text:
    Eugene LUCHERINI, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2970.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Rehearing Denied July 26, 2006.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Eugene Lucherini, appeals his conviction for first degree murder with a firearm and armed burglary of a dwelling with assault or battery. Because the trial court abused its discretion in prohibiting Lucherini from presenting evidence of his prescription medications in support of an involuntary intoxication defense under section 775.051, Florida Statutes (2000), we reverse his conviction and sentence.

At trial, Lucherini sought to introduce the testimony of three mental health experts for the purpose of establishing that he was intoxicated at the time of the offense as a result of taking prescription medications for his depression, and therefore, was unable to form the intent to commit a specific intent crime. Lucherini argued that section 775.051, while eliminating the defense of voluntary intoxication, provides an exception for lawful prescription medication. Section 775.051 provides that:

Voluntary intoxication resulting from the consumption, injection, or other use of alcohol or other controlled substance as described in chapter 893 is not a defense to any offense prescribed by law. Evidence of a defendant’s voluntary intoxication is not admissible to show that the defendant lacked the specific intent to commit an offense and is not admissible to show that the defendant was insane at the time of the offense, except when the consumption, injection, or use of a controlled substance under chapter 893 was pursuant to a lawful prescription issued to the defendant by a practitioner as defined in s. 893.02.

(Emphasis added). Lucherini proffered the testimony of Dr. Samuels, his psychiatrist and treating physician, who testified that he diagnosed Lucherini with major depression and prescribed two antidepressants, Remerol and Clonopin. Dr. Samu-els also testified to the dosages prescribed for each medication and the dates on which he prescribed the medications. A second psychiatrist, Dr. Seligson, agreed that Lu-cherini suffered from major depression and opined that, based on his diagnosis, Lucherini did not have the ability to form the intent to commit a specific intent crime, such as premeditated murder or burglary.

The trial court, however, ruled that it would not allow the defense to present any testimony about the medications prescribed, finding that the medications related to the issue of intent. The court further ruled that it would not allow the defense to present any testimony concerning whether the medications were properly prescribed, again reasoning that the medications related to the issue of intent. The court also reasoned that because Lucherini withdrew his intent to rely on an insanity defense, such testimony was irrelevant.

On appeal, Lucherini argues that the trial court’s refusal to allow expert testimony regarding the defense of voluntary intoxication was an abuse of discretion. However, while he claims that the trial court erred in refusing to allow him to present evidence in support of a voluntary intoxication defense, in essence, Lucherini intended to raise an involuntary intoxication defense.

After reviewing the record on appeal, we conclude that it was error for the court to exclude evidence of Lucherini’s lawful prescription medications and depression. According to the plain language of section 775.051, evidence of a defendant’s consumption, injection, or use of a controlled substance pursuant to a lawful prescription is admissible to show that the defendant lacked the specific intent to commit an offense or to show that the defendant was insane at the time of the offense.

We find support for our conclusion in Brancaccio v. State, 698 So.2d 597 (Fla. 4th DCA 1997). In Brancaccio, the defendant’s defense at trial was that the medication he was taking, which was prescribed to him by his physician, prevented him from forming the intent necessary to commit a specific intent crime. The defendant presented the testimony of several psychiatrists who concluded that he did not have the ability to form the intent to commit first degree murder based on his mental deficiencies and involuntary intoxication by Zoloft. The trial court refused to instruct the jury on his theory of defense, involuntary intoxication. However, this Court reversed and remanded for a new trial, finding that the defendant was entitled to a standard jury instruction on involuntary intoxication. In reaching our decision, we cited an annotation on the defense of involuntary intoxication, which provided, in part:

Because a patient is entitled to assume that an intoxicating dose would not be prescribed or administered by a physician, where intoxication results from medicine which has been prescribed (and taken as prescribed) or administered by a physician, such intoxication is generally considered involuntary.

Id. at 599 (quoting Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195 (1976)).

Similarly, in Cobb v. State, 884 So.2d 437, 438-39 (Fla. 1st DCA 2004), the first district, interpreting section 775.051, stated:

The legislature expressly limited the use of an intoxication defense to those circumstances where the defendant’s lack of specific intent or insanity is attributable to the use of a prescription medicine ‘pursuant to a lawful prescription.’ In this instance, the statutory language is ‘clear and unambiguous,’ and must therefore ‘be given its plain and ordinary meaning.’

In Cobb, the defendant sought to introduce the testimony of an expert physician to establish that he was involuntarily intoxicated at the time of the offense. Upon proffer by the defense, the physician opined that the defendant’s behavior resulted from the use of various prescription and over-the-counter medications combined with the effects of an organic brain disorder. However, the physician also explained that the defendant had exceeded the prescribed dosages of Xanax by four or five times and Paxil by three to four times in the weeks leading up to the shooting. As a result, the court concluded that the defendant’s knowing and excessive use of prescription medicine foreclosed any claim that she had taken those medicines “pursuant to a lawful prescription,” and affirmed the trial court’s decision to exclude the physician’s testimony, finding that admission of the testimony was not compelled by section 775.051.

Therefore, according to Brancaccio and Cobb, had Lucherini proffered to the trial court that his intoxication resulted from medicine lawfully prescribed and taken as prescribed, he was entitled to present to the jury evidence of the medications he was taking, that he was taking them as prescribed, how these medications interacted with each other, and their effect with respect to the issue of specific intent in support of an involuntary intoxication defense under section 775.051. At trial, Lu-cherini proffered the testimony of his treating physician, Dr. Samuels, who prescribed two anti-depressants, Clonopin and Remerol, in May 2000, and Dr. Seligson, who testified that Lucherini suffered from major depression and did not have the ability to form the intent to commit a specific intent crime. While we recognize that Lucherini did not establish that he was taking the medications as prescribed on the date of the alleged offense on August 2, 2000, as required in Brancaceio and Cobb, it appears from the record provided that the trial court did not give him the opportunity to completely proffer all of the evidence concerning his prescribed medications. See In re K.C., 582 So.2d 741, 742 n. 1 (Fla. 4th DCA 1991) (“Generally, refusal of the trial court to allow a proffer prevents a determination of the propriety of the trial court’s ruling and is reversible error.”).

Furthermore, because involuntary intoxication in this case would be an affirmative defense, Lucherini has the burden to establish the defense and come forward with evidence that he was taking the medication as prescribed and pursuant to a lawful prescription. Cf. Dufour v. State, 905 So.2d 42, 52 (Fla.2005). If, on remand, Lucherini can show that the medications were properly prescribed and taken as prescribed, we conclude that he should be entitled to present to the jury evidence of his prescription medications and their effect on his mental health in support of an involuntary intoxication defense pursuant to section 775.051.

Accordingly, we reverse Lucherini’s conviction and remand to the trial court for a new trial.

Reversed and Remanded for New Trial.

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

      . In a final staff analysis prepared by the Committee on Crime and Punishment of the House of Representatives, the Committee addressed the exception for prescription medication in section 775.051, stating:
      The segment of the committee substitute which provides that a defendant may submit evidence of his intoxication when the intoxication occurred as a result of the defendant taking a controlled substance prescribed by a practitioner is part of the involuntary intoxication defense which already exists in Florida. The principle behind this defense is that a person would not expect that they would become intoxicated by taking a substance which has been prescribed to them, if they take the substance according to the prescription.
      Fla. H.R. Comm, on Crime & Pun. HB 421 and HB 485 (1999) Staff Analysis 7 (final May 14, 1999) (on file with comm.).


source: Caselaw Access Project

author: MAY, J.

license: Public Domain

text:
    David MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2115.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Rehearing Denied July 25, 2006.

      Carey Haughwout, Public Defender, and Gregory J. Morse, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for first degree arson. He argues the court erred in failing to instruct the jury on the lesser-included offenses of second degree arson, attempted second degree arson, and criminal mischief. We agree in part and reverse.

The defendant and his mother lived in a mobile home park. The defendant’s mother supported him financially, and had either given him or was about to give him the mobile home. The defendant was a heavy smoker and drinker.

On the evening of July 5, 2003, the defendant had a late meal, some beer, and conversation at a neighbor’s home. While there, the defendant twice told the neighbor “he was going to torch the place.” The neighbor awoke around two o’clock to see flames engulfing the defendant’s mobile home. When she evacuated her home, the neighbor saw the defendant sitting in a chair at the end of his driveway.

Another neighbor also awoke to see the flames. Each time the fire exploded, she saw the defendant grin and nod his head affirmatively. She approached the defendant and asked him if he set the fire. The defendant responded, “H — , yes. I told you I was going to.” One of the responding officers overheard this discussion.

The Margate police also observed the defendant sitting in the chair approximately ten feet from the blaze with one beer in his hand and another six-pack nearby. When the officer approached, the defendant stated: “It’s my house. I’m watching it. Yeah, I did it.” He was later heard telling one of the fire marshals that he did not know how the fire started.

The fire marshal opined the fire originated on the patio near a stuffed chair. The fire did not appear to have been caused by electrical wiring or by a sloppy smoker. He classified the fire as arson without the use of an accelerant. The State charged the defendant with first degree arson in violation of section 806.01(l)(a), Florida Statutes (2003).

At the charge conference, the defendant requested jury instructions on second degree arson, attempted second degree arson, and criminal mischief. The discussion at the charge conference focused on the definition of “dwelling,” whether second degree arson was a lesser included offense of first degree arson, and whether it was lawful to give the criminal mischief instruction when the defendant adamantly maintained the mobile home belonged to him. The court denied the requested instructions.

