating by false pretenses. Afterward, the trial court adjudged Mr. Darwish to be guilty of cheating and placed him on probation for five years.

The State’s main witness on the cheating charge was Lawrence Burrell, a Polk County firefighter. Mr. Burrell was assigned to the Alturas Fire Station. One of Mr. Burrell’s duties after the hurricane was distributing relief supplies to residents of the area. Mr. Burrell had known Mr. Darwish before the storm because he had visited Mr. Darwish’s nearby store.

Mr. Burrell testified that on his first contact with Mr. Darwish after the hurricane, Mr. Darwish came to the fire station with a shopping cart. On this occasion, Mr. Darwish collected ice and “probably just a couple of cases” of bottled water. Approximately two days later, Mr. Dar-wish came to the fire station in his van. Mr. Burrell believed that Mr. Darwish picked up more than two cases of water on the second visit “because in the van he can carry a little bit more.” The noteworthy feature of Mr. Darwish’s second appearance at the fire station was a gratuitous comment that he made to Mr. Burrell, “It’s not like I’m going to go and sell out of my store.” Mr. Darwish concluded this unsolicited remark with laughter.

III. THE PARTIES’ ARGUMENTS

Mr. Darwish argues that the verdict of guilty for' cheating is unsupportable because of the absence of any “nexus” between Mr. Darwish’s comment noted above and his receipt of the bottled water. In support of this point, Mr. Darwish points out that there was no evidence that his comment induced Mr. Burrell to part with the water. In response, the State characterizes Mr. Darwish’s conduct as “beyond words” and “tragic.” The State argues that the bottled water was “obviously” not intended for re-sale and was restricted for consumption by victims as part of the hurricane relief effort.

IV. DISCUSSION

A. Introduction

A claim that a person has misappropriated relief supplies intended for the victims of a natural disaster naturally provokes public outrage and condemnation. See, e.g., Wiley v. Ohio/Oklahoma Hearst Argyle Television, Inc., 33 Fed.Appx. 434 (10th Cir.2002) (describing how a woman who was accused of taking supplies from a relief center set up by the Red Cross for tornado victims was dubbed a “relief thief’ by a local television station). In this case, we expect that many people would find Mr. Darwish’s conduct to be offensive from an ethical point of view. But the question before us is not one of morality. We are called upon to decide whether the trial court’s verdict finding Mr. Darwish guilty of cheating by false pretenses is supported by competent, substantial evidence. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Bradford v. State, 460 So.2d 926, 930 (Fla. 2d DCA 1984). To address this question, we turn now to an examination of the relatively obscure offense of cheating.

B. The Cheating Statute

The cheating statute, section 817.29, provides:

Cheating. — Whoever is convicted of any gross fraud or cheat at common law shall be guilty of a felony of the third degree, punishable as provided in, s. 775.082, s. 775.083, or s. 775.084.

Section 2.01, Florida Statutes (2004), provides, with certain exceptions, that the common and statute laws of England, as of July 4, 1776, are in force in Florida. Therefore, “the English Statute 30 Geo. II c. 24 (1757), the first section of which makes it a crime to obtain money or goods with intent to cheat or defraud by false and untrue pretenses, is the law of this State.” State v. Peterson, 192 So.2d 293, 294-95 (Fla. 2d DCA 1966). Cheating by false pretenses may be defined as “[t]he intentional obtaining of both the possession and ownership of money, goods, wares, or merchandise by means of misrepresentations, with the intent to defraud.” Black’s Law Dictionary 252 (8th ed. 2004).

In order to assess Mr. Darwish’s argument that the State failed to prove a prima facie case against him, we must first determine the elements of the offense for which he was convicted. There are only a handful of reported decisions that have addressed Florida’s cheating statute. These decisions do not discuss the elements of cheating by false pretenses. Therefore, we must seek guidance concerning the elements of this offense by examining decisions that have construed other Florida statutes relating to obtaining money or property by false pretenses.

C. The Elements of False Pretenses

On the question of the elements of false pretenses, the decision in Finlay v. State, 152 Fla. 396, 12 So.2d 112 (1943), is instructive. In Finlay, the defendant had been convicted of obtaining money under false pretenses, section 817.01, Florida Statutes (1941). In considering the defendant’s challenge to his conviction, our supreme court enumerated the five elements of obtaining money under false pretenses: “(1) false representation of a past or existing fact; (2) knowledge of its falsity; (3) intent to defraud; (4) reliance on the misstatement by the other party; and (5) surrender by the other party of property because of the representation.” Id. at 113. We conclude that a prima facie case of cheating by false pretenses must include proof of these elements. Here, Mr. Dar-wish’s argument focuses on the element of reliance, and it is to this element that we now direct our attention. Once again, we must rely on decisions concerning offenses analogous to cheating by false pretenses.

