author: FULMER, Judge.

text:
    Martha C. HAMILTON, Appellant/Cross-Appellee, v. Claude W. TANNER, Appellee/Cross-Appellant.
    No. 2D06-1709.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2007.

      J. Stanford Lifsey, Tampa, for Appellant/Cross-Appellee.
    David A. Townsend of Townsend & Brannon, Tampa, for Appellee/Cross-Ap-pellant.
   FULMER, Judge.

Martha C. Hamilton appeals the trial court’s award of lease damages to Claude W. Tanner. We reverse because the statute of limitations precludes the award. Mr. Tanner cross-appeals the court’s failure to award him additional damages that, he alleged, arose from a holdover tenancy following the expiration of the lease. We affirm the trial court’s denial of these damages.

On January 31, 1989, Claude W. Tanner, as lessor, and Ralph and Martha C. Hamilton, as lessees, entered into a commercial Lease-Option Agreement beginning October 25, 1988, and lasting until October 24, 1994, with monthly rent set at $1300. The agreement also made the Hamiltons liable for sales taxes and real property taxes. The property was a funeral home.

On September 4, 2002, Mr. Tanner filed a Complaint and on December 22, 2004, an Amended Complaint. Mr. Tanner alleged that the Hamiltons became holdover tenants at the expiration of the lease term in 1994 and that they abandoned the property in July 2002. He alleged that the Ham-iltons owed him $144,454.11 in unpaid rent and related charges, encompassing both the lease term and the postexpiration period. Ralph Hamilton died in May 2005, and on May 26 Mr. Tanner voluntarily dismissed the case as to Ralph Hamilton and his estate. On August 25, 2005, Mrs. Hamilton filed an amended counterclaim, whose specific claims are not at issue here. Mrs. Hamilton acknowledged the existence of the lease agreement, alleged that the Hamiltons had occupied the property “pursuant to the Lease” through the 1994 expiration date, and acknowledged that they had remained in the property “under the same terms and conditions” after the termination of the lease agreement in 1994.

The case was tried before the court in February 2006. The court entered a final judgment against Mrs. Hamilton for lease damages in the amount of $56,130.10, corresponding to the amount still owing for rent and taxes that had accrued during the term of the lease agreement, less $1300 as stipulated by the parties. Although the court in its written order did not specify how it arrived at its total, the total is consistent with the court’s oral ruling that Mrs. Hamilton was liable for only the back rent and taxes due that had accrued during the term of the lease agreement. The court awarded no damages to Mr. Tanner for rent and taxes that had accrued during the postexpiration period. In its oral ruling, the court explained that any damages owing for the postexpiration period were not Mrs. Hamilton’s responsibility because the arrangement that existed after the lease expired was between Mr. Tanner and Mr. Hamilton, who had died and been voluntarily dismissed, but not Mrs. Hamilton. Mrs. Hamilton appeals the award of lease damages, and Mr. Tanner cross-appeals the court’s denial of additional damages for rents and taxes that accrued during the postexpiration period.

Mrs. Hamilton’s appeal

Mrs. Hamilton’s appeal concerns the trial court’s award of damages to Mr. Tanner for unpaid rents and taxes that accrued during the term of the lease agreement. Mrs. Hamilton argues that the statute of limitations as to an action on the lease agreement is five years, § 95.11(2)(b), Fla. Stat. (2002), and that the statute began to run upon the expiration of the agreement on October 24, 1994; as a result, the statute expired well before the lawsuit was filed in September 2002. Mr. Tanner argues that several rent checks signed by Mrs. Hamilton in 2000-2002 “rejuvenated” the statute of limitations.

A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review. See Chrestensen v. Eurogest, Inc., 906 So.2d 343, 344 (Fla. 4th DCA 2005). The relevant law as it relates to leases is well summarized as follows:

A cause of action on a contract accrues and the limitations period commences at the time of the breach. Lease agreements require installment payments, and each failure to pay an installment constitutes an individual breach. Courts in numerous Florida cases have reiterated the general rule that when there has been a breach, abandonment, or renunciation of a lease before the expiration of the term, the lessor has three options. The lessor may (1) treat the lease as terminated and retake possession for the lessor’s purposes; (2) hold possession for the lessee’s account, in which case the lessee is responsible for any difference between the rent obligation and amounts the lessor recovers by reletting the premises; or (3) stand by and do nothing and sue the lessee as each installment of rent matures, or sue for all the rents due when the lease expires.

Holiday Furniture Factory Outlet Corp. v. State, Dep’t of Corrections, 852 So.2d 926, 928 (Fla. 1st DCA 2003) (citations omitted; emphasis added); see also Greene v. Bursey, 733 So.2d 1111, 1114 (Fla. 4th DCA 1999) (“Ordinarily, the statute of limitations under an installment contract starts to run on the date each payment becomes due. As such, the statute of limitations may run on some installments and not others.” (Citations omitted.)). In Holiday Furniture, the commercial lessor opted to sue for all rents due when the lease expired. The court held that the lessor “was entitled to sue [the lessee] for all of the unpaid installments, and the statute of limitations bars recovery only of those installments due over five years before [the lessor] filed suit on December 28, 2001.” 852 So.2d at 928.

Here, commercial lessor Mr. Tanner also chose to sue after the lease agreement’s expiration date of October 24, 1994, filing his initial complaint on September 4, 2002, almost eight years postexpiration. According to the lease agreement, monthly payments were due in advance on the twenty-fifth of the month. Hence, the last payment due during the lease term was that of September 25, 1994. Mr. Tanner could have sued against this installment, assuming that it had not been paid by the Hamiltons, at the latest on September 25, 1999. See § 95.11(2)(b) (providing that an action on an obligation founded on a written instrument has a statute of limitations of five years); Holiday Furniture, 852 So.2d 926. For successive earlier installments, the statute of limitations expired one month earlier, and so on. As such, we must conclude that the statute of limitations precludes a claim against Mrs. Hamilton for any rents and taxes due under the October 1988 — October 1994 term of the lease agreement.