Slightly less than three hours after deliberations began, the jury was deadlocked. After being instructed by the court to continue deliberating, the jury found the defendant guilty of first degree arson. Once the jury had been polled, the jury foreman told the court the following: “Your Honor, if it please the Court, not being educated in proper procedure, we, the jury, would also like to respectfully plead for leniency in your sentencing of the defendant. On this we are all unanimous.”

The next day, the jury foreman contacted defense counsel to advise that some of the jurors may not have been truthful in their disclosures during voir dire. He told defense counsel the jury had a high degree of sympathy for the defendant because no one had been physically injured and no one else’s property damaged. The foreman indicated the guilty verdict had been reached after the jurors agreed to make a unanimous plea for leniency in exchange for a guilty vote from the single hold-out juror.

The defendant moved for leave to interview the jurors and for a new trial. The court denied both motions. The court sentenced the defendant to ten years imprisonment followed by ten years probation with credit for 320 days.

The defendant argues the trial court erred when it denied his request for jury instructions on second degree arson, attempted second degree arson, and criminal mischief as permissive lesser-included offenses. The State responds that the allegations in the Information and the evidence did not support the requested jury instructions. As to the instruction on second degree arson, the State argues the charge is mutually exclusive of the charge of first degree arson because it is a catchall for whatever fire falls outside of a first degree arson charge. As to the attempt instruction, the State argues that because the fire was a completed act, an instruction on attempt was improper. As to the criminal mischief instruction, the State argues the defendant was not entitled to the instruction because he insisted the mobile home belonged to him and not to another.

Rule 3.510 of the Florida Rules of Criminal Procedure provides:

On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

Necessarily lesser-included, category one, offenses are those “necessarily included in the offense charged, which will include some lesser degrees of offenses.” In re Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 596 (Fla.1981). Permissive lesser-included, category two, offenses are those “which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.” Id. The schedule of lesser included offenses is designed to be a complete, authoritative compilation that is presumed to be correct and upon which a trial court can confidently rely. Id. at 597; Ray v. State, 403 So.2d 956, 961 n. 7 (Fla.1981). It is reversible error for a trial court to deny a requested instruction on the next lesser-included offense of the one charged, even if it is category two, if the charging instrument and the evidence admitted would support a conviction on the next lesser offense. State v. Abreau, 363 So.2d 1063 (Fla.1978); State v. Daophin, 533 So.2d 761 (Fla.1988); Boland v. State, 893 So.2d 683, 686 (Fla. 2d DCA 2005).

The State “charge[d] that David Moore on the 6th day of July, A.D.2003, ..., did willfully and unlawfully, by fire or explosion, damage or cause to be damaged a dwelling, located at ..., contrary to F.S. 806.01(l)(a).” The evidence consistently established the mobile home was used as a residence and that the fire was a completed act. The evidence, however, conflicted on who owned the mobile home.

In Higgins v. State, 565 So.2d 698 (Fla.1990), the Supreme Court of Florida held that second degree arson is not a necessarily lesser-included offense of first degree arson. In fact, based upon Higgins, the supreme court amended the schedule to move second degree arson from a category one to a category two, permissive lesser-included, offense. Id. at 700 n. 2. That schedule also listed criminal mischief (value from $200-$l,000) as a necessarily-lesser included offense. Standard Jury Instructions — Criminal Cases No. 92-1, 603 So.2d 1175, 1256 (Fla.1992).

In 1998, our supreme court again amended the schedule. This time the criminal mischief charge was moved from a category one to a category two offense. Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 130 (Fla.1998). This left no necessarily lesser-included, category one, offenses for first degree arson.

The primary difference between first and second degree arson is the issue of occupancy. First degree arson applies to dwellings, institutions during normal hours of occupancy, and structures that the defendant either knew or had reasonable grounds to believe were occupied. Second degree arson applies to all other structures.

Here, the evidence established, and no one disputed, the mobile home was used as a dwelling. While a structure is not always a dwelling, a dwelling is always a structure within the broad definition of the term “structure” found in the arson statute, section 806.01(3), Fla. Stat. (2002). Therefore the charging document alleged facts sufficient to establish second degree arson. And, the evidence, while undisput-edly establishing the structure was a dwelling, necessarily supported the second degree arson charge.

As our supreme court noted: “[t]he fact that the evidence was overwhelming that the [defendant committed the crime charged] does not preclude giving the [permissive lesser-included] instruction upon request.” Amado v. State, 585 So.2d 282, 283 (Fla.1991); accord Wimberly v. State, 697 So.2d 1272, 1273 (Fla. 4th DCA 1997). This is because Florida adheres to the jury’s right to exercise its “pardon power.” Amado, 585 So.2d at 283. Because second degree arson is a permissive lesser-included offense, and both the charging document and the evidence supported a finding that the mobile home was a nonresidential, unoccupied structure, the court erred in denying the requested instruction.

The court correctly refused to instruct the jury on attempted second degree arson. The attempt instruction cannot be given when the evidence only supports a completed crime. See In re Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981).

And lastly, the trial court correctly denied the defendant’s request for an instruction on criminal mischief. While criminal mischief is also a permissive lesser-included offense, it applies to damage done only to the property of another. See § 806.13, Fla. Stat. (2002). The evidence conflicted on who owned the mobile home. The trial court offered to give the instruction as long as it reflected damage done to the property of another, but the defendant insisted the instruction reflect the property belonged to him. Because the crime of criminal mischief does not apply to someone damaging their own property, the defendant’s requested instruction did not accurately reflect the law. Thus, the trial court properly refused to give the requested instruction.

Reversed and Remanded for a new trial.

STONE and GROSS, JJ., concur.

      . We note that second degree arson is still listed as a necessarily lesser-included offense of first degree arson in at least one schedule. Fla. Std. Jury Instr. (Crim.) 12.1, at 246 (The Florida Bar ed., 5th ed.2005).

      . This is clearly a case in which the jury demonstrated an interest in pardoning the defendant by its request for leniency made following its verdict.


author: SHEPHERD, J.

text:
    Juan DIAZ-GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2137.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.

      Lisa H. Colon, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and SHEPHERD, JJ.
   SHEPHERD, J.

Defendant, Juan Diaz-Gonzalez, appeals his conviction and sentence based on a December 25, 2002 incident during which he shot a firearm at his ex-wife, as well as a conviction for giving a false name to a police officer when he was finally apprehended a few months later. We affirm the jury verdict on the counts arising out of the shooting incident, but reverse the conviction arising out of his giving a false name based upon a proper confession of error by the State.

Defendant was charged with one count of attempted first-degree murder in violation of sections 782.04(1), 777.04(1), and 775.087 of the Florida Statutes (2002), one count of violation of an injunction against domestic violence in violation of section 741.31 of the Florida Statutes (2002), and one count of obstruction by disguise in violation of section 843.03 of the Florida Statutes (2002). After a two-day jury trial, defendant was found guilty of aggravated assault with a firearm discharge as a lesser included offense to attempted first-degree murder, violation of the injunction, and obstruction by disguise.

Defendant first argues the trial court erred by permitting his conviction for aggravated battery to stand where the amended information alleged only attempted first-degree murder. We do not reach this issue because defense counsel failed to raise it at trial. Ray v. State, 403 So.2d 956, 961 (Fla.1981)(“[I]t is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.”); Chambers v. State, 880 So.2d 696, 699 (Fla. 2d DCA 2004). The general objection made by defense counsel to instructing the jury on the lesser included offense on the ground that it was insupportable in the evidence is insufficient. Tolbert v. State, 679 So.2d 816, 818 (Fla. 4th DCA 1996); Bertolotti v. Dugger, 514 So.2d 1095, 1096 (Fla.1987)(“[T]o preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court.”).

Defendant additionally argues the trial court erroneously permitted the testimony of a police investigator concerning his flight. The officer testified that before he apprehended defendant, he sought out defendant at the residence of another ex-spouse where the officer had reason to believe defendant might be found, and also made ten attempts to reach defendant at defendant’s place of business after the shooting incident. The officer testified he identified himself each time he visited defendant’s place of business and let it be known that he wanted to speak to defendant about “something that happened on Christmas Day of 2002.” On at least one occasion, he passed this message to Anna Arias, a person who defendant claimed at trial was an alibi to the allegations. Based upon these facts, a reasonable juror could infer defendant knew of the officer’s investigation. See Brown v. State, 756 So.2d 230, 231-32 (Fla. 3d DCA 2000)(permitting evidence of flight, concealment, or resistance where “the victims knew [the defendant] by name and the police had been to his house attempting to locate him during the fourteen days between the robbery and [the defendant’s] arrest.”). There was no abuse of discretion in the admission of this testimony. Thomas v. State, 748 So.2d 970, 982 (Fla.1999)(“[T]he admission of evidence is within the trial court’s discretion and will not be reversed unless [the] defendant demonstrates an abuse of discretion.”).

As indicated at the outset, the State properly concedes error on the obstruction by disguise count. The evidence supporting this charge established that defendant gave the police officer a false name and date upon his apprehension. Such evidence, without more, is insufficient to support a conviction as a matter of law. E.g., Leland v. State, 386 So.2d 622, 622 (Fla. 3d DCA 1980)(holding that “a person does not commit the misdemeanor offense of obstruction by a disguised person by the sole act of giving, as here, a false name to a police officer upon being stopped by said officer”)(internal citations omitted). On this count, we reverse.

Affirmed in part and reversed in part, and remanded with instructions to vacate defendant’s conviction for obstruction by disguise.


author: ROTHENBERG, Judge.

text:
    Ricardo CORRIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1293.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.