D. The Element of Reliance

Deception is the essence of the crime of obtaining property by false pretenses. Ex parte Stirrup, 155 Fla. 173, 19 So.2d 712, 713 (1944). Therefore, proof of “a causal relation between the representation or statement made and the delivery of the property” is required to sustain a conviction for this crime. Id. Where the evidence fails to show that the victim was induced to part with money or property in reliance on a misstatement of fact by the defendant, a conviction for obtaining money or property by false pretenses may not be sustained. See, e.g., Collins v. State, 319 So.2d 135 (Fla. 2d DCA 1975) (reversing conviction for larceny by trick where there was no showing of reliance on any representation made by the defendant). On the other hand, a conviction for such an offense may be upheld where the element of reliance is proven or conceded. See, e.g., Finlay, 152 Fla. 396, 12 So.2d 112 (affirming conviction for obtaining money by false pretenses where defendant’s misrepresentations of fact induced donor to make a charitable contribution); Youngker v. State, 215 So.2d 318, 323-24 (Fla. 4th DCA 1968) (affirming conviction for grand larceny by false pretenses where building contractor who obtained construction draw from bank by means of false lien waiver conceded that he knew that the bank would rely on the waiver); Green v. State, 190 So.2d 614 (Fla. 3d DCA 1966) (affirming conviction for grand larceny by obtaining money by false pretenses where the evidence showed that victim would not have given money to defendant absent defendant’s false representations). See generally 3 Wayne R. LaFave, Substantive Criminal Law § 19.7(c) (2d ed. 2003) (discussing the element of reliance in connection with the crime of obtaining money or property by false pretenses).

E.The Trial Court’s Findings on the Issue of Reliance

In this case, the trial court entered a written verdict stating its findings of fact and conclusions of law. On the issue of reliance, the trial court focused on the gratuitous remark Mr. Darwish made to Mr. Burrell when Mr. Darwish picked up the second load of water in his van. The trial court found:

Albeit that [Mr. Darwish] initiated the conversation with Mr. Burrell, rather than waiting to see if Mr. Burrell was going to specifically question him as to the reason why he was seeking a greater than average quantity (which, pursuant to Mr. Waters, Mr. Burrell’s supervisor in the relief operation, would have been standard policy), [Mr. Darwish] specifically obtained the van load of water by telling Mr. Burrell that: “It’s not like I’m going to go and sell at my store.”, followed by [Mr. Darwish’s] laughter at this particular remark. Despite vigorous cross-examination, Mr. Burrell was unshaken in his testimony that [Mr. Darwish] specifically told him this while obtaining the van load of water on this second trip to procure water from Mr. Burrell.

After a thorough review of the record, we conclude that the trial court’s finding of reliance is not supported by competent, substantial evidence.

The critical testimony on the issue of reliance came from Mr. Burrell, the firefighter on duty when Mr. Darwish picked up the second load of water in his van. In pertinent part, Mr. Burrell testified:

Q. Tell us about your first contact with [Mr. Darwish]?
A. He came up with a shopping cart at that first time that I noticed and he got ice and water.
Q. Do you know how much water he got?
A. No. Not at that time. Probably just a couple of cases. Because that was what we were basically handing out at that time.
Q. Was there a subsequent time that he visited the fire department to get water?
A. I saw him later on. I don’t remember how many days, probably a couple days after that. He came up in that van that I saw him in.
Q. How much water did he get that time?
A. It was probably a couple more cases than in the shopping cart because in the van he can carry a little bit more. And the main thing was to pass out because you were trying to get the word out to other people. Thinking that they would pass out to friends and family.
Q. So, he got more than two cases at least that day?
A. Yes, sir.
Q. Okay. At any point during your contact with him, did he make a joke or a comment that you found, at least at this time, in perspective that would be unusual?
A. Yes, sir.
Q. As best you can in his exact words, can you tell us what his comment to you was?
A. It’s not like I’m going to go and sell out of my store, ha, ha, ha.

During cross-examination by defense counsel, Mr. Burrell did not provide any further details concerning how Mr. Darwish obtained the bottled water on his second visit to the fire station.