In reaching this conclusion, we also point out that Mr. Tanner’s rejuvenation argument is unavailing. Mr. Tanner argues that Mrs. Hamilton, by writing three monthly checks in 2000-2002, ratified her contractual obligation under the written lease agreement. To the extent that “[l]ease agreements require installment payments, and each failure to pay an installment constitutes an individual breach,” Holiday Furniture, 852 So.2d at 928, Mrs. Hamilton’s writing of a check for the January 2000 rent and tax payment, for example, did not somehow resurrect her obligation to make payments for each unpaid monthly rent and tax obligation of the 1988-1994 lease term.

Because Mr. Tanner’s claim as to lease term rents and taxes is barred by the statute of limitations, we reverse the court’s award of $56,130.10 in lease damages.

Mr. Tanner’s cross-appeal

In his cross-appeal, Mr. Tanner challenges the trial court’s denial of a damages award for unpaid rent and taxes that accrued after the expiration of the lease while the Hamiltons continued to occupy the property. The resolution of this issue depends on the specific nature of the arrangement under which the Hamiltons remained on the property. Mr. Tanner argues that the Hamiltons were “holdover tenants,” that is, tenants at sufferance, and therefore obligated to abide by the terms of the original lease agreement. Mrs. Hamilton argues that the Hamiltons remained in the property under an oral lease agreement between her late husband (but not her) and Mr. Tanner, such that she is not liable for postexpiration rents and taxes.

Mr. Tanner relies on section 83.04, Florida Statutes, which reads:

Holding over after term, tenancy at sufferance, etc. — When any tenancy created by an instrument in writing, the term of which is limited, has expired and the tenant holds over in the possession of said premises without renewing the lease by some further instrument in writing then such holding over shall be construed to be a tenancy at sufferance. The mere payment or acceptance of rent shall not be construed to be a renewal of the term, but if the holding over be continued with the written consent of the lessor then the tenancy shall become a tenancy at will under the provisions of this law.

Mr. Tanner argues that whatever the pos-texpiration oral arrangement that existed between the parties may have entailed, there was no written renewal of the lease agreement. Therefore, he argues, pursuant to section 83.04, the postexpiration arrangement between the parties was a tenancy at sufferance. Furthermore, “the tenancy arising from the tenants holding over with the consent of the landlord is presumed to be upon the same covenants and terms as the original lease so far as they are applicable to the new tenancy.” Wingert v. Prince, 123 So.2d 277, 279 (Fla. 2d DCA 1960) (citing Rosamond v. Mann, 80 So.2d 317 (Fla.1955)). As such, Mr. Tanner argues, Mrs. Hamilton is liable for unpaid rent and taxes that accrued during the postexpiration period because the terms of the original lease agreement, which Mrs. Hamilton had signed, still applied. Essentially, Mr. Tanner is arguing that the statutory tenancy at sufferance should supersede any oral arrangement that may have been reached between the parties.

Mrs. Hamilton argues that the arrangement under which the Hamiltons remained in the commercial property after the expiration of the lease agreement was an oral lease between her husband and Mr. Tanner to which she was not a party. Various portions of the testimony presented at trial support an oral arrangement either between both Hamiltons and Mr. Tanner, or between Mr. Hamilton alone and Mr. Tanner. In its oral findings at the end of the trial, the court resolved the inconsistency in a somewhat indirect way, finding that any arrangement that may have existed postexpiration was between Mr. Hamilton and Mr. Tanner but did not involve Mrs. Hamilton:

Mr. Hamilton may have agreed to a lot of things, but there is no evidence that [Mrs. Hamilton] agreed to anything other than the obligations under this lease for this term of time....
From [the expiration of the lease agreement] on, it was between Mr. Hamilton and Mr. Tanner as far as I know, and [Mr. Tanner] filed a voluntary dismissal as to Mr. Hamilton, and that ended any obligation he had....
I’m not holding [Mrs. Hamilton] responsible for any agreement that may have been reached between Mr. Hamilton and Mr. Tanner subsequent to [the expiration of the lease agreement].

The trial court’s findings raise two issues: whether there actually was an oral lease between Mr. Hamilton and Mr. Tanner and, if so, whether the existence of an oral lease, as opposed to a written instrument, took the tenancy out of section 83.04 such that Mrs. Hamilton did not become a tenant at sufferance. “[A]n oral agreement to occupy property and to pay rent in return qualifies as a ‘lease[.]’” Keeton Corr., Inc. v. RJ & RK, Inc., 858 So.2d 349, 351 (Fla. 1st DCA 2003).

The testimony on which the trial court apparently relied in determining that there was an arrangement between only Mr. Hamilton and Mr. Tanner included the following portions of the cross-examination of Mr. Tanner by Mrs. Hamilton’s counsel:

Q. But you didn’t [request surrender of the premises] in October of '94, did you—
A. No, because—
Q. — at the end of the lease?
A. — we had an oral agreement. Unfortunately, I’m from the school that my word is my bond. Okay? A handshake to me is everything. And when Ralph Hamilton was alive and when he was in his right frame of mind, if he said something, buddy, it was the law. Okay? And that’s the way we operated. Okay? So law or no law, I’m telling you the truth.
Q. And the rent that you say is owed you is based upon this lease option agreement or your — some type of verbal agreement between you—
A. Yes.
Q. — and Ralph [Hamilton]?
A. Yes.
Q. And that verbal agreement we don’t know what it is, or do we?
A. Yes. I know.
Q. What is your understanding of the verbal agreement?
A. He would pay me my rent on time. He would pay the taxes for the property, and he could have — and have full lease of the property.
Q. So this was the agreement between you and Ralph to pay the rent on time and to pay the taxes.
A. Yes, sir, as long as he was in the property using the property.

Additionally, in answer to a question as to whether she had made any agreement with Mr. Tanner after the expiration of the lease, Mrs. Hamilton testified that she and Mr. Tanner never spoke about business at all.