      Ricardo Corría, in proper person.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant appeals the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm.

The defendant was charged with trafficking in cocaine (400 grams to 2 kilos) and conspiracy to traffic in cocaine (400 grams to 2 kilos). On September 1, 1998, the defendant entered into a negotiated plea with the State, which was memorialized in a written “Plea Agreement” and signed by the defendant, his trial attorney, and the assistant state attorney. Pursuant to this plea agreement, the State agreed to waive the fifteen-year minimum mandatory sentence, and to sentence the defendant pursuant to the agreement, provided the defendant complied with the terms and conditions specified. Paragraph (12) of the Agreement provided that:

If the defendant does not successfully comply with all of the terms and conditions of this agreement then the State of Florida will not waive the statutory minimum mandatory sentence and the defendant shall be sentenced to fifteen (15) years in the State Prison.

Additionally, paragraph (13) of the Agreement provided that:

If the defendant does not respond after proper notice to the sentencing in this matter then the State of Florida will not waive the statutory minimum mandatory sentence and the defendant shall be sentenced to the statutory maximum sentence which shall be thirty (30) years in the State Prison with a fifteen (15) year minimum mandatory sentence.

On March 16, 1999, the trial court found that the defendant failed to comply with the terms and conditions of the plea agreement and sentenced the defendant to fifteen years with a fifteen-year minimum mandatory. On February 16, 2000, this court affirmed the judgment and sentence on direct appeal.

On August 6, 2001, the defendant filed a motion for postconviction relief, pursuant to Florida Rule of Criminal Procedure 3.850, which was denied on September 5, 2001. Thereafter, the defendant filed another motion for postconviction relief, to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), which was also denied on September 13, 2000. The instant motion is the defendant’s second motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), which the trial court denied on April 21, 2005.

The defendant claims that his fifteen-year sentence is an illegal departure to which the court lacked jurisdiction to impose. We affirm the decision denying relief below as the defendant’s claim that the trial court imposed a departure sentence without providing valid reasons for doing so, is not renewable pursuant to Florida Rule of Criminal Procedure 3.800(a). A claim that the trial court improperly departed from the recommended sentencing guidelines may not be brought pursuant to Florida Rule of Criminal Procedure 3.800(a) if the departure sentence is within the legal maximum because it does not constitute an illegal sentence. See Davis v. State, 661 So.2d 1193, 1197 (Fla.1995), receded from in part on other grounds, Carter v. State, 786 So.2d 1173, 1177 (Fla.2001); Isom v. State, 915 So.2d 183 (Fla. 3d DCA2005).

Additionally, we note that the defendant’s claim is time-barred pursuant to Florida Rule of Criminal Procedure 3.850 and even if it were properly before us, we would affirm on the merits. The trial court imposed a sentence to which the defendant specifically agreed and in compliance with the plea agreement. See Quarterman v. State, 527 So.2d 1380, 1382 (Fla.1988) (providing that a departure sentence for the failure to appear at a sentencing hearing is valid if an integral part of the defendant’s plea agreement is that the defendant’s failure to appear at the sentencing hearing will result in the imposition of a departure sentence); see also Maddox v. State, 760 So.2d 89, 107 (Fla.2000) (“A valid plea agreement constitutes clear and convincing grounds for the trial judge to impose a departure sentence.”); State v. Williams, 667 So.2d 191, 193 (Fla.1996); Valentine v. State, 736 So.2d 706 (Fla. 5th DCA 1999).

While the plea agreement specifically provided the trial court with the authority and jurisdiction to impose a sentence departing from the guidelines, the trial court in fact did not do so, as it simply imposed the fifteen-year minimum mandatory sentence required by statute. The seven-year sentence the defendant believes he was entitled to was a departure below the statutory requirements which would have been imposed had the defendant complied with the terms and conditions of his plea agreement. As there were no grounds to support a downward departure, the trial court imposed the sentence the defendant bargained for and which was mandated by law.

We, however, affirm the trial court’s denial of the defendant’s motion based upon the fact that the defendant’s claim is not cognizable pursuant to Florida Rule of Criminal Procedure 3.800(a).

Affirmed.


author: COPE, C.J.

text:
    Michael MORRISON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-3049.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Ishir Mehta, Assistant Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   On Motion for Clarification

COPE, C.J.

On consideration of the State’s motion for clarification, we withdraw our previous opinion and substitute the following opinion.

Michael Morrison appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.

Defendant-appellant Morrison contends he is entitled to a new sentencing proceeding on account of the United States Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed.2d 851 (2004). The trial court correctly denied that claim. The defendant’s convictions and sentences became final on direct appeal in 1999. See Morrison v. State, 731 So.2d 864 (Fla. 3d DCA 1999). The decisions in Apprendi and Blakely are not retroactive. See Hughes v. State, 901 So.2d 837, 838 (Fla.2005); Reed v. State, 898 So.2d 1204, 1205 (Fla. 3d DCA 2005).

The more substantial issue is the defendant’s claim to entitlement to resentencing under Heggs v. State, 759 So.2d 620 (Fla.2000). The State concedes the defendant is entitled to relief and we agree.

The defendant was convicted of multiple offenses which occurred on December 5, 1995. At sentencing the State prepared a 1995 guidelines scoresheet which showed a sentencing range of 234.45 months (19.53 years) to 390.75 months (32.56 years). The trial court sentenced the defendant to thirty-two years with a three-year minimum mandatory sentence.

In 2000 the Florida Supreme Court announced Heggs, which held the 1995 sentencing guidelines to be unconstitutional. Slightly over two years later, the defendant filed a motion to correct illegal sentence requesting resentencing under Heggs (“the 2002 motion”). The defendant alleged that under the 1994 guidelines his sentencing range would be 116.8 months to 194.7 months. Under that calculation, the defendant’s maximum permissible sentence under the 1994 guidelines would be considerably less than his thirty-two-year sentence. The trial court denied the motion to correct illegal sentence.

On appeal, the State argued that Heggs relief could be obtained only by a Rule 3.850 motion and, treated as such, the defendant’s 2002 motion was time-barred. This court affirmed without opinion. See Morrison v. State, 838 So.2d 1167 (Fla. 3d DCA 2003).

As part of the defendant’s current Rule 3.800(a) motion, he has reiterated his Heggs claim. The trial court denied the Heggs portion of the defendant’s motion on the basis that it had already been adjudicated adversely to him.

The defendant in this case was convicted at trial and was sentenced under the 1995 sentencing guidelines. In that circumstance a defendant is allowed to raise a Heggs claim under Rule 3.800(a). Carter v. State, 848 So.2d 1255, 1256 (Fla. 3d DCA 2003) (citing Copeland v. State, 842 So.2d 1052 (Fla. 3d DCA 2003)).

The State concedes, and we agree, that if the defendant’s calculations are correct then it would be a manifest injustice within the meaning of State v. McBride, 848 So.2d 287 (Fla.2003), to enforce a procedural bar on this claim. We therefore reverse for a hearing on the merits of the Heggs claim. The defendant shall be represented by counsel at such hearing.

Affirmed in part, reversed in part and remanded for further proceedings consistent herewith.

      . This is within the Heggs window. See Trapp v. State, 760 So.2d 924, 928 (Fla.2000).


author: RAMIREZ, J.

text:
    AMERICAN TRADES INSTITUTE OF FLORIDA, INC., etc., Petitioners, v. Josbel SANCHEZ, et al., Respondents.
    No. 3D06-410.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.

      HomerBonner, and Peter W. Homer, and Christopher J. King, Miami, for petitioners.
    Lauri Waldman Ross, P.A., and Laura Waldman Ross, and McLuskey and McDonald, P.A., and John McLuskey, Miami, for respondents.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

Petitioner/Defendant American Trades Institute of Florida, Inc. seeks a writ of certiorari quashing the trial court’s January 24, 2006 discovery order for failure to restrict respondents/plaintiffs from soliciting students whose identity is disclosed through discovery. The trial court’s order required ATI to produce more than 500 names and addresses of all enrollees and graduates of ATI’s sonography program from 1996 through 2003, without limiting that the disclosed information could not be used for soliciting students to join in the action. We find that the order departs from the essential requirements of law and causes irreparable harm that cannot be remedied on appeal.

In Stewart v. Jones, 708 So.2d 996 (Fla. 4th DCA 1998), the Fourth District Court of Appeal held that such customer identifying information produced through discovery could not be used for purposes of solicitation of customers as named plaintiffs in a class action. See also Pioneer Electronics (USA), Inc. v. Risi, 918 So.2d 448 (Fla. 4th DCA 2006); Deltona Corp. v. Estate of Bobinger, 582 So.2d 736 (Fla. 3d DCA 1991). It is of no consequence that the case below is no longer a class action, as such customer identifying information also cannot be used to solicit customers to file separate individual suits. See Deltona Corp., 582 So.2d at 737, n. 1.

Accordingly, we grant the petition to the extent that the trial court’s order failed to limit the use of student information for solicitation and to the extent it requires disclosure of students outside of the named plaintiffs’ fifteen start dates and graduates after April 2003. Thus, we quash the order under review and remand for entry of an order consistent with this opinion.

Certiorari granted.


author: PER CURIAM.

text:
    John WARE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1078.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.