Our review of the record discloses the following pertinent facts. The water was distributed for free. The bottles were not marked to indicate that they were not intended for resale. Persons requesting relief supplies were not asked to sign an application form or to identify themselves to receive water. Although recipients of quantities of water greater than two cases were sometimes asked to explain their intended use of the water, Mr. Burrell did not direct any such inquiry to Mr. Dar-wish. Thus Mr. Darwish was not required to state his plans for the use of the water before he received it. In addition, the testimony about the timing of Mr. Dar-wish’s comment was vague. Mr. Burrell was not specific about when Mr. Darwish made the comment in relation to the receipt of the water. We do not know if Mr. Darwish made the comment before he received the water, while it was being loaded into his van, or just before he drove away with the cases of water already loaded. Most important, Mr. Burrell did not testify that Mr. Darwish obtained the water by representing to Mr. Burrell that he would not resell it. Mr. Burrell never said that he would have refused to give Mr. Darwish the water — or more than a normal distribution of two cases — absent the comment. Based on these facts, the State did not prove that Mr. Burrell was induced to part with the water in reliance on Mr. Dar-wish’s comment. Thus the State failed to prove an essential element of the offense of cheating by false pretenses.

Y. CONCLUSION

We do not condone the conduct of Mr. Darwish that is at issue in this case. Nevertheless, the State failed to carry its burden of proving that he was guilty of cheating by false pretenses. Accordingly, we reverse the judgment and sentence imposed on Mr. Darwish, and we remand this case to the trial court with directions that he be discharged.

Reversed and remanded with directions.

VILLANTI and LaROSE, JJ., Concur.

      . In the Peterson opinion, this court set forth the text'of the English statute. 192 So.2d at 295.

      . Section 817.01 was repealed in 1957. See ch. 57-1, § 24, Laws of Fla. See also Anglin v. Mayo, 88 So.2d 918, 920 (Fla.1956), where the court held that section 817.01 had been superseded by the passage of chapter 26912, Laws of Florida, 1951, cited as section 811.021, Florida Statutes. The crime of obtaining property by false pretenses has been merged into the larceny statute. See id. at 921; Rosengarten v. State, 171 So.2d 591, 594 (Fla. 2d DCA 1965).

      . We commend the trial court for its detailed twelve-page written verdict. The trial court’s thorough analysis of the facts and the law has facilitated this court's review of this case.


author: GRIFFIN, J.

text:
    Joyce EUSEPI, etc., et al., Appellant, v. MAGRUDER EYE INSTITUTE, et al., Appellee.
    No. 5D05-3182.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.

      Ricardo L. Carmona, of Ricardo L. Car-mona, P.A., Coral Gables, for Appellant.
    Vance R. Dawson, and Laura B. Floyd, of Rissman, Weisberg, Barrett, Hurt, Donahue McLain, P.A., Orlando, for Appellee.
   GRIFFIN, J.

Joyce Eusepi [“Eusepi”], individually and as personal representative of the estate of her husband, Amerigo [“Amerigo”], appeals the dismissal of her complaint under Florida Rule of Civil Procedure 1.260(1). We reverse.

On March 7, 2001, sixty-three-year-old Amerigo underwent eye surgery at Florida Hospital. The surgery was performed by a surgeon from the Magruder Eye Institute [“Magruder”]. Amerigo was discharged the day of the operation, but his right eye was swollen and painful by March 9, 2001. A telephone call made that day to the physician on call at Magruder was not returned. However, on March 10, 2001, Amerigo’s daughter called Magruder and spoke with Dr. Michael E. Pohlod, M.D. [“Dr. Pohlod”]. He assured her that her father’s condition was normal, and he could wait to be seen at his regularly scheduled appointment two days later. Amerigo appeared at his regularly scheduled appointment on Monday, March 12, 2001. There he was diagnosed with traumatic endopthalmitis of the eye, a condition which resulted in a permanent and near complete loss of vision.

On December 12, 2002, Amerigo filed a medical negligence suit against Magruder and Dr. Pohlod. However, Amerigo died of lung cancer on February 4, 2005, before the case could be tried.

On February 28, 2005, his widow, Joyce, filed a suggestion of death, and asked for entry of an order “allowing Plaintiff to amend the Complaint to modify the cause of action- to be brought as a survival action on behalf [sic] the Estate of Amerigo Eu-sepi by his wife, Joyce Eusepi, who will be appointed Personal Representative.” In addition, on March 4, 2005, Joyce filed a motion for substitution of parties and to amend her complaint. The motion explained in relevant part that:

Joyce Eusepi is or will be appointed Personal Representative of the Estate of her Husband, Amerigo Eusepi. Therefore, Plaintiff requests leave of Court to amend the Complaint to name Joyce Eusepi, as Personal Representative for the Estate of her husband, Amerigo Eu-sepi, and also to bring a claim on behalf of herself, individually, as a survivor of her husband, and also in the alternative, to bring a survival action pursuant to Florida Statutes.