Although the trial court failed to make a definitive ruling as to the existence of an oral lease, in light of the testimony quoted above and the documentary evidence received by the court, we conclude that the only evidence on which the court could have relied to determine that “any agreement” was between Mr. Hamilton alone and Mr. Tanner compels us to conclude that the trial court made an implicit finding that the arrangement was an oral lease — an “oral agreement to occupy property and to pay rent in return,” Keeton Corr., 858 So.2d at 351. We also conclude that Mr. Tanner’s testimony makes clear that Mr. Hamilton continued to operate his business on the leased premises not as a holdover tenant but rather pursuant to an oral agreement between Mr. Tanner and Mr. Hamilton. The trial court’s finding that Mrs. Hamilton was not a party to this oral agreement and, therefore, has no legal obligation under the agreement is fully supported by Mr. Tanner’s testimony. Mr. Tanner’s testimony that he was operating under an oral lease with Mr. Hamilton alone forecloses his claim that the tenancy was a holdover under section 83.04 such that Mrs. Hamilton is liable for any unpaid rent as a tenant at sufferance. And, Mr. Tanner’s decision to forego pursuing his claim against the party who agreed to pay the rent, Mr. Hamilton via his estate, does not give rise to any obligation on Mrs. Hamilton’s part. The trial court’s denial of damages to Mr. Tanner relative to the postexpiration period must therefore be affirmed.

In conclusion, we reverse the $56,130.10 damages award to Mr. Tanner, and we affirm the trial court’s denial of damages to Mr. Tanner for rent and tax payments that accrued during the period following the expiration of the lease.

Reversed in part and affirmed in part.

SILBERMAN and LaROSE, JJ., concur.

      . Sales taxes were payable to Mr. Tanner along with rent. The Hamiltons were responsible for paying real property taxes on their own, but Mr. Tanner apparently made the payments and had, or attempted to have, the Hamiltons reimburse him. The terms of the agreement related to the purchase option are not relevant here.

      . This pleading was styled Second Amended Complaint and Counterclaim.

      . Documentary evidence received by the court indicates that Mr. Tanner consistently applied rent checks received to the current month, not to past months for which rent had not been paid.

      . The text of section 83.04 is the same for all years relevant to this case.

      . Mr. Tanner also argues that Mrs. Hamilton should be bound by her pleadings. In her counterclaim, quoted above, Mrs. Hamilton acknowledged that "[Mr. Tanner] and Defendants entered into the oral agreement.” At trial, however, Mrs. Hamilton proceeded on a theory that only Mr. Hamilton entered into the oral agreement with Mr. Tanner. In our review of the record we could not locate any statement of objection by Mr. Tanner to this change of theory, and Mr. Tanner does not identify such an objection in his brief. In the absence of an objection, Mrs. Hamilton was permitted to attempt to demonstrate the validity of the theory. See Fla. R. Civ. P. 1.190(b) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues...." (Emphasis added.)); Woodard v. Armenian Cultural Ass’n of Am., 724 So.2d 669, 671 (Fla. 4th DCA 1999) (plaintiff adduced evidence at trial that she was not standing on defendant's property after alleging in the complaint that she was; because the defendant "failed to object to this evidence on the basis that it was outside the scope of the pleadings, the parties tried the issue by implied consent and the amendment of the ... complaint was not necessary”).

      . An oral lease, of course, raises the possibility of the Statute of Frauds. However, "an oral lease pursuant to which rent is payable monthly is deemed to be a month-to-month tenancy at will. § 83.01, Fla. Stat. (1997). Such a lease does not violate the statute of frauds merely because it continues in effect for more than a year.” Mangum v. Susser, 764 So.2d 653, 655 (Fla. 1st DCA 2000).


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Cyntwynet SAUNDERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5586.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2007.
   CASANUEVA, Judge.

Cyntwynet Saunders appeals the summary denial of her motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Her motion raised five grounds, and we affirm the denial of four claims without comment. As to her contention that her counsel was ineffective for failure to investigate and call alibi witnesses, we hold that the attachments to the postconviction court’s order do not conclusively refute this claim and remand for further proceedings.

Ms. Saunders was charged with and convicted of three counts of sale of cocaine and three counts of possession of cocaine for offenses occurring on three separate days in February 2003. She was sentenced to concurrent five-year prison terms on all counts. Her direct appeal was affirmed by this court, following which she filed this timely motion for postconviction relief.

At trial, the State attempted to prove that Ms. Saunders, allegedly known as “Little Lisa” on the street, sold cocaine to an undercover detective who used a confidential informant to set up controlled buys. During proceedings immediately prior to trial, Ms. Saunders’ counsel reported to the court that she was the third attorney on this case, that she had been appointed approximately ninety days previously, and that she was not prepared to go to trial. A prior attorney had filed a notice of alibi, which the State contested as procedurally insufficient. The State attempted to exclude the testimony of an alibi witness known as Barbara, the manager of the Days Inn motel at which Ms. Saunders was employed. Defense counsel stated that Barbara, whom she had tracked down at home and interviewed only a day prior to trial, would verify that her client was at work when the undercover transactions allegedly occurred. The trial court ultimately allowed Barbara to testify.

In her postconviction motion, Ms. Saunders alleged that her attorney was ineffective for failing to investigate and call five additional alibi witnesses who were available for trial and who would have testified that she was actually working at the Days Inn on the dates alleged in the information. In accordance with the State’s response, the postconviction court denied this claim, attaching transcript excerpts demonstrating that Barbara did testify as an alibi witness at trial and that these additional witnesses would have added only cumulative testimony.

We have examined the attachments to the postconviction court’s order and find that they do not conclusively refute Ms. Saunders’ assertion. Although Barbara did supply an alibi for Ms. Saunders, her testimony raised some questions and was diminished by the fact that one of the days for which she was providing an alibi was actually her day off from work. The defense attorney attempted to strengthen the evidence by eliciting Barbara’s further declaration that she would always go to work, even on her days off, particularly on Mondays. She would monitor employees all day long as if it were a regular work day. She did not clock in on her days off, and she would leave it to an assistant manager to report the employees’ work hours, so the Days Inn records would not support her assertion that she was there on her day . off. Thus, Barbara did not provide a particularly strong alibi for one of the days in question, and her assertions might have caused the jury to question her credibility.

As it stood, Barbara’s alibi testimony could have been bolstered with the corroborative testimony of another witness who was actually scheduled to and did work at the Days Inn on the day of the offense. In Currelly v. State, 732 So.2d 449, 450 (Fla. 2d DCA 1999), this court reversed the summary denial of a postconviction claim that trial counsel was deficient for failure to call witnesses who would corroborate another witness’s exculpatory testimony. Cf. Harris v. State, 804 So.2d 457, 458 (Fla. 4th DCA 2001) (holding that because there was a suggestion of bias in the alibi witness’s testimony, an assertion that trial counsel should have called another alibi witness for corroboration was facially sufficient).