      John Ware, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Freeman v. State, 684 So.2d 251 (Fla. 2d DCA 1996).


text:
    Alida C. REINOSO, Petitioner, v. Manuel FUENTES, Lisa Fuentes, and Hartford Insurance Co., Respondents.
    No. 3D06-996.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.
    Adams, Adams & Baca and Richard B. Adams, Jr., Miami, for petitioner.
    Beckham & Beckham and Pamela Beck-ham, Miami; Billing, Cochran, Heath, Lyles, Mauro & Anderson and Gregory Thomas Anderson, West Palm Beach, for respondents.
    Before COPE, C.J., and GREEN and CORTIÑAS, JJ.
   COPE, C.J.

We grant the petition for writ of certio-rari because the correct procedures were not followed in the assertion of a claim for punitive damages.

In count one of the complaint, Manuel and Lisa Fuentes sued Alida C. Reinoso for negligence. In count three, the plaintiffs asserted a claim for punitive damages against defendant Reinoso.

The defendant moved to dismiss count three for failure to comply with subsection 768.72(1), Florida Statutes (2005), which prohibits a claim for punitive damages “unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” It is undisputed that no such showing was made prior to the filing of the complaint.

At an unreported hearing, the trial court denied the defendant’s motion to dismiss the punitive damages claim. The plaintiffs assert, and we accept as true, that they proffered evidence in support of the punitive damages claim at the hearing below. The plaintiffs argue that this proffer satisfied subsection 768.72(1) and brought the plaintiffs into compliance with the statute.

The problem is that the Florida Supreme Court has prohibited such a procedure. On indistinguishable facts, the court said, “It was inconsequential that the trial court in this case subsequently held a hearing on the motions to dismiss and to strike: any punitive damages claim alleged prior to a party asking for and receiving leave of the court must be dismissed or stricken.” Simeon, Inc. v. Cox, 671 So.2d 158, 160 (Fla.1996) (citation omitted).

That being the case, we grant the petition for writ of certiorari and quash the order now before us. The punitive damages claim must be stricken. This ruling is, however, without prejudice to the plaintiffs to reallege the claim upon compliance with the procedures outlined in section 768.72 and the Simeon decision.

The plaintiffs argue that the absence of a transcript precludes review. We disagree. It is facially clear on the record that the plaintiffs included a punitive damages claim in their complaint without leave of court. “Here the trial court faced a pure legal question. Both parties have furnished us with complete appendices containing the pleadings, ... documents and order under review, all of which permit us to review the same legal issue on the merits.” Ronbeck Const. Co. v. Savanna Club Corp., 592 So.2d 344, 348 (Fla. 4th DCA 1992).

Petition granted.

       The plaintiffs also asserted a claim for breach of contract against their insurer, Hartford Insurance Co. That defendant and claim are not involved in this proceeding.


author: WEBSTER, J.

text:
    ROWE ENTERPRISES LLC and Rowe Supermarkets LLC, Appellants, v. INTERNATIONAL SYSTEMS & ELECTRONICS CORPORATION, a Florida corporation, and ExpoCredit Corporation, a Florida corporation, Appellees.
    No. 1D06-557.
    District Court of Appeal of Florida, First District.
    June 22, 2006.

      Alan S. Wachs, Kenneth C. Steel, III, and Genesa L. Eavenson of Volpe, Bajalia, Wickes, Rogerson, Galloway & Wachs, Jacksonville, for Appellants.
    Moisés T. Grayson, and David A. Strauss of Blaxberg, Grayson, Kukoff & Segal, P.A., Miami, for Appellee International Systems & Electronics Corporation. No appearance for appellee ExpoCredit Corporation.
   WEBSTER, J.

Appellants seek review of an order granting appellee International Systems & Electronics Corporation’s (ISE) motion to compel arbitration in this contract dispute. They contend that the trial court committed reversible error when it ruled on the motion to compel arbitration without holding the expedited evidentiary hearing they requested. Because we conclude that factual disputes exist as to whether appellants ever agreed to arbitrate future disputes arising out of the parties’ contractual relationship, we agree with appellants that they were entitled to the expedited eviden-tiary hearing they requested directed to that issue. Accordingly, we reverse, and remand for further proceedings.

The parties entered into a sales agreement in which appellants agreed to purchase from ISE a package of electronic equipment, software and technical assistance necessary for the operation of five of appellants’ supermarkets. The agreement was evidenced by purchase orders called “Investment Summaries.” Each was signed by Rob Rowe, as principal for appellants, and provided that “[t]he investment schedule and all ISE products and services offerings is [sic] subject to the ISE Uniform Agreement terms and conditions.”

Appellants filed an action against appel-lees alleging a breach of contract. ISE responded with a “Motion to Dismiss and to Compel Arbitration,” claiming that the Investment Summaries incorporated by reference a “Uniform Sales, Service and Support Agreement” which provided, among other things, that the parties “hereby agree and consent to arbitrate any and all Disputes with an arbitrator of the American Arbitration Association (‘AAA’) in Dade County, Florida.” Attached to the motion was what ISE represented to be a copy of the Uniform Sales, Service and Support Agreement supposedly signed on the last page by Rowe. Appellants, in turn, filed a “Motion to Stay Arbitration Proceeding” and an affidavit executed by Rowe, asserting that Rowe had never before seen the Uniform Sales, Service and Support Agreement; that the signature on that agreement was not made by him, and was a forgery; and that he never agreed that future disputes arising out of the parties’ contractual relationship might be resolved by arbitration. Appellants requested “an evidentiary hearing to establish a lack of genuineness as to the Purported Agreement to Arbitrate.”

The trial court held a hearing on the parties’ motions, at which ISE argued that, because appellants were challenging the validity of the entire Uniform Sales, Service and Support Agreement rather than just the arbitration clause contained therein, the dispute must be resolved by the arbitrator and, therefore, appellants were not entitled to an evidentiary hearing in the trial court. Appellants responded that they were contending that they had never signed any document containing an agreement to arbitrate and that, therefore, no agreement to arbitrate existed. Because of the nature of their contention, they asserted that the trial court was obliged to hold an expedited evidentiary hearing on the issue. Without holding any evidentia-ry hearing as requested by appellants, the trial court entered its order granting the motion to compel arbitration, “finding] that the parties indeed have an agreement containing a provision that the matter be submitted to arbitration.” This appeal from that non-final order follows. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const, (granting to district courts of appeal jurisdiction to “review interlocutory orders ... to the extent provided by rules adopted by the supreme court”); Fla. R.App. P. 9.130(a)(3)(C)(iv) (providing for appeal to the district courts of appeal of non-final orders that “determine ... the entitlement of a party to arbitration”).

The parties have proceeded in both the trial court and this court on the assumption that the applicable law is that found in the Florida Arbitration Code (§§ 682.01-682.22, Fla.Stat.(2005)), rather than in the Federal Arbitration Act (9 U.S.C. §§ 1-16 (2000)). Although it is far from clear that such an assumption is correct given the nature of the parties’ contract, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (concluding that Congress intended to exercise its full Commerce Clause power when it passed the Federal Arbitration Act), it is unnecessary for us to address this issue because, for purposes of this appeal, the relevant provisions of the two acts (i.e., section 682.03(1), Florida Statutes (2005), and title 9, section 4, United States Code (2000)) “are virtually identical.” See Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127, 128 n. 4 (Fla. 4th DCA 1982). Because resolution of the issue before us turns on construction of a statute, our standard of review is de novo. See, e.g., Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998) (“judicial interpretation of Florida statutes is a purely legal matter and therefore subject to de novo review”); Dep’t of State v. Martin, 885 So.2d 453, 456 (Fla. 1st DCA 2004) (same, citing Racetrac Petroleum), affirmed, 916 So.2d 763 (Fla.2005).

Section 682.03(1) of the Florida Arbitration Code reads:

A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

(Emphasis added.) Similarly, to the extent pertinent, section 4 of the Federal Arbitration Act reads:

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.... If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof....

(Emphasis added.)

Recently, in Buckeye Check Cashing, Inc. v. Cardegna, — U.S.-, 126 S.Ct. 1204, 1208, 163 L.Ed.2d 1038 (2006), the United States Supreme Court identified three types of challenges to arbitration agreements in Federal Arbitration Act cases. The first “challenges specifically the validity of the agreement to arbitrate”; the second “challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the legality of one of the contract’s provisions renders the whole contract invalid”; and the third challenges “whether any agreement between the alleged obligor and obligee was ever concluded” based on issues such as “whether the alleged obligor ever signed the contract, ... whether the signor lacked authority to commit the alleged principal, ... and whether the signor lacked the mental capacity to assent....” Id. at 1208 and n. 1. As a result of the Buckeye Check Cashing decision, it is now clear that the court must decide the first type of challenge, and the arbitrator must decide the second. Although the Court declined to address the question of who must decide the third, several lower federal courts have done so, concluding that such challenges must also be decided by the court.