Although her husband’s estate had not yet been opened for probate, the amended complaint identified Joyce as plaintiff both individually and on behalf of the estate, asserting that she had been or would be appointed personal representative. The complaint was filed on May 19, 2005, eighty days after the filing of the suggestion of death. On May 26, 2005, defendants stipulated to the granting of Joyce’s motion to substitute parties and to amend the complaint, and the trial court entered an order granting the motions. The order provided that “Plaintiffs First Amended Complaint shall be deemed filed as of the date of this Order.”

On June 28, 2005, the defendants moved to dismiss the complaint on the basis that the estate had not been opened within ninety days of the filing of the suggestion of death and Joyce had yet to be appointed personal representative. Defendants argued that dismissal was required by Florida Rule of Civil Procedure 1.260, which provides:

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for .substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

Id. (emphasis added).

Joyce filed an affidavit in opposition to the motion to dismiss, in which she stated that she had been married to her husband for nearly forty years; that she had been overwhelmed with grief after her husband’s death; that she had been staying with each of her three children following his death and was not timely receiving mail from her attorneys. She asserted that she had filed a petition for administration with all appropriate documentation on or about July 20, 2005, and asked that her delay in filing the petition be excused on the basis of “mistake, inadvertence, surprise or excusable neglect.”. Letters of administration were issued on August 1, 2005.

The trial court heard the motion to dismiss immediately before trial. Defendants argued at the hearing that it was undisputed that Joyce had failed to obtain an appointment as personal representative within the ninety-day period. Accordingly, they argued that the only issue before the court was whether Joyce was able to establish excusable neglect. They maintained that the grief she had experienced could not be used to establish excusable neglect because grief was inherent in most cases involving substitution due to the death of a party. Joyce argued that cásés should not be dismissed for technical reasons and she moved ore tenus at the hearing for an extension of time under Florida Rule of Civil Procedure 1.090, to gain additional time to comply with rule 1.260.

On August 15, 2005, the court granted the motion to dismiss. Joyce timely moved for rehearing, and argued that the court had erred because rule 1.260 does not require that an estate be opened within ninety days of the filing of a suggestion of death. She pointed out that all the rule required was that the motion to substitute be filed within ninety days. She asserted that she had complied with the rule by moving within the ninety-day period to amend the complaint and to substitute herself as the proper party. She noted further that the motion had been granted on May 26, 2005, before the ninety-day period expired. Alternatively, Joyce asked for relief from the ninety-day requirement under Florida Rules of Civil Procedure 1.540 and/or 1.090(b)(2). Joyce also filed an additional affidavit, in which she asserted additional facts in support of her argument of excusable neglect. The court denied Joyce’s motion for rehearing.

The crux of defendants’ argument seemingly is that Rule 1.260 implicitly requires the formal appointment of an appropriate representative on behalf of the estate within the ninety days because the case cannot proceed until a successor is appointed. We reject this position for several reasons, the most compelling of which is that the rule language is clear about what can authorize dismissal under the rule: failure to make the motion for substitution within ninety days. Here, the motion was filed within ninety days. Moreover, substitution was stipulated to and approved by order within the ninety days. Given.the procedural posture of this case, the appellee is not in a position to argue, and does not argue that appointment of the personal representative is a prerequisite to the filing of the motion for substitution or that it is required prior to entry of the order of substitution.

Rule 1.260 is in its present form precisely so that the process of substitution of a new party for a party who dies while litigation is pending will not cause otherwise meritorious actions to be lost. New Hampshire Ins. Co. v. Kimbrell, 343 So.2d 107 (Fla. 1st DCA 1977). The rule is supposed to dispel rigidity, create flexibility and be given liberal effect. Id. Under the former version of the rule, a case had to be dismissed if no substitution were made within two years from the date of the party’s death, causing claims to be lost where one or more parties were not aware of the death. Under the procedure revised in 1966, the time for moving to substitute is triggered by the giving of notice of the fact of death, called a “suggestion of death.” Why the rule specifies only that the motion be filed within ninety days is not known, but it does appear that the ninety-day period referenced in the rule has served its purpose once the motion is filed. We note that some federal courts construing Federal Rule of Civil Procedure 25, the counterpart to Rule 1.260, have said that where the estate is not in existence at the time the court considers the motion, the court should not enter an order granting the motion. See Gronowicz v. Leonard, 109 F.R.D. 624 (S.D.N.Y.1986). This seems right, but it is not the issue raised here.

It is also important to keep in mind that the rule is designed to cover all substitutions, not just cases like this where the deceased was an individual plaintiff whose personal representative was likely to be his widow. It is not uncommon for the deceased to be someone whose successor in interest is not apparent or easily contacted. Nor is it uncommon for the deceased to be a defendant whose relations and relationships are unknown'to a plaintiff trying to preserve his claim against family members who have no interest in facilitating the litigation. See Hardy v. Kaszyeki & Sons Contractors, Inc., 842 F.Supp. 713 (S.D.N.Y.1993). We have already said in Martin v. Hacsi, 909 So.2d 935, 937 (Fla. 5th DCA 2005), that the absence of a known personal representative is no excuse for not filing a timely motion to substitute.