Here, although the postconviction court did not reject the claim as facially insufficient, the attachments to the record do not conclusively refute Ms. Saunders’ claim that she was prejudiced by her counsel’s failure to present additional alibi witnesses. This testimony came after Ms. Saunders’ trial counsel lamented to the court that she was being forced to take this case to trial because of its age and that she feared that “we’re looking at a 3.850 in the making” if forced to proceed without an alibi witness. She described her last-minute attention to the alibi defense. The attachments to the postconviction court’s order do not refute Ms. Saunders’ claim that additional alibi witnesses could have strengthened Barbara’s testimony and raised reasonable doubt about whether Ms. Saunders could have been physically present for the narcotics transactions that led to her arrest and conviction. Given that her entire defense focused on her claim that law enforcement had the wrong person, it is impossible to conclude, as a matter of law, from the attachments to the posteonvietion court’s order, that she was not prejudiced by counsel’s failure.

Accordingly, we reverse the order denying postconviction relief on ground three and remand for an evidentiary hearing.

KELLY and CANADY, JJ„ Concur.


author: FLETCHER, Senior Judge.

text:
    TURNBERRY COURT CORPORATION, a Florida corporation, as general partner of Porto Vita, Ltd., a Florida limited partnership, and Green Development Associates, Inc., as general partner of Porto Vita, Ltd., a Florida limited partnership, Appellants, v. Dr. Francesco BELLINI, Marissa Bellini, and Rocabe, Inc., a Canadian corporation, Appellees.
    No. 3D06-2198.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Katz, Barron, Squitero, Faust, Terzo, Friedberg, Grady, English & Allen and Robert C. Grady, Ft. Lauderdale, for appellants.
    Derrevere, Hawkes & Black, Jupiter, Shirley Jean McEachern, Naples, and Jon D. Derrevere, Jupiter, for appellees.
    Before GERSTEN, C.J., and SUAREZ, J. and FLETCHER, Senior Judge.
   FLETCHER, Senior Judge.

Turnberry Court Corporation and Green Development Associates, Inc., as general partners of Porto Vita, Ltd., (hereinafter Porto Vita) appeal from a final judgment entered after a jury verdict in an action for breach of statutory implied warranties on a new condominium. We affirm the judgment entered below.

Porto Vita was the owner/developer of the South Tower of Porto Vita, a residential condominium complex in Aventura, Florida. On March 22, 2000, Dr. Frances-co Bellini and his wife, Marissa contracted to purchase a luxury penthouse unit from Porto Vita. Both prior to and after the closing, the Bellinis complained of problems with the unit’s air conditioning system. These problems included leakage, dust accumulation, abnormal noise, and uneven air flow temperatures. An inspection revealed that the problems were caused by several deficiencies in the installation of the system such as the use of concealed space as part of the duct system; locating the air handling unit in a closet; unprotected fibrous glass ductwork in the mechanical room; inadequate drain pans under the air conditioning unit and the hot water heater; no return ductwork; failure to seal the mechanical rooms and plenums; substandard air filtration module; failure to install balancing dampers; and insufficient ventilation rate.

The Bellinis and Rocabe, Inc. (plaintiffs) filed the instant action against Porto Vita asserting three theories of liability: Count I — Breach of Statutory Implied Warranty of Fitness and Merchantability under Florida Statute Section 718.203; Count II — Breach of Contract; and Count III — Violation of the South Florida Building Code. The plaintiffs dismissed Count III and the case was tried on Counts I and II. The jury returned a verdict in the amount of $31,918 in favor of the plaintiffs on Count I and for the defendants on Count II. The plaintiffs initially appealed the judgment as to Count II, but later voluntarily dismissed their appeal. The defendants cross-appealed the judgment as to Count I; this is the appeal presently before us.

Porto Vita’s principal argument on appeal is that the trial court erred in entering judgment in favor of the plaintiffs because the alleged defects are outside the scope of section 718.203, Florida Statute (2005), which sets forth the developer’s statutorily implied warranties. In particular, it contends that the claim is barred by the language in subsection (l)(e) which excludes “mechanical elements serving only one unit.” A short review of the history of Section 718.203 may assist us in the proper interpretation of the statute.

Florida courts traditionally applied the principle of caveat emptor or “buyer beware” to transactions involving real estate. See e.g., Camardella v. Courtright, 126 Fla. 536, 171 So. 225 (1936); Gonzalez v. Patane, 234 So.2d 8 (Fla. 3d DCA 1970). This doctrine places the duty to examine and judge the value and condition of the property solely on the buyer and protects the seller from liability for any defects. Haskell Co. v. Lane Co., Ltd., 612 So.2d 669 (Fla. 1st DCA 1993). In the landmark case of Gable v. Silver, 264 So.2d 418 (Fla.1972), the Florida Supreme Court abandoned the doctrine of caveat emptor in favor of implied warranties of fitness and merchantability on the purchase of new condominiums from builders. See also Johnson v. Davis, 480 So.2d 625 (Fla.1985) (holding that sellers, whether of new or used homes, have a duty to disclose to the buyer facts materially affecting the value of the property which are not readily observable). The holding in Gable was first codified in 1974 as section 711.65, now section 718.203.

The warranties are part of the much larger statutory scheme adopted by Florida to regulate condominiums known as the Condominium Act, sections 718.101 through 718.622 of the Florida Statutes. As recognized in Rogers & Ford Construction Corp. v. Carlandia Corp., 626 So.2d 1350, 1352 (Fla.1993), the condominium is a hybrid estate in property law completely subject to the Legislature’s control and regulation. A condominium owner obtains title to a unit, together with an undivided share in common elements, i.e., all portions of the condominium property not included in the units. § 718.103(8), (11), Fla. Stat. (2005). Although divided into seven subsections, only subsection (1) of section 718.203 directly applies to developers.