A particularly instructive decision for our purposes is Chastain v. Robinson-Humphrey Co., 957 F.2d 851 (11th Cir.1992). There, Chastain had filed an action in Georgia state court alleging securities fraud on the part of Robinson-Humphrey. Id. at 853. Robinson-Humphrey removed the action to federal court, and then filed a motion to compel arbitration pursuant to arbitration provisions in two customer agreements. Id. Chastain responded, claiming by affidavit that only her father had signed one agreement, and that she had not given her father authority to do so; and that a signature purporting to be hers on the other agreement was a forgery. Id. Robinson-Humphrey ultimately conceded that Chastain had not actually signed either agreement, id.; however, it argued that she was nevertheless bound either because Chastain’s father had authority to bind her when he signed one agreement or because Chastain subsequently ratified the agreements. Id. at 856. The trial court concluded that, given the positions of the parties, it, rather than a panel of arbitrators, must decide whether a valid agreement to arbitrate existed. Id. at 852-53. The court of appeals agreed, concluding that Chastain’s affidavit placed in issue the validity of the agreement to arbitrate. Id. at 855. The court said:

Under normal circumstances, an arbitration provision within a contract admittedly signed by the contractual parties is sufficient to require the district court to send any controversies to arbitration .... Under such circumstances, the parties have at least presumptively agreed to arbitrate any disputes, including those disputes about the validity of the contract in general. ... Because the making of the arbitration agreement itself is rarely in issue when the parties have signed a contract containing an arbitration provision, the district court usually must compel arbitration immediately after one of the contractual parties so requests.... The calculus changes when it is undisputed that the party seeking to avoid arbitration has not signed any contract requiring arbitration. In such a case, that party is challenging the very existence of any agreement, including the existence of an agreement to arbitrate. Under these circumstances, there is no presumptively valid general contract which would trigger the district court’s duty to compel arbitration pursuant to the Act. If a party has not signed an agreement containing arbitration language, such a party may not have agreed to submit grievances to arbitration at all. Therefore, before sending any such grievances to arbitration, the district court itself must first decide whether or not the non-signing party can nonetheless be bound by the contractual language.

Id. at 854 (citations and footnote omitted; emphasis in original). See also Spahr v. Secco, 330 F.3d 1266, 1273 (10th Cir.2003) (holding that the court must decide whether a party had sufficient mental capacity to enter into a contract containing an arbitration provision); Sphere Drake Ins. Ltd. v. All Am. Ins. Co., 256 F.3d 587, 590-92 (7th Cir.2001) (holding that the court must determine whether the signatory had the power to bind the company to a contract containing an arbitration provision); Sandvik AB v. Advent Int'l Corp., 220 F.3d 99 (3d Cir.2000) (same).

Decisions of Florida courts are to the same effect, concluding that such issues must be resolved before the trial court can reach a decision regarding validity of the arbitration provision. See, e.g., Affinity Internet, Inc. v. Consol. Credit Counseling Servs., Inc., 920 So.2d 1286 (Fla. 4th DCA 2006) (whether the party sought to be compelled to arbitrate had signed a user agreement containing an arbitration provision, which was alleged to have been incorporated by reference into the contract); Extendicare Health Servs., Inc. v. Estate of Patterson, 898 So.2d 989 (Fla. 5th DCA 2005) (whether decedent’s estate could be bound by an arbitration provision contained in a contract to which decedent was not a party); Epstein v. Precision Response Corp., 883 So.2d 377 (Fla. 4th DCA 2004) (whether an officer of a corporation that is a party to a contract containing an arbitration provision is bound by that provision even if he did not sign the contract); Gustavsson v. Washington Mut. Bank, F.A., 850 So.2d 570 (Fla. 4th DCA 2003) (whether the party sought to be compelled to arbitrate could be bound by an arbitration provision in a document, which he never saw, supposedly incorporated by reference into the contract).

We find these federal and state decisions persuasive given the substantial nature of the factual dispute created by Rowe’s affidavit. It is clear that, pursuant to section 682.03(1) of the Florida Arbitration Code, when a factual dispute such as that in this case exists, upon request, the trial court must hold an expedited eviden-tiary hearing and determine whether a valid agreement to arbitrate exists. E.g., Linden v. Auto Trend, Inc., 923 So.2d 1281 (Fla. 4th DCA 2006); Tandem Health Care of St. Petersburg, Inc. v. Whitney, 897 So.2d 531 (Fla. 2d DCA 2005); Epstein v. Precision Response Corp., 883 So.2d 377 (Fla. 4th DCA 2004); Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127 (Fla. 4th DCA 1982). Because, notwithstanding appellants’ request for an expedited evidentiary hearing, the trial court failed to conduct one, we are constrained to reverse, and to remand for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

KAHN, C.J., and HAWKES, J. concur.


author: PADOVANO, J.

text:
    FLORIDA CYPRESS GARDENS and Specialty Risk Services, Appellants, v. Linda LAVOY, Appellee.
    No. 1D05-3468.
    District Court of Appeal of Florida, First District.
    June 22, 2006.
    E. Douglas Spangler, Jr., of Arrick, Peacock, Hodges & Wiener, Tampa, for Appellants.
    J. Mason Wines, Winter Haven and Bill McCabe, Longwood, for Appellee.
   PADOVANO, J.

The employer and carrier appeal a final order directing them to reimburse an injured worker for the fees and expenses of her court-appointed guardian. Because the Judge of Compensation Claims did not apply the correct standard in evaluating the claim for reimbursement, we reverse and remand for further consideration.

The claimant, Linda Lavoy, was totally incapacitated by an injury she sustained on April 28,1980, in the course of her employment with Florida Cypress Gardens. A guardianship was established for her in a separate proceeding in the circuit court. The appointed guardian, Kathleen Foust, performed a variety of services for Lavoy in addition to pursuing her claim for workers’ compensation benefits, and the circuit court ordered that she be paid $8,534.25, from the guardianship estate.

Following the award of fees in the guardianship case, Lavoy filed a petition for reimbursement. She argued that the fees and expenses of the guardianship should be assessed against the employer and carrier, because the need for the appointment of a guardian came about solely as a result of the accident. The employer and carrier agreed to pay for the services the guardian rendered in connection with Lavoy’s earlier claim for workers’ compensation benefits, but maintained the petition should be denied to the extent that it sought reimbursement for other fees and expenses of the guardianship.

The Judge of Compensation Claims agreed with the claimant and, with one minor exception, approved of all the fees and costs relating to all of the guardian’s services, including those that were unrelated to the pursuit of workers’ compensation benefits. Based on our decision in Sanchez v. Woerner Management, Inc., 867 So.2d 1173 (Fla. 1st DCA 2004), the judge concluded that the employer and carrier had failed to present any evidence that would justify a reduction in the guardian’s bill.

However, the question in this case is not whether the guardian performed all of the services listed in her bill. There is apparently no dispute about that. Rather, the question is whether some or all of these services qualify for reimbursement in a claim against the employer and carrier. This is an issue of law.

In Southeastern Concrete Floor v. Charlton, 584 So.2d 574, 576 (Fla. 1st DCA 1991), the only case addressing the point, we held that an employer is obligated to pay for the services of a guardian only to the. extent that those services were “incurred in and about the handling of the claimant[’s] rights, duties, and responsibilities under .Chapter 440.” Perhaps it would be more equitable to make an employer pay for all of the expenses of a guardianship necessitated by a workplace injury, but the issue is not directly addressed in the Workers’ Compensation Law, and we are bound by our own decisions on the subject. The rule in Charlton requires us to reverse the order in this case. On remand, the employer and carrier should be ordered to reimburse the guardianship estate only for the services the guardian performed in the course of pursuing Lavoy’s claims for workers’ compensation benefits.

Reversed and remanded.

ERVIN, J., concurs in result; HAWKES, J., concurs.


author: PALMER, J.

text:
    Evelyn GATTEN, Appellant, v. Lenka ZACHAR, M.D., Appellee.
    No. 5D05-2981.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.

      Keith Mitnik, of Morgan and Morgan, P.A., Orlando, for Appellant.
    Griffith J. Winthrop, III and Julianne J. Flynn, of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Appellee.
   PALMER, J.

In this medical malpractice action, Evelyn Gatten appeals the trial court’s final order entering judgment in favor of Dr. Lenka Zachar. Gatten has failed to establish harmful error and, accordingly, we affirm.

Gatten sued Dr. Zachar, both individually and as the personal representative of her late husband John’s estate, alleging that Mr. Gatten died as the result of Dr. Zachar’s negligent medical care. The matter went to trial before a jury. Upon review of the evidence presented, the jury returned a verdict finding that there was no negligence on the part of Dr. Zachar which was a legal cause of Mr. Gatten’s death. The trial court entered judgment against Gatten in accordance with the jury’s verdict. This appeal timely followed.

Gatten argues that the trial court reversibly erred in denying her motion for mistrial which was raised following the close of defense counsel’s opening argument. We disagree.

In White v. Consolidated Freightways Corp. of Delaware, 766 So.2d 1228 (Fla. 1st DCA 2000), the First District summarized the applicable standard of review as follows:

“[A] trial court’s ruling on a motion for mistrial is subject to an abuse of discretion standard of review.” See Goodwin v. State, 751 So.2d 537, 546 (Fla.1999). ‘Whether a trial court should grant a mistrial is within that court’s discretion, and a mistrial should not be granted unless an absolute legal necessity to do so exists.” See Ratley v. Batchelor, 599 So.2d 1298, 1302 (Fla. 1st DCA 1991). Cf. Nigro v. Brady, 731 So.2d 54, 56 (Fla. 4th DCA 1999). In reviewing such discretionary act, the appellate court should apply the [Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) ] reasonableness test. See Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145, 146 (Fla.1980).

Id. at 1232 (footnote omitted).

Defense counsel began his opening argument by stating:

Ladies and gentlemen, thank you for listening to this case and I want to thank you on behalf of my client, Dr. Zachar, for spending the time throughout this week listening to us. This is a very important time for Dr. Zachar. She is being challenged, her livelihood is being challenged.

(Emphasis added). Plaintiffs counsel immediately objected, stating:

Nobody is challenging her livelihood. That’s totally inappropriate.

The trial court responded:

I agree. The jury will disregard that remark. Livelihood is not being challenged.