Even if we were to interpret the rule as the defendants urge, we would still question the trial court’s refusal to allow an extension of time to open the estate. The defendants urge that because the fact of death is inherent in any Rule 1.260 proceeding, the party’s death cannot be the excuse for failing to meet the time requirements of the rule. But rather than discount the effect of the death of a party on those who might succeed to his rights or be appointed representative of his estate, a court should exercise its discretion in light of the purposes of Rule 1.260. As set forth above, those purposes are to eliminate traps and procedural bars and to maximize flexibility, precisely because the death of a party is involved. The emotional as well as the practical effects of death on a survivor should be considered. Here, the short delay in setting up the estate and the reasons given for the delay fall well within the liberal purpose of the rule.

REVERSED and REMANDED.

PALMER, J., SHARP, W., Senior Judge, concur.

      . The authorities principally relied on by ap-pellees involve cases where there was no timely filed motion to substitute. See Vera v. Adeland, 881 So.2d 707, 710 (Fla. 3d DCA 2004).

      . In addition to denying the substitution mo- . tion, the trial court has a panoply of other ease management devices at its disposal to secure the appointment of the personal representative in order to move the case to resolution. Once the motion for substitution is timely filed, however, dismissal is not available under the ninety-day provision of Rule 1.260'.


author: EVANDER, J.

text:
    David Earl HUTCHINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3504.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.

      David Fussell, of Fussell & Associates, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Appellant was on probation as a result of being convicted in 1995 on two counts of attempted sexual battery. As a result of his convictions, he was designated a sexual predator. In November 2004, appellant was charged with violating his probation. After an evidentiary hearing, the trial court issued a written order finding appellant had violated three conditions of his probation and sentencing him to 170 months in the Department of Corrections followed by 10 years of probation. We affirm in part and reverse in part.

In its order, the trial court found appellant had willfully and substantially violated conditions (9), (gg.3a.), and (5) of his probation order. We write primarily to discuss appellant’s challenge to the court’s finding as to condition (9). This condition provided:

You will promptly and truthfully answer all inquiries directed to you by the Court or any Probation or Community Control Officer, and allow your Officer to visit in your home, at your employment site, or elsewhere, and you will comply with all instructions your Officer may give you.

Appellant had been instructed by his probation officer not to sleep overnight at any address other than his approved address without the probation officer’s permission. The record supports the court’s finding that appellant did not comply with this instruction.

Appellant contends, however, that the probation officer exceeded his authority by giving this instruction. In support of his argument, appellant cites Ackerman v. State, 835 So.2d 354 (Fla. 5th DCA 2003). In Ackerman, this court held that a probation officer was without authority to order a probationer to have no contact with playgrounds or other places where children congregate, where the probation order only provided that the probationer could not reside within 1,000 feet of, or work at, a school, day care center, park, playground or any other place where children regularly congregate.

Ackerman is distinguishable. The basis of this court’s holding in Ackerman was that the probation officer’s instruction had taken the character of a judicial act by essentially imposing a new condition of probation. Id. at 356-357. The probation officer’s instruction was not limited to merely requesting information from the probationer to better enable the probation officer to supervise the probationer.

By contrast, the probation officer’s instruction in this ease did not purport to be a blanket prohibition of appellant spending overnights at any residence other than his own. Thus, the probation officer’s instruction did not impose a new condition of the appellant’s probation and did not “take on the character of an essentially judicial act.” Larson v. State, 572 So.2d 1368, 1371 (Fla.1991).

Rather, it was a reasonable instruction to assist the probation officer in his supervision of appellant. Such information would enable the probation officer to determine whether a minor child resided at the residence at which appellant proposed to spend the night and, if so, to ensure that adequate measures were taken to prevent the probationer from having unsupervised contact with the minor child. A probation officer may give a probationer directions which are reasonably intended to assist the officer in ensuring that the probationer complies with the conditions of probation, provided that such directions are not inconsistent with the probation order. Parissay v. State, 687 So.2d 30 (Fla. 5th DCA 1997).

The court’s finding that appellant violated (gg.3a.) by having unsupervised contact with a child under the age of 16 (other than his own children) is also supported by the record. However, we remand this case to the trial court to strike its finding that defendant violated condition (5).