(1) The developer shall be deemed to have granted to the purchaser of each unit an implied warranty of fitness and merchantability for the purposes or uses intended as follows:
(a) As to each unit, a warranty for 3 years commencing with the completion of the building containing the unit.
(b) As to the personal property that is transferred with, or appurtenant to, each unit, a warranty which is for the same period as that provided by the manufacturer of the personal property, commencing with the date of closing of the purchase or the date of possession of the unit, whichever is earlier.
(c) As to all other improvements for the use of unit owners, a 3-year warranty commencing with the date of completion of the improvements.
(d) As to all other personal property for the use of unit owners, a warranty which shall be the same as that provided by the manufacturer of the personal property.
le) As to the roof and structural components of a building or other improvements and as to mechanical, electrical, and plumbing elements serving improvements or a building, except mechanical elements serving only one unit, a warranty for a period beginning with the completion of construction of each building or improvement and continuing for 3 years thereafter or 1 year after owners other than the developer obtain control of the association, whichever occurs last, but in no event more than 5 years.
(f) As to all other property which is conveyed with a unit, a warranty to the initial purchaser of each unit for a period of 1 year from the date of closing of the purchase or the date of possession, whichever occurs first.

§ 718.203, Fla. Stat. (2005).

The statute classifies the type of property involved, assigning to each a different warranty period. The classifications are: (a) the unit; (b) the personal property transferred with each unit; (c) all other improvements for the use of unit owners; (d) all other personal property for the use of the unit owners; (e) the roof and structural components, and mechanical, electrical and plumbing elements serving a building (rather than a single unit); and (f) all other property conveyed with a unit. Clearly, subsections (a), (b) and (f) are primarily concerned with the residential unit itself while (c), (d) and (e) pertain to the common elements of the condominium complex. This arrangement comports with the aforementioned twofold nature of condominium ownership.

Porto Vita would have us superimpose another arrangement, a general versus a specific or special division so as to benefit from the rule of statutory construction that a special statute controls over a general statute. They argue that subsection (e), because it specifically mentions mechanical elements, should control over the remaining general provisions. Such a reading, however, contravenes another well-accepted precept of statutory construction which requires reconciliation among seemingly disparate provisions of a statute so as to give effect to all its parts. Woodgate Dev. Corp. v. Hamilton Inv. Trust, 351 So.2d 14, 16 (Fla.1977). The clear objective of the statute is to cover the complete unit and all common elements. The developer’s warranties extend to personal property transferred with the unit, which can include such items as a refrigerator, stove or ceiling fan. Therefore, it is absurd to conclude that the legislature purposely intended to exclude from the warranties such an integral part of a luxury penthouse condominium as is a central air conditioning system. Consequently, when examined in light of both the nature of the ownership rights of a condominium and the original and overall purpose of providing home buyers with a warranty that the new condominium they are buying meets reasonable expectations, section 718.203(1) must be read to include the claim presented by the plaintiffs here.

As indicated above, this action was brought by both the Bellinis and Rocabe. We agree with appellants, that Rocabe, Inc., as the holder of legal title to the condominium, is the unit owner entitled to damages. § 718.103(28), Fla. Stat. (2005) (defining owner of a unit as the “record owner of legal title to a condominium parcel”). Therefore, we affirm the judgment entered in favor of Rocabe, Inc., but reverse the judgment in favor of the Bellinis.

Affirmed in part; reversed in part.

      . The Bellinis assigned their rights under the purchase agreement to Roca Inc., a Canadian corporation, which at the closing, received title to the condominium. One year after closing, a corrective warranty deed was recorded substituting Rocabe, Inc., for Roca, Inc. The Bellinis are the majority owners of Rocabe, Inc.

      . With the added wrinkle of the statutorily mandated transfer of control of the condominium association. See § 718.301, Fla. Stat. (2005).


author: ROTHENBERG, Judge.

text:
    The CHILDREN’S TRUST OF MIAMI-DADE COUNTY, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
    No. 3D06-1988.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    R.A. Cuevas, Jr., Acting Miami-Dade County Attorney, and Maria Arista-Volsky and Brenda Kuhns Neuman, Assistant County Attorneys, for appellant.
    Robert B. Button, Assistant General Counsel, Department of Management Services, Division of Retirement, Tallahassee, for appellee.
    Before GERSTEN, C.J., and CORTINAS and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The Children’s Trust of Miami-Dade County (“The Children’s Trust”) appeals a final order of the Secretary of the Department of Management Services, Division of Retirement (“Agency”), denying several employees past service credit for Florida Retirement System (“FRS”) benefits and rejecting a Recommended Order by the Division of Administrative Hearings (“DOAH”), which had recommended that The Children’s Trust was eligible for membership in FRS while under an employee leasing agreement. We affirm the Agency’s final order.

On July 23, 2003, The Children’s Trust, an independent special taxing district in Miami-Dade County duly created to provide children’s services, contacted the Agency to enroll its employees for FRS retirement benefits. On September 5, 2003, The Children’s Trust entered into an agreement with ADP TotalSource Services, Inc., (“TotalSource”), whereby Total-Source agreed to provide The Children’s Trust with payroll, health insurance, life insurance, short and long-term disability insurances, and dental and vision coverage (“Agreement”). TotalSource, however, did not provide any retirement benefits to the employees of The Children’s Trust.

Sometime in early September 2005, The Children’s Trust submitted an application for enrollment in the FRS to the Agency. After reviewing the application and the Agreement, the Agency denied The Children’s Trust’s enrollment application, reasoning that because the Agreement provided that the employees were under the direction and control of TotalSource, the employees were employees of a private entity and thus, ineligible for FRS benefits. Based on this determination, The Children’s Trust terminated the Agreement with TotalSource and subsequently sought human resource services through a different personnel company, AlphaStaff, because as employees of AlphaStaff, the employees could receive FRS benefits.

After the Agency approved the new agreement with AlphaStaff, The Children’s Trust submitted the necessary paperwork and enrolled in FRS. The Agency approved The Children’s Trust’s application for FRS benefits, which the employees began to receive on May 1, 2004. When The Children’s Trust also sought to purchase past service credit for the period of time while under contract with Total-Source, the Agency denied the request. The Children’s Trust sought an evidentia-ry hearing and the matter was forwarded to the DOAH.