Following the close of both opening arguments, plaintiffs counsel made a verbal motion for mistrial stating:

[T]hat comment about attacking livelihood which goes straight to all this publicity about three strikes and you’re out. That was egregious, ain’t even close to appropriate and I don’t think a curative fixes it.

Defense counsel responded by arguing that Ms. Gatten’s lawsuit was in fact a personal attack on Dr. Zaehar’s profession and that his comment just stated the obvious. The trial court denied the mistrial motion, noting:

Well, I don’t think it’s so egregious as to require a mistrial, but I caution y’all that we have talked about this litigation — or, excuse me, legislation and publicity and all those things and try to stay away from that. And, frankly, my sense of that was the comment went more to the three strikes deal than it did to anything else when you’re challenging livelihood.

Ms. Gatten has failed to sustain her burden of proving that the trial court abused its discretion in denying her mistrial motion since she has made no showing that there was “an absolute legal necessity” for the court to grant the motion. See White, 766 So.2d at 1232. The trial court not only sustained plaintiff counsel’s objection to defense counsel’s comment but also issued a contemporaneous curative instruction clearly informing the jury that Dr. Zachar’s livelihood was not being challenged and that the jury was required to disregard defense counsel’s remark.

Although we do not condone the improper statement made by defense counsel, we find no error in the manner in which the trial court dealt with Ms. Gatten’s objection.

AFFIRMED.

PLEUS, C.J., and TORPY, J., concur.


author: THOMPSON, J.

text:
    Anthony P. SVOBODA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D05-4323.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.

      Anthony P. Svoboda, Monticello, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   THOMPSON, J.

Petitioner, Anthony Svoboda, filed a petition seeking a belated appeal, alleging under oath that the facts stated in his petition were true. The State was ordered to respond, and the State pointed out that the Department of Corrections’ (“DOC”) records contradicted the petitioner’s own sworn allegations. This court appointed a commissioner to conduct an evidentiary hearing and make findings of fact and a recommendation to this court regarding petitioner’s “Request for a Belated Appeal”, as well as the State’s specific claim that petitioner, by all indications, has filed a falsified document with this court. See Fla. R.App. P. 9.141(c). The commissioner held the hearing, and the State has now filed the Commissioner’s Report. The commissioner concluded petitioner had lied under oath. Specifically, the commissioner found although petitioner testified he served a copy of his pleadings on the state attorney, he did not. More important, the commissioner found that petitioner testified that he filed his notice of appeal while he was at the Jefferson Correctional Institute in Monticello on 31 May 2004. The DOC records show that petitioner was, at that point in time, in the Central Florida Reception Center (CFRC), East Unit, not at Jefferson Correctional Institute. We deny the petition with recommendations to the Department of Corrections.

Based upon the testimony at the hearing, the commissioner recommended petitioner’s request be denied. We accept the commissioner’s recommendation; however, in light of his finding of perjury, and to protect the sanctity of the court proceedings, this court takes additional action beyond merely denying petitioner’s petition.

This court receives many petitions for belated appeal, yet the allegations petitioners have to make are very minimal. Petitioners should not be allowed to cavalierly lie to this court — it requires this court to order a commissioner’s report, requires the judge to hold a hearing, requires the prisoner’s transportation to this hearing, requires the judge to issue a commissioner’s report, and requires this court to then rule upon that report.

In the present case, the appointed commissioner found that petitioner filed a falsified document. While the commissioner did not use the word “knowingly” or “intentionally,” the findings in full establish that petitioner deliberately filed a falsified document. Acting upon the commissioner’s findings, petitioner deserves the sanction of section 944.279(1), Florida Statutes, which states:

A prisoner who is found by a court ... to have brought a frivolous or malicious collateral criminal proceeding, which is filed after September 30, 2004, or who knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The court shall issue a written finding and direct that a certified copy be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09.

See also Nixon v. State, 921 So.2d 819 (Fla. 5th DCA 2006); Miller v. State, 917 So.2d 261 (Fla. 5th DCA 2005); Wilson v. State, 916 So.2d 975 (Fla. 5th DCA 2005); Cole v. State, 913 So.2d 709 (Fla. 5th DCA 2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005); Valentine v. State, 873 So.2d 608 (Fla. 5th DCA 2004).

Based upon the commissioner’s recommendation, we deny Svoboda’s petition for belated appeal. In light of the assertion made by Svoboda in his petition, under penalty of perjury, that he had requested an appeal, we direct that a certified copy of this opinion be forwarded to the Jefferson Correctional Institution for the consideration of disciplinary procedures pursuant to section 944.279(1), Florida Statutes (2004), and a copy of the disposition report be forwarded to this court, the attorney general’s office and the hearing commissioner.

PLEUS, C.J., and ORFINGER, J„ concur.


text:
    TRAVEL COUNTRY RV CENTER, INC., Appellant, v. Lester BAXTER, Loretta Baxter, Damon Corporation, and Citizens Automobile Finance, Inc., Appellees. and Damon Corporation, Appellant, v. Lester Baxter, Loretta Baxter, Travel Country RV Center, Inc., and Citizens Automobile Finance, Inc., Appellees.
    Nos. 1D05-5460, 1D05-5846.
    District Court of Appeal of Florida, First District.
    June 27, 2006.
    Bruce Brashear of Brashear <& Associates, P.L., Gainesville, for Appellant Travel Country RV Center, Inc. in Case No. 1D05-5846.
    David M. Robertson of Sellers, Prevatt & Robertson, Live Oak, for Appellees Lester and Loretta Baxter in Case No. 1D05-5846.

    Kimberly A. Ashby of Akerman Senter-fitt, Orlando, for Appellant Damon Corporation in Case No. 1D05-5460.

      David M. Robertson of Sellers, Prevatt & Robertson, Live Oak, for Appellees Lester and Loretta Baxter in Case No. 1D05-5460.
   PER CURIAM.

In case number 1D05-5846, appellant, Travel Country RV Center, Inc. (“Travel Country”), appeals the trial court’s denial of its motion to transfer venue of the case against it, Damon Corporation, and Citizens Automobile Finance, Inc. In case number 1D05-5460, appellant, Damon Corporation, appeals the trial court’s denial of its motion to transfer venue of the same case. The appeals are consolidated for purposes of this opinion. Because we agree with Travel Country that the trial court erred in not honoring the venue selection clause contained in Travel Country’s purchase agreement with appellees, Lester and Loretta Baxter, we reverse the trial court’s order denying its motion and remand for further proceedings. This disposition renders Damon Corporation’s appeal moot.

Appellees filed suit in Suwannee County against appellants and Citizens Automobile Finance, Inc. after purchasing an allegedly defective motor home manufactured by Damon Corporation and sold by Travel Country. Damon Corporation moved to transfer venue to Columbia County. The trial court denied the motion, finding that one count of appellees’ eleven-count complaint, a breach of contract action against Damon Corporation, accrued in Suwannee County. Travel Country also filed a motion to transfer venue to Columbia County, relying on its purchase agreement with appellees in which the parties agreed that “[a]ny action arising under this agreement or between the parties hereto is agreed to be brought in the court of appropriate jurisdiction in Columbia County, Florida.” The trial court denied Travel Country’s motion, reasoning that “[bjecause venue is proper in Suwannee County, Florida as to Damon Corp., the forum selection clause contained in the Purchase Agreement entered between Travel Country and Plaintiffs does not override or preclude Plaintiffs’ right and privilege to select Suwannee County, Florida as the venue for this action.” These appeals followed.

A trial court must honor a mandatory venue selection clause in the absence of a showing that the clause is unjust or unreasonable. Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986); Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999). Appellees acknowledged below that the venue selection clause at issue is mandatory with respect to their claims against Travel Country and made no argument that the clause is unjust or unreasonable. Appellees instead argue that their choice of venue as to Damon Corporation should release them from their contractual obligation to bring suit against Travel Country in Columbia County. However, it makes no difference that venue as against Damon Corporation may be proper in Suwannee County. By bringing suit against Travel Country and Damon Corporation as co-defendants and by failing to establish that the venue selection clause is unjust or unreasonable, appellees are bound by the venue selection clause as to both appellants and must bring the case in Columbia County. The trial court erred in not honoring the clause and in denying Travel Country’s motion.

Accordingly, we REVERSE the trial court’s order denying Travel Country’s motion to transfer venue to Columbia County and REMAND for further proceedings. Given our disposition in Travel Country’s appeal, we DISMISS Damon Corporation’s appeal as moot.

ALLEN, LEWIS, and HAWKES, JJ., concur.


author: WOLF, J.

text:
    Candace Crosby LANCASTER, Appellant, v. Johnny Shane Randall BRILEY, Appellee.
    No. 1D05-4784.
    District Court of Appeal of Florida, First District.
    June 27, 2006.
    Michael L. Edwards, Jacksonville, for Appellant.

      Walter R. Stedeford, Jacksonville, for Appellee.
   WOLF, J.

Candace Lancaster (the mother) seeks review of the final order denying her petition for relocation of her minor child. We reverse the order of relocation for two reasons: (1) one of the trial court’s critical findings is not supported by competent substantial evidence; and (2) the trial court applied the wrong standard in determining whether substitute visitation could foster a meaningful relationship with the minor child.

The parties divorced in 2003, and the mother filed the petition on November 15, 2004, to relocate the parties’ 4-year-old son from Jacksonville, Florida, to Blairs-ville, Georgia.

In her petition seeking relocation, the mother stated that, due to her recent divorce, she would become the sole provider to her children and would be required to find adequate housing and daycare above the level she could afford. Further, the petition for relocation stated that the move would (1) enable her to find better employment and housing; and (2) enable her parents to become the child’s daycare provider.