Our review of the transcript indicates that notwithstanding the reference to condition (5) in his written order, the trial judge did not intend to find defendant guilty of violating condition (5). Indeed, the record reflects that the judge felt it was unnecessary for the state to proceed with any evidence related to an alleged violation of condition (5). Therefore, the trial court’s order is affirmed in all respects except as to its finding that appellant had violated condition (5). Appellant need not be present for disposition, on remand. See Stephens v. State, 756 So.2d 200 (Fla. 2d DCA 2000); Dunlap v. State, 405 So.2d 796 (Fla. 2d DCA 1981).

AFFIRMED in part; REVERSED in part; REMANDED.

GRIFFIN and SAWAYA, JJ., concur.


text:
    G.L., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4428.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.

      James S. Purdy, Public Defender, and Caleb A. Bendix, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

G.L. appeals his adjudication of delinquency and sentence, arguing that the trial court abused its discretion by disregarding the recommendation by the Department of Juvenile Justice (“DJJ”) without stating its reasons. We agree and reverse.

G.L. was found with three bags of cannabis that he admittedly intended to sell. The State filed a petition for delinquency, alleging that G.L. possessed cannabis with intent to sell within 1,000 feet of a school. The court accepted G.L.’s guilty plea to the lesser-included offense of possession of marijuana under 20 grams. The DJJ issued a pre-disposition report (“PDR”) that restated the facts as alleged in the charging affidavit. The PDR related G.L.’s previous battery offense for which no sanctions had been imposed, good relationship with his mother, school attendance, employment, and cooperation during the arrest and intake conference. Ultimately, the DJJ concluded that G.L. did not need a strict environment and recommended probation and that adjudication be withheld.

At the 29 August 2005 disposition hearing, G.L.’s counsel stated that his mother had control of him and that G.L. was working and attending school. The court reiterated that G.L. had intended to sell drugs:

The recommendation, of course, is probation. I decline to follow that recommendation. Let’s get this straight. You cannot sell drugs in school and simply get probation. You get locked up, you go to reform school.
So I’m going to commit him to a Level 6 program ... adjudicate him guilty, commit him to the [DJJ] until his 19th birthday.

Counsel objected, pointing to G.L.’s lack of prior offenses and cooperation. The court responded that the community deserved a school where drugs were not sold. The court ordered commitment at restrictiveness level six, but reduced the commitment term to one year because the charge was a first-degree misdemeanor. That day, the court vacated the order and ordered another disposition hearing because it suspected the DJJ did not look at the facts in the case before making its recommendation.

The DJJ’s second PDR repeated the same facts, factors, and probation recommendation. At the November 2005 disposition hearing, the court noted that G.L. had never been on probation. Nevertheless, it again rejected the recommendation:

[I]f he was selling drugs at school, he’s getting locked up. I don’t care how many points he scores. I don’t care what the recommendation is....
He was selling drugs at school. He took marijuana to school to sell. That’s it. That’s all I need to know.

Ultimately, the court again sentenced G.L. to restrictiveness level six for one year. G.L. appealed, and we reverse.

The trial court may disregard the DJJ’s recommendations under section 985.23(3)(c), Florida Statutes (2005), but must state its reasons for doing so and make reference to the characteristics of the restrictiveness level and the needs of the child. T.N. v. State, 929 So.2d 1133, 1137 (Fla. 5th DCA 2006); C.M.L. v. State, 895 So.2d 495, 496 (Fla. 5th DCA 2005); S.S.M. v. State, 814 So.2d 1234, 1234-35 (Fla. 5th DCA 2002). The . court cannot depart from the DJJ’s recommendation merely because it disagrees with it. C.M.L., 895 So.2d at 496; A.G. v. State, 737 So.2d 1244, 1247 (Fla. 5th DCA 1999). If the court fails to make specific findings to support its determination and disregards the DJJ’s recommendations without sufficient reasons, or there is no record evidence that the court considered the dis-positional report, this court must reverse and remand. A.G., 737 So.2d at 1248.

The court’s desire to send a message to the community and the fact that it is “fed up with [drug] peddlers” do not excuse the court from stating its reasons, supported by a preponderance of the evidence, for departing from the DJJ’s recommendation. A.G., 737 So.2d at 1247. Similarly, despite the seriousness of the charge, “the ‘nature of the charge’ is not a sufficient reason to depart from the [DJJ’s] recommendation.” A.J.V. v. State, 842 So.2d 1027, 1029 (Fla. 2d DCA 2003).