The Administrative Law Judge (“ALJ”) entered an order recommending that the Agency allow The Children’s Trust to purchase past service credit for the seven month period while under contract with TotalSource. The Agency subsequently entered an order accepting all of the ALJ’s findings of fact but rejected the ALJ’s ultimate conclusion that The Children’s Trust was entitled to purchase past service credit for the period of time it was under contract with TotalSource. The Children’s Trust appeals the Agency’s order. We affirm the Agency’s order as we conclude that TotalSource was the employer during this seven-month period and The Children’s Trust was not the employer as a matter of law.

TotalSource is a licensed employee leasing company pursuant to Part XI of Chapter 468, Florida Statutes (2004). Section 468.520(4), Florida Statutes (2004), defines “employee leasing” as “an arrangement whereby a leasing company assigns its employees to a client and allocates the direction of and control over the leased employees between the leasing company and the client.” § 468.520(4), Fla. Stat. (2004). Furthermore, section 468.529(1), Florida Statutes (2004), specifies that “[a] licensed employee leasing company is the employer of the leased employees-” § 468.529(1), Fla. Stat. (2004). Consequently, based on the employee leasing agreement entered into between The Children’s Trust and TotalSource, we find, as a matter of law, that TotalSource, as the employee leasing company, was the employer of the employees, not The Children’s Trust. As Total-Source is a private entity not eligible for FRS benefits, we agree with the Agency’s determination that The Children’s Trust is not eligible to purchase past service credit for FRS benefits. We, therefore, affirm the Agency’s final order.

Affirmed.


text:
    Jerome WATERS, M.D., Appellant, v. DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee.
    No. 3D05-2546.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Arthur Joel Berger, Miami, for appellant.
    Wings S. Benton, for appellee.
    Before GERSTEN, C.J., and SUAREZ, J., and FLETCHER, Senior Judge.
   FLETCHER, Senior Judge.

Jerome Waters, M.D., appeals from a final order of the Department of Health, Board of Medicine (the Department) which revoked his license to practice medicine. Because the order is supported by competent substantial evidence and does not depart from the essential requirements of law, we affirm.

Three administrative complaints were filed against Dr. Waters in connection with his treatment of six patients between December 2000 and May 2002. The complaints alleged violations of sections 458.331(l)(m), (q) and (t), Florida Statutes (2001) which allow disciplinary action for failing to keep proper medical records, prescribing controlled substances other than in the course of the physician’s professional practice, and failing to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician. The complaints were consolidated and heard before an administrative law judge who issued a detailed recommended order setting forth both factual findings and legal conclusions.

The law judge concluded there was clear and convincing evidence of Dr. Waters’ violation of subsections (m) and (t) of the statute, but recommended that the charges of violation as to subsection (q) be dismissed. The law judge believed that the appropriate interpretation of subsection (q) was unsettled because of two conflicting prior orders of the Department, one seeming to require proof that the accused doctor was engaged in an illicit activity when prescribing the drugs in question while the other merely required proof that the doctor prescribed the drugs inappropriately or in excessive or inappropriate quantities. Notwithstanding his conclusions as to subsection (q), the judge recommended revocation of Dr. Waters’ license. The Department subsequently adopted the law judge’s recommended order with one exception. It rejected the judge’s legal position with regard to the subsection (q) charges, concluding as a matter of law that Dr. Waters violated this subsection.

Our review of the Department’s action is governed by section 120.68, Florida Statutes (2006). The Department’s ruling may be set aside only upon a finding that it is not supported by substantial competent evidence in the record or that there are material errors in procedure, incorrect interpretations of law, or an abuse of discretion. See § 120.68(7), Fla. Stat. (2006). Based on a careful review of the record, we conclude that competent substantial evidence supports the factual findings of both the law judge and thu Department with regard to violations of section 458.331(1)(m), (q) and (t), Florida Statutes. Further, we hold that the Department’s rejection of the law judge’s interpretation of the requirements of subsection (q) is within the agency’s delegated range of discretion. See e.g., United Grand Condo. Owners, Inc. v. Grand Condo. Ass’n, 929 So.2d 24, 25 (Fla. 3d DCA 2006) (“An administrative agency’s interpretation of a statute which it is legislatively charged with administering is entitled to great weight and should not be overturned unless clearly erroneous.”) Accordingly, we affirm the order of the Department that revoked Dr. Waters’ license to practice medicine.

Affirmed.

      . Section 458.331 reads, in pertinent part:
      (l) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

      (m) Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed physician or the physician extender and supervising physician by name and professional title who is or are responsible for rendering, ordering, supervising, or billing for each diagnostic or treatment procedure and that justify the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

      (q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician’s professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his or her intent.

      (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph. As used in this paragraph, repeated malpractice includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $25,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, gross malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.
      § 458.331(1), Fla. Stat. (2001).


author: LAGOA, Judge. RAMIREZ, J.,

text:
    Raul CARRILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-975.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   LAGOA, Judge.

The Defendant, Raul Carrillo, appeals a conviction and sentence for first-degree murder with a firearm and aggravated stalking with a firearm. We affirm.

I. FACTUAL HISTORY

On August 2, 2000, a grand jury indictment charged Defendant with first-degree murder with a firearm and aggravated stalking with a firearm.

At trial, the State elicited the testimony of various witnesses to prove beyond a reasonable doubt that Defendant killed his girlfriend after she ended their relationship. The victim’s brother testified that the night before she was murdered he overheard a telephone conversation during which his sister ended her relationship with the Defendant. Two eyewitnesses also testified that they heard gun shots immediately before the victim was found in her car and that a man who looked like Defendant was seen near the crime scene. These same witnesses identified Defendant’s green pick-up truck as having been near the crime scene.

The State further presented Defendant’s video-taped confession in which he admitted shooting the victim and disposing of the gun, a .32 caliber, in a canal. Defendant’s cell mate also testified that Defendant admitted to him that he killed the victim and further told him where he had disposed of the gun.

The State presented testimony from Detective Mike Melgarejo, the lead detective, who testified that the .32 caliber gun was found exactly where Defendant had told his cell mate it was. The State also presented expert testimony from Thomas Fa-dul, supervisor of Miami-Dade Police Department’s forensic identification section, that the gun found in the canal was the same gun that fired the casings found near the victim’s body.