At the hearing on the petition, substantial, unrefuted evidence was presented that the child’s quality of life would be much improved in Blairsville, Georgia. Namely, the evidence presented established that (1) the mother was able to procure a large town-home in a well established neighborhood which offered tutoring, movies, and a curfew for her children at the cost of $400.00 monthly in Georgia while in Jacksonville, a smaller town-home in a questionable neighborhood would cost approximately $800.00 monthly; (2) her parents were providing daycare for both her children at no cost, saving her a total of $800.00 monthly and increasing the children’s familial connections; (3) her new work schedule enabled her to spend more time with the children, a feat that could not have been accomplished in Jacksonville where she was required to work six days a week until 7:00 at night; (4) she had obtained employment with an obstetrician who was financing her medical certification, and she could not have found similar employment in Jacksonville; (5) the child was happy in his new home and enjoyed the extra space and better living environment; (6) the father retained visitation for 6 weeks in the summer and holidays and was able to visit his son in Georgia; and (7) the father’s child support payments had been reduced significantly to aid in transportation costs. However, despite the aforementioned evidence, the trial court denied the petition for relocation and expressly found “there was no evidence that the wife and child’s quality of life was improved....”

In cases where a final judgment of divorce incorporates an express prohibition against relocation, the moving party must show a change of circumstances in order to justify relocation. See Landingham v. Landingham, 685 So.2d 946 (1996). Specifically, the moving party must show (1) that the circumstances have substantially and materially changed since the original custody order; (2) the child’s best interests justify altering the custody order; and (3) the change is not one that was contemplated at the time of the custody determination. See Wade v. Hirschman, 903 So.2d 928 (Fla.2005). See Mize v. Mize, 621 So.2d 417 (Fla.1993).

In making a determination as to whether the primary residential parent may relocate with a child, section 61.13(2)(d), Florida Statutes (2005), requires the court consider the following factors:

1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child.
2. The extent to which visitation rights have been allowed and are exercised.
3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.
5. Wdiether the cost of transportation is financially affordable by one or both parties.
6. Whether the move is in the best interests of the child.

Thus, one of the critical issues is whether the proposed move is in the best interest of the child. In its order denying the appellant’s request for relocation, the trial court stated no evidence was presented as to this issue. However, the unrefuted evidence of improved quality of life previously cited was seemingly overlooked by the trial court and strongly supports granting the mother’s petition. We, therefore, cannot say competent substantial evidence supports this critical finding by the trial court.

We also find that the trial court erred when it applied the incorrect legal standard in regards to whether a substitute visitation could foster a “continuing meaningful relationship” between the ap-pellee and the minor child. The proper standard in considering whether a substitute visitation schedule can support relocation is not whether the schedule can provide the same degree and frequency of visitation but whether the schedule can foster a “continuing meaningful relationship” between the non-custodial parent and the minor child. See Wilson v. Wilson, 827 So.2d 401, 403 (Fla. 2d DCA 2002). If the former standard were applied, no requests for relocation could meet the required showing. Id. In its order denying the appellant’s request for relocation, the trial court continually stated that the current level of visitation could not be duplicated if the child were to move to Georgia. Thus, on remand, the relevant inquiry should be whether this substantial amount of visitation can foster a continuing and meaningful relationship with the child. We, therefore, remand for consideration of the issue by the trial court.

REVERSED AND REMANDED.

PADOVANO and POLSTON, JJ., concur.


text:
    Mose HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1326.
    District Court of Appeal of Florida, First District.
    June 27, 2006.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Mose Harris appeals a judgment of conviction and habitual felony offender sentence for the sale and delivery of cocaine within 1,000 feet of a church in violation of section 893.13(l)(e)l, Florida Statutes (2004). Among other issues, appellant argues that, because section 893.101, Florida Statutes (2004), eliminates knowledge of the illicit nature of a substance as an element of the offense, his convictions violate the due process clauses of the federal and Florida constitutions. We cannot agree. Section 893.101 has been upheld against challenges based on the due process clause. See Wright v. State, 920 So.2d 21 (Fla. 4th DCA), rev. denied, 915 So.2d 1198 (Fla.2005); Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005); see also Reynolds v. State, 842 So.2d 46, 47-8 (Fla.2002)(quoting State v. Gray, 435 So.2d 816, 819-20 (Fla.1983)(“It is within the power of the legislature to declare conduct criminal without requiring specific criminal intent to achieve a certain result; that is, the legislature may punish conduct without regard to the mental attitude of the offender, so that the general intent of the accused to do the act is deemed to give rise to a presumption of intent to achieve the criminal result....”)); State v. Giorgetti 868 So.2d 512, 516 (Fla.2004)(“[W]e will ordinarily presume that the Legislature intends statutes defining a criminal violation to contain a knowledge requirement absent an express indication of a contrary intent. An express provision dispensing with guilty knowledge will always control, of course, since in that instance the Legislature will have made its intent clear.”). By section 893.101, the Florida Legislature has clearly stated its express intent to eliminate the guilty knowledge requirement for chapter 893 offenses.

We affirm all issues raised on appeal.

KAHN, C.J., ERVIN, and VAN NORTWICK, JJ„ concur.


text:
    AMERICAN PANEL CORPORATION and Royal and Sunalliance, Appellants/Cross Appellees, v. Noel SMITH, Appellee/Cross Appellant.
    No. 1D05-3446.
    District Court of Appeal of Florida, First District.
    June 27, 2006.

      Lori M. Little of Edward T. LeFever, P.A., Ocala, for Appellants.
    Lynne Shigo of The Shigo Law Firm, Gainesville; Susan W. Fox of Fox & Lo-quasto, Tampa, and Wendy S. Loquasto of Fox & Loquasto, Tallahassee, for Appellee.
   PER CURIAM.

Appellants, American Panel Corporation and Royal and Sunallianee, filed this appeal seeking reversal of the portion of the judge of compensation claims’ (JCC)’s compensation order awarding appellee, Noel Smith, indemnity benefits for the week of November 17, 2003. Appellee filed a cross-appeal challenging the portion of JCC’s compensation order denying ap-pellee’s request for indemnity benefits for the weeks of October 20, November 3, November 10, 2003, and January 12, 2004. We affirm without comment the portion of the JCC’s order awarding appellee indemnity benefits for the week of November 17, 2003. However, because we agree with appellee that the JCC misconstrued state law in denying appellee’s request for indemnity benefits respecting the additional periods, we reverse and remand for further proceedings.

In denying appellee’s claim for indemnity benefits for the weeks of October 20, November 3, November 10, 2003, and January 12, 2004, the JCC incorrectly stated:

I believe Florida law provides that an injured worker who loses work time due to attending unauthorized physician’s appointments is unable to recover workers’ compensation indemnity benefits, which result from attendance at these appointments, unless he has first followed the managed care provisions to attempt to seek such care. For example, the managed care plan could have provided for medical examinations at the Employer’s facility, thereby eliminating the need for time away from work.

Contrary to the JCC’s ruling, this court has ruled that a claimant is not barred from seeking indemnity benefits merely because he or she refuses to participate in an E/C’s managed care arrangement. See Dramis v. Palm Beach County Sch. Bd., 829 So.2d 346, 350 (Fla. 1st DCA 2002). The existence of a managed care arrangement is relevant to a claim for medical treatment, but is not dispositive of a claim for indemnity benefits. Id.; see also Fla. Distillers v. Rudd, 751 So.2d 754, 757 (Fla. 1st DCA 2000) superseded by statute on other grounds as stated in Jefferson v. Wayne Dalton Corp./Hartford, 793 So.2d 1081 (Fla. 1st DCA 2001).

Therefore, we reverse and remand with directions to determine whether appellee is entitled to indemnity benefits for the weeks of October 20, November 3, November 10, 2003, and January 12, 2004.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

WOLF, PADOVANO, and POLSTON, JJ., concur.


text:
    Norman J. BOTARF, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1740.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2006.
    Norman J. Botarf, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Acres v. State, 925 So.2d 435 (Fla. 5th DCA 2006).

SAWAYA, MONACO and LAWSON, JJ., concur.


text:
    Jermaine Leonard SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1741.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2006.
    Kenneth N. Weaver, of Weaver & Dorf-man, P.A., Melbourne, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Jenkins v. State, 794 So.2d 654 (Fla. 2d DCA 2001), review denied, 819 So.2d 135 (Fla.2002).

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


text:
    Samuel E. GLASCO, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1512.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2006.
    Samuel E. Glaseo, Cocoa, pro se.

      No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Bowen v. State, 833 So.2d 288 (Fla. 5th DCA 2002).

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


text:
    Anthony TORBERT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1506.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2006.
    Anthony Torbert, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Owen v. Crosby, 854 So.2d 182 (Fla.2003).

SHARP, W., THOMPSON and SAWAYA, JJ., concur.


text:
    Robert Nathaniel KIRBY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1431.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2006.
    Robert Kirby, Lake Butler, pro se.
    No Appearance for Appellee.
   PER CURIAM.

DISMISSED. See Maysonet v. State, 722 So.2d 230 (Fla. 5th DCA 1998).

PLEUS, C.J., SHARP, W., and SAWAYA, JJ., concur.


text:
    Nicholas ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3977.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2006.

      James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., SAWAYA and ORFINGER, JJ., concur.


text:
    Judith M. DAVIS, as Personal, etc., Appellant, v. PLM LIMITED PARTNERSHIP, etc., Appellee.
    No. 5D05-4031.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2006.
    Michael J. Carter of Morgan & Morgan, P.A., Orlando, for Appellant.
    Sylvia H. Walbolt, Matthew J. Coniglia-ro & Henry G. Gyden of Carlton Fields, P.A., Tampa, for Appellee.
   PER CURIAM.