The court initially speculated that the PDR showed that the DJJ was unaware of the facts underlying the case. Belatedly, the State argued on appeal that the departure was justified by the PDR, which related factors such as G.L.’s admission of marijuana use, anger management issues, and unexcused absences before the PDR was prepared. Neither argument supports the court’s decision to disregard the recommendation. Both PDRs made clear that DJJ was well aware of G.L.’s history when it recommended probation. In A.S. v. State, 934 So.2d 583 (Fla. 1st DCA 2006), the First District reversed the trial court’s commitment order because the trial court ignored the recommendation of DJJ. The trial court did not think that DJJ was aware of the child’s former record. The appellate court held that the PDR made clear the DJJ was aware of the child’s former record, therefore, the court needed to support it decision to depart by a preponderance of evidence. See also A.C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999) (noting that the DJJ’s report “described and weighed [the child’s] entire criminal activities in great detail,” which undermined the court’s stated primary reason for departing from the DJJ’s recommendation).

Here, the court considered the nature of the crime, but made no reference to the level six restrictiveness or how such a level served G.L.’s needs. See T.N., 929 So.2d at 1137; S.S.M., 814 So.2d at 1235. In P.R. v. State, 782 So.2d 911 (Fla. 5th DCA 2001), the trial court rejected the DJJ’s recommendation of community control and imposed level six residential commitment. The trial court had held that, in light of P.R.’s criminal history, less restrictive measures had not gotten P.R.’s attention. P.R., 782 So.2d at 911. We reversed because the trial court did not “reference the characteristics of the restrictiveness level vis-a-vis the needs of the child.” Id. at 913. Moreover, the trial court’s stated reasons “fail[ed] to show that the court considered any of the statutory factors set forth in section 985.23(2)(a) through (g).” Id.

Here, the record reflects even less justification for the trial court’s departure from the DJJ’s recommendation. The trial court did not merely fail to consider any statutory factors, the characteristics of the restrictiveness level, or G.L.’s needs; it explicitly refused to consider them: “He was selling drugs at school. He took marijuana to school to sell. That’s it. That’s all I need to know.” This conclusion constituted an abuse of discretion.

Accordingly, we REVERSE the trial court’s order and REMAND for sentencing in accordance with the DJJ’s recommendation or a sentence that is justified by the record with stated reasons. See, e.g., S.S.M., 814 So.2d at 1235.

THOMPSON, PALMER and LAWSON, JJ., concur.

      . § 893.13(l)(c)2„ Fla. Stat (2004).

      . § 893.13(6)(b), Fla. Stat. (2004).


author: MONACO, J.

text:
    Carlos R. RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3930.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

Carlos R. Ramos seeks review of the order of the trial court denying his motion to suppress evidence; more particularly, a quantity of cocaine that was found in the vehicle he was driving. Because there was competent, substantial evidence to support the trial court’s denial of the motion to suppress, we affirm the judgment and sentence for possession of cocaine.

While Mr. Ramos agrees that the traffic stop that resulted in the search of the vehicle was lawful, and that he did, in fact, consent to the search, he asserts that his consent was not freely and voluntarily given. After hearing the testimony of the arresting officer and of Mr. Ramos, however, the trial court found that the consent at issue was voluntary. Mr. Ramos then pled nolo contendere to possession of cocaine, while properly preserving his right to appeal this issue.

A trial court’s ruling on a motion to suppress comes to an appellate court clothed with a presumption of correctness. A reviewing court must, therefore, interpret the evidence and all reasonable inferences derived from it in the manner most favorable to sustaining the trial court’s ruling. See Doorbal v. State, 837 So.2d 940, 952 (Fla.), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003); Pagan v. State, 830 So.2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); San Martin v. State, 717 So.2d 462, 468 (Fla.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1468, 143 L.Ed.2d 553 (1999). The standard of review to be applied to factual findings of the trial court is whether competent, substantial evidence supports the findings; however, the trial court’s application of the law to the facts is reviewed de novo. See Utu v. State, 929 So.2d 718 (Fla. 5th DCA 2006); Houston v. State, 925 So.2d 404 (Fla. 5th DCA 2006), review denied, 935 So.2d 1220 (Fla.2006); Dewberry v. State, 905 So.2d 963 (Fla. 5th DCA 2005); Lecorn v. State, 832 So.2d 818 (Fla. 5th DCA 2002); Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002); State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001); Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999); see also McMaster v. State, 780 So.2d 1026 (Fla. 5th DCA 2001).

Here, the trial court believed the arresting officer’s version of the facts. As there was competent, substantial evidence supporting the court’s findings, and as we find no misapplication of the law to the facts, we affirm.

AFFIRMED.

PLEUS, C.J. and ORFINGER, J., concur.


text:
    Daniel Ray ERICKSON, Appellant, v. Tommy Gail BREEDLOVE, et al., Appellee.
    No. 5D05-3967.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.

      Daniel R. Erickson, Bowling Green, pro se.
    John M. Green, Jr., of Green & Bradshaw, P.A., Ocala, and Loren E. Levy, of The Levy Law Firm, Tallahassee, for Ap-pellee.
   EVANDER, J.