The jury found Defendant guilty of first-degree murder with a firearm and aggravated stalking with a firearm.

II. JURY SELECTION

On appeal, Defendant claims that the trial court erred in striking a prospective male juror over the objection of the defense without making a finding that the reason proffered by the State was genuine. We find that no new trial is warranted as the State volunteered a gender-neutral reason for the strike, and the trial court implicitly ruled that such reason was genuine. Accordingly, we affirm.

During the jury selection phase, the State challenged eight jurors for cause, four men and four women. The State also sought to exercise nine peremptory challenges against eight men and one woman. Two of the peremptory challenges were used on jurors the State had unsuccessfully sought to remove for cause. This appeal relates to a single prospective juror, Paul Soule, against whom the State sought to use one of its peremptory challenges.

During voir dire, the trial court asked the jury panel whether “yourself, close friend, or family member [has] ever been a victim of crime.” Mr. Soule stated that he had been a victim of auto theft and that a close friend had been a victim of armed robbery. Following Mr. Soule’s answer, the trial court further inquired whether “any of those incidents [would] affect your ability to be fair and impartial in this case.” Mr. Soule responded that he couldn’t answer the question, but noted that “I honestly do not believe that those life experiences would affect my ability in this case.”

Following this exchange, Mr. Soule informed the trial court that he had a question regarding the death penalty:

MR. SOULE: I do have a question, your Honor.
THE COURT: Okay.
MR. SOULE: You mention that this is a murder trial and that the death penalty is not on the table. Why is that, sir?
THE COURT: Because it is.
MR. SOULE: We’ll never know.
THE COURT: No, you’ll never know.
MR. SOULE: I don’t mind if you answer the question.
THE COURT: The State of Florida does not seek the death penalty in this case. It’s as simple as that....

When the State moved to strike Mr. Soule, the defense objected and the following exchange ensued:

[PROSECUTOR]: Strike No. 3.
THE COURT: Number 3?
[PROSECUTOR]: Yes.
[DEFENSE COUNSEL]: Juror 3. Your Honor, I object. He’s a man. She wants to get more women on the jury. And he’s been sitting there since we began and there is absolutely no answer he gave that would even hint to be anything other than an excellent juror. He was mature and very experienced.
THE COURT: Yeah. But he’s not part of any suspect class for which to raise any Neil/Slappy Melbourne inquiry.
[PROSECUTOR]: Judge, just for the record, he actually affirmatively asked why the death penalty is not on the table, he muttered under his breath in response thereto, which I noted. He also—
[DEFENSE COUNSEL]: What was his — I didn’t hear his response.
THE COURT: Nobody here did.
[PROSECUTOR]: And about the convicted felon testifying.
[DEFENSE COUNSEL]: I’m sorry, what was the last thing?
[PROSECUTOR]: The court even asked him just for the record.
[DEFENSE COUNSEL]: What was that about? What was the last one? ...
THE COURT: That he muttered under his breath on the response to the death penalty being put on the table. There wasn’t any from him.
[PROSECUTOR]: He actually raised it in front of the question of—
[DEFENSE COUNSEL]: What’s wrong with that? That’s a very legitimate question.
[PROSECUTOR]: It’s not a legitimate question for someone on this jury, Judge.
THE COURT: That’s the State’s eighth.

The jury composition ultimately included five males, seven females, and the alternates, a male and a female.

III. ANALYSIS

It is within the trial court’s discretion to determine the propriety of the reasons for a strike. “[T]he trial court’s decision turns primarily on a determination of credibility and will not be overturned on appeal unless clearly erroneous.” State v. Holiday, 682 So.2d 1092, 1094 (Fla.1996)(citing to Melbourne v. State, 679 So.2d 759, 764-65 (Fla.1996)). Based on our review of the entire voir dire record, we find no such error.

At the outset, we reject the State’s argument that the defense failed to make a sufficient objection because he failed to ask for a race or gender-neutral reason for the strike. “A simple objection and allegation of racial discrimination is sufficient, e.g., ‘I object. The strike is racially motivated.’ ” Melbourne, 679 So.2d at 764 n. 2. See also Whitby v. State, 933 So.2d 557 (Fla. 3d DCA 2006)(recognizing that a Neil inquiry is required when counsel simply objects to a peremptory challenge, identifies that the juror is a member of a distinct racial or ethnic group, and requests an inquiry). In the instant case, defense counsel stated: “I object. He’s a man. She wants to get more women on the jury.” Counsel’s objection was clearly directed to the State’s strike of juror 3 on the basis of his gender and therefore sufficient to mandate an explanation for the strike.

On appeal, the Defendant argues that the trial court’s statement that men are not a protected class constitutes prima fa-cie proof that the court never engaged in a genuineness analysis. We cannot agree. Despite the trial court’s off-the-cuff remark, the State offered a gender-neutral reason for the strike, and the trial court engaged in a discussion with counsel regarding the genuineness of the strike. Specifically, the State expressed its concerns with the juror’s question about the reason the State did not seek the death penalty, and the juror’s comment in response to a voir dire inquiry that a convicted felon is not a very reliable witness. While the trial court in the instant case was incorrect that men are not a suspect class, the State’s proffer of a gender-neutral reason for the strike and the ensuing discussion with the Court, affirmatively indicate that the trial court implicitly underwent a genuineness inquiry and found the State’s proffered reason to be non-pre-textual.

The Defendant would have us fashion a rule of law that whenever a trial court makes an incorrect statement of law, that misstatement cannot be corrected by fulfilling the court’s obligations under Neil, , Slappy, and Melbourne. We decline to so elevate form over substance. This Court has made it clear that “no magic words or incantations are required, and that substance must control over form. The trial court’s quest is not to create a perfect script, but to assure that peremptory challenges are not used to exclude persons from jury service for improper reasons.” Pringle v. State, 792 So.2d 533, 536 (Fla. 3d DCA 2001). See also Davis v. State, 691 So.2d 1180, 1183 (Fla. 3d DCA 1997). “A trial court’s genuineness inquiry involves consideration of factors which tend to show whether the proffered reason is pre-textual.” Scott v. State, 920 So.2d 698, 700 (Fla. 3d DCA 2006). In deciding this issue, courts have considered the following relevant circumstances: the makeup of the venire, prior strikes exercised against the same racial group, a strike based on a reason equally applicable to an unchallenged juror, or the singling out of a juror for special treatment. See Melbourne, 679 So.2d at 764, n. 8. Finally, a trial court’s decision on the ultimate issue of pretext tons primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous. Id. at 764-65.