AFFIRMED. See Bland v. Health Care & Retirement Corp. of America, 927 So.2d 252 (Fla. 2d DCA 2006).

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


text:
    Manuel VASQUEZ-ROQUE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3694.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2006.
    James S. Purdy, Public Defender and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Manuel Vasquez-Roque, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    David Gomez MILLAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1152.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Rene A. Sotorrio, Coral Gables, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.

      Before COPE, C.J., and GERSTEN and GREEN, JJ.
   COPE, C.J.

David Gomez Millan appeals his conviction for second degree murder. We affirm.

Defendant-appellant Millan and a code-fendant, Miguel Valdez, were charged with first degree murder of Roland Pastor. They were tried before separate juries.

The defendant admitted that he had stabbed the victim to death, but contended that he did so in self-defense. After a two-week trial the jury found the defendant guilty of second degree murder, as a lesser included offense. The defendant has appealed.

The defendant contends that the trial court erred by admitting evidence of the defendant’s gang membership and activities. We conclude that the evidence was admissible.

The victim in this case was found to have an emblem of the Latin Kings gang carved on his forehead. According to the medical examiner, this was cut into the victim’s forehead with a cutting instrument at or around the time of the victim’s death.

The defendant was the head of the Latin Kings gang in Florida. The codefendant was a member of the gang. The killing took place in the defendant’s home. Although the defendant’s claim was self-defense, he did not call the police. Instead, he and a codefendant dumped the body elsewhere.

The State filed a notice of intent to rely on evidence of other crimes, wrongs, or acts (“the Williams rule notice”). The proposed evidence was that the defendant and codefendant were active members of the Latin Kings gang, an explanation of what the gang was, and an explanation of the markings carved on the victim’s forehead and the significance thereof. The trial court allowed the evidence, over defense objection.

The trial court’s evidentiary ruling was well within its discretion. “[I]n some contexts, evidence of gang membership may be admissible to explain such disputed or unclear issues in the case as premeditation, motive or intent.” Reyes v. State, 783 So.2d 1129, 1136 (Fla. 3d DCA 2001); see Laflipe v. State, 888 So.2d 104 (Fla. 3d DCA 2004).

Carving a gang insignia on the forehead of the dead or dying victim is inconsistent with the idea that the defendant killed the victim in self-defense. The expert testimony was that the exact symbol used, the Latin Kings’ initials plus a downturned pitchfork is a sign of disrespect of the victim. The evidence was admissible on the issue of premeditation and intent, and to rebut the claim of self-defense.

The defendant argues that reversal is required because during the testimony of the gang experts, the experts on approximately five occasions mentioned that the Latin Kings gang engaged in criminal conduct which was unrelated to the charges against the defendants in this case. There was no contemporaneous objection to the comments the defendant cites in his brief. Thus, that issue is not preserved for appellate review. See Anderson v. State, 863 So.2d 169, 181 (Fla.2003); § 924.051(1)(b), (3), Fla. Stat. (2002).

The defendant argues that the court erred by allowing, over objection, evidence that a cooperating witness, a prison inmate, had been beaten by other inmates who are members of the Latin Kings gang. The defense argues that the evidence of these beatings was not tied to the defendant, and was therefore inadmissible on the issue of the defendant’s guilt. See Koon v. State, 513 So.2d 1253, 1256 (Fla.1987); Lopez v. State, 716 So.2d 301, 307 (Fla. 3d DCA 1998).

The State offered the evidence on the theory that it was permissible anticipatory rehabilitation. See Bell v. State, 491 So.2d 537, 538 (Fla.1986). The State argued in substance that it should be allowed to anticipate that on cross-examination the defense would attempt to impeach the witness by suggesting that his cooperation was part of his obligations under his favorable plea agreement. The State wished to counter that claim of pro-state bias by arguing that the witness had been severely beaten by gang members while in prison, currently was in protective custody, and was testifying at some risk to himself.

It appears that this testimony was not permissible on account of Ponticelli v. State, 593 So.2d 483 (Fla.1991), vacated on other grounds, 506 U.S. 802, 113 S.Ct. 32, 121 L.Ed.2d 5 (1992). In that case an inmate, Freeman, was testifying for the State. Over objection, the witness was allowed to testify that it was dangerous for him to be in court testifying. Id. at 489. The court held that the testimony should not have been admitted, stating:

Ponticelli is correct that threats made against a witness are inadmissible to prove guilt unless the threats are shown to be attributable to the defendant. Koon v. State, 513 So.2d 1253 (Fla.1987), cert. denied, 485 U.S. 943, 108 S.Ct. 1124, 99 L.Ed.2d 284 (1988); Duke v. State, 106 Fla. 205, 142 So. 886 (1932). However, the state maintains that the testimony was not offered to prove guilt but was offered as anticipatory rehabilitation under this Court’s decision in Bell v. State, 491 So.2d 537 (Fla.1986). See Koon v. State, 513 So.2d at 1256 (“The fact that a witness has been threatened with respect to his testimony may bear on his credibility regardless of who made the threat.”).
While we reject the state’s contention that eliciting testimony from a witness on direct examination that he is testifying for the state despite possible reprisals from other inmates because he feels it is “morally right” is proper anticipatory rehabilitation, we find any error in admitting this testimony harmless. Cf. State v. Price, 491 So.2d 536 (Fla.1986) (testimony concerning third-party threats may be deemed so prejudicial as to require its exclusion even where it would otherwise be properly admissible under a recognized theory of evidence). Freeman’s testimony did not concern actual threats that jurors could have reasonably inferred to have been encouraged by Ponticelli. Further, it is clear from the testimony that Freeman feared reprisals from the general inmate population, a fear which is typical of any inmate who testifies on behalf of the state and is less likely to lead to the improper inference that possible reprisals are somehow attributable to the defendant.

Id. (emphasis added).

In this case the prosecutor was allowed to ask the witness “how many times have you been moved in the correctional institution for being involved in physical altercations with Latin Kings?”, as well as followup questions. Since the jury had been told that the defendant was the head of the Latin Kings gang in Florida, the jury was likely to draw the conclusion that the defendant was responsible for those altercations. Under the logic of Ponticelli, the testimony was inadmissible.

We conclude, however, that the testimony was harmless beyond a reasonable doubt. In this case the defendant admitted that he had killed the victim but argued self defense. He gave a lengthy statement to the police. In his description of the events, he said that the victim reached for a knife but he (the defendant) grabbed it first. Once the defendant grabbed the knife, the victim was unarmed. The defendant then stabbed the unarmed victim.

The medical examiner testified that the victim was stabbed several times, beaten with a bat and tire iron, and had his throat slit. While the victim was dead or dying, the Latin Kings’ insignia was carved into the victim’s forehead. The medical evidence and the defendant’s own account are inconsistent with any theory of self defense. Under the circumstances present here, the error was harmless.

The defendant requests a new trial on account of several statements made by the prosecution during closing argument. Most of the statements cited by the defense were not objected to, and do not amount to fundamental error. See Wilchcombe v. State, 842 So.2d 198, 200 (Fla. 3d DCA 2003). We find no error in the trial court’s rulings in those instances in which the defense did object.

Affirmed.

      . Williams v. State, 110 So.2d 654 (Fla.1959), codified as subsection 90.404(2), Fla. Stat. (2002).


text:
    Vincent MARGIOTTI, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-935.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Vincent Margiotti, in proper person.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for respondent.
    Before RAMIREZ and CORTEÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The petition for belated appeal is granted. The order below is affirmed on the merits.


text:
    Flavio GAVINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-674.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.

      Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Defendant alleges that he did not qualify as a habitual felony offender according to the habitual offender statute existing at the time of the crime because he did not have at least two prior qualifying felony convictions. See Bover v. State, 797 So.2d 1246 (Fla.2001). The official judgment and sentence for defendant’s prior offense indicates that defendant was convicted and sentenced to a single count of grand theft. In response, the State has provided records from the Clerk’s Office of the Eleventh Judicial Circuit, showing computer records that defendant was in fact convicted of two counts of grand theft. At best, the record is inconclusive as to whether defendant is entitled to relief. Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    O.M. and A.F., Petitioners, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent.
    No. 3D06-1366.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.

      Albert W. Guffanti, Miami, for petitioners.
    Karla Perkins, Assistant District Legal Counsel, Department of Children and Family Services; Guardian-Ad-Litem Program and Hillary S. Kambour, for respondent.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

We grant the petition for writ of certio-rari and quash the trial court’s order as to visitation dated May 16, 2006. We direct that the trial court conduct a hearing regarding the parents’ request for supervised visitation where the parents are given an opportunity to be heard. See § 39.402(5)(b)1, Fla. Stat. (2005).

Petition granted, order quashed as to visitation with instructions.


text:
    Brian Robert JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1072.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Brian Robert Johnson, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GREEN, RAMIREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Brian Robert Johnson appeals an order denying his motion for mitigation of sentence filed pursuant to rule 3.800(c), Florida Rules of Criminal Procedure. “Such an order is not reviewable by appeal but may be reviewed under this [C]ourt’s certiorari jurisdiction.” See Velazquez v. State, 917 So.2d 306 (Fla. 2d DCA 2005). We therefore treat this appeal as a petition for writ of certiorari and deny it.

Petition for writ of certiorari denied.