Appellant, a pro se plaintiff below, filed a rambling thirty-eight page complaint against various government agencies and government employees purporting to allege causes of action for false arrest, negligence, perjury, obstruction of justice, malpractice, invasion of privacy, malicious prosecution, and conspiracy. Plaintiffs purported causes of action appear to be related to his claim that he was wrongly arrested and prosecuted for failure to register as a sexual offender. Not surprisingly, the various defendants filed motions to dismiss the complaint. A hearing was held on the motions on March 31, 2004. Pursuant to an order dated April 23, 2004, the court granted the motions to dismiss, but gave plaintiff twenty days in which to file an amended complaint. Between the date of the hearing and the issuance of the written order, plaintiff filed a motion for reconsideration. Nine of the defendants filed a response to the motion for reconsideration on May 17, 2004. The next record activity in the case occurred over sixteen months later when several of the defendants filed a motion to dismiss for failure to prosecute. After a hearing, the trial court granted the motion to dismiss for failure to prosecute. Our analysis is governed by the application of Florida Rule of Civil Procedure 1.420(e) (2005).

In Wilson v. Salamon, 923 So.2d 363 (Fla.2005), the Florida Supreme Court explained that a determination of whether an action should be dismissed for failure to prosecute under rule 1.420(e) involves a two-part test. The first step is to determine whether any record activity occurred in the past year. If any record activity exists, regardless of whether “passive” or not, the action is not subject to dismissal for lack of prosecution. If there has not been any record activity, the second step is to determine whether the plaintiff has established good cause why the action should remain pending.

In the present case, no record activity occurred for over a year. Therefore, the issue is whether the existence of the motion for reconsideration constituted “good cause” so as to prevent a dismissal for failure to prosecute. We affirm the trial court’s decision that plaintiff did not meet his burden of establishing good cause. The record is devoid of any evidence that the trial court was even made aware of the existence of the motion for reconsideration. Trial judges should not be expected to unilaterally review the hundreds of files assigned to them in search of motions which have been filed but have not been set for hearing or otherwise brought to the court’s attention. Litigants have an affirmative obligation to move their cases to resolution. See Sewell Masonry Co. v. DCC Const., Inc., 862 So.2d 893, 899 (Fla. 5th DGA 2003), rev. dismissed, 870 So.2d 823 (Fla.2004); Patton v. Kera Technology, Inc., 895 So.2d 1175 (Fla. 5th DCA), rev. granted, 912 So.2d 318 (Fla.2005).

We certify conflict with Dye v. Security Pacific Financial Services, Inc., 828 So.2d 1089 (Fla. 1st DCA 2002).

AFFIRMED; Conflict CERTIFIED.

GRIFFIN and SAWAYA, JJ„ concur.

      . This rule was amended effective January 1, 2006. Because all of the relevant events at the trial court level occurred prior to the effective date of the amendment, this case is governed by the prior rule. See Cabrera v. Pazos, Larrinaga & Taylor, P.A., 922 So.2d 422, 424 n. 2 (Fla. 2d DCA 2006).


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. K.H. the Mother and A.A. the Father, Appellees.
    No. 5D05-4304.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.
    Charles D. Peters, Orlando, for Appellant.

      Sean F. Bogle of Law Offices of Sean F. Bogle, P.A., Altamonte Springs, for Appel-lee K.H.
    J. Manuel Acevedo, Sanford, for Appel-lee A.A.
   PER CURIAM.

In this dependency action, Appellant challenges the lower court’s summary dismissal of the petition prior to the conclusion of the adjudicatory hearing. We reverse.

During an adjudicatory hearing on Appellant’s petition for dependency, the trial court, sua sponte, summarily dismissed the petition after Appellant’s first witness had testified but before Appellant had concluded presenting evidence in support of the petition. In so doing, the lower court violated Appellant’s right to due process. Therefore, the order is reversed and this matter is remanded with instructions that the court conduct a new hearing on Appellant’s petition.

REVERSED and REMANDED.

PALMER, ORFINGER and TORPY, JJ., concur.


text:
    Alexis BONILLA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-897.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.
    Alexis Bonilla, Clermont, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Alexis Bonilla appeals the dismissal of his petition for writ of habeas corpus. We affirm. Mr. Bonilla cannot attack the legality of the sentence imposed by the Circuit Court of Volusia County in the courts of Lake County where he is incarcerated. See Tooley v. State, 902 So.2d 342, 343 (Fla. 5th DCA 2005) (holding that a circuit court has no jurisdiction to review the legality of a sentence imposed in another circuit).

AFFIRMED.

PLEUS, C.J., ORFINGER and MONACO, JJ., concur.