Here, the record supports the State’s gender-neutral reason for the peremptory strike. The record demonstrates that the State sought to strike both women and men from the panel and that no other juror asked why the Defendant was not facing the death penalty. Because the trial court heard the State’s gender-neutral explanation, allowed defense counsel to argue its position, and then granted the peremptory strike, we are satisfied that a genuineness inquiry was indeed conducted. We, therefore, find no error in allowing the State to exercise a peremptory challenge to strike Juror Soule. Accordingly, we affirm Defendant’s conviction and sentence for first-degree murder with a firearm and aggravated stalking with a firearm. Affirmed.

LAGOA AND ROTHENBERG, JJ., concur.

RAMIREZ, J.,

(dissenting).

Because I cannot agree with the majority that the record supports a finding-by-implication as fulfilling step three of Melbourne’s pretextual analysis, I dissent.

The majority opinion first gives a factual history which would be very relevant if the case law allowed us to affirm based on harmless error. The defense in the ease, however, was not misidentification. Carrillo’s defense at trial was that he was not guilty of the aggravated stalking and that he was guilty of manslaughter, not first degree murder. On appeal, the only issue raised by Carrillo is whether the trial court erred when it allowed the State to strike a male juror, juror Soule, without making any finding as to whether the State’s proffered reason was genuine.

Before moving to strike prospective juror Soule, the State moved to strike prospective jurors Joseph Wiesen, Dennis McCue, Juan Montes, Paterno Escarilla, Mark McDaniel, Jeffrey Reyes, and Barry Snyder all male jurors. Carrillo objected to the strikes against prospective jurors Escarilla and Reyes. As to Escarilla, Carrillo challenged the State strike on the ground that, “He is a Latin.” The State proffered a race/gender neutral reason for the strike, asserting that the juror declared that a first-degree murder of premeditation requires some level of planning. The trial court stated, “The court finds that raise [sic] neutral not pretextural [sic] reason.” As to Reyes, Carrillo objected on the ground that “Mr. Reyes is Latin.” The State provided a reason for the strike submitting that “he’s an ordained minister.” The trial court again stated, “The court finds that a race neutral, gender neutral real and not pretextural [sic] reason.” After further argument, the judge again said, “... the court finds that an ample race, neutral, ethnic neutral reason for the exercise of a peremptory challenge.”

Prior to the State’s strike against juror Soule, Carrillo moved to strike prospective jurors Lanette Alexander, Nicole Am-brose, Nerva Gonzalez, Henry Payoute, Jose Jean-Pierre, Consuela Germain, Danielle Linton, Dorothy Guerra, Sophie Cazes and Sandra Eutsey. The State challenged three of Carrillo’s strikes, ail females: Gonzalez, Germain and Linton. As to Gonzalez, the State objected and asked for a race/gender neutral reason. After the defense proffered his reasons, the judge concluded that the reasons were pretextual. In fact, the trial court then stated:

... having identified Ms. Gonzalez as one of those categories of persons under Neil/Slappy and Melbourne for which pretextural [sic] race, gender, ethnic neutral reasons must be exercised, the Court has to make a determination as to whether or not the reason is genuine that it is gender and ethnic neutral and not pretextural [sic]....

The State, however, withdrew the challenge to the strike to Gonzalez, so the trial court excused her.

As to Germain, the State challenged Carrillo’s strike. After hearing the defendant’s reasons, the judge denied the peremptory strike stating, “The court finds that is not a raise [sic] gender, ethnic neutral reason. It is — the Court finds it’s not genuine and pretextural [sic].”

Finally, as to Linton, the State challenged Carrillo’s strike. At the trial court’s direction, defense counsel provided that “Ms. Linton is all of 26 years old” and that “she is very young....” The trial court noted that there was another juror the same age as Linton that Carrillo had not sought to strike. The judge then stated, “The Court denies the peremptory on Ms. Linton and does not find it to be a race neutral, gender neutral or genuine, but rather pretextural [sic].”

We then get to juror Soule when the State exercises a back-strike, leading to the following exchange:

[Prosecutor]: Strike No. 3.
[Court]: Number 3?
[Prosecutor]: Yes.
[Defense Counsel]: I didn’t hear her, I’m sorry.
[Court]: Three.
[Defense Counsel]: Juror 3.
Your Honor, I object. He’s a man. She wants to get more women on the jury. And he’s been sitting there since we began and there is absolutely no answer he gave that would even hint to be anything other than an excellent juror. He was mature and very experienced.
[Court]: Yeah. But he’s not part of any suspect class for which to raise any Neil/Slappy Melbourne inquiry.

This was error. The majority opinion recognizes the error in footnote 1. Since 1994, the case law has recognized that men are cognizable members of a gender class for the purposes of a Neil/Slappy/Melbourne inquiry. This trial took place in 2005.

Instead of correcting the judge’s misstatement of the law, the prosecutor stated:

[Prosecutor]: Judge, just for the record, he actually affirmatively asked why the death penalty is not on the table, He muttered under his breath in response thereto, which I noted. He also — ■
[Defense Counsel]: What was his — I didn’t hear his response.
[Court]: Nobody here did.
[Prosecutor]: And what about the convicted felon testifying.
[Defense Counsel]: I’m sorry, what was the last thing?
[Prosecutor]: The court even asked him just for the record.
[Defense Counsel]: What was that about? What was the last one? She’s not speaking up.
[Court]: That he muttered under his breath on the response to the death penalty being put on the table. There wasn’t any from him.
[Prosecutor]: He actually raised it in front of the question of ...
[Defense Counsel]: What’s wrong with that? That’s a very legitimate question.
[Prosecutor]: It’s not a legitimate question for someone on this jury, Judge.
[Court]: That’s the State’s eighth.

(emphasis added).

I agree with the majority when it quotes from Pringle v. State, 792 So.2d 533 (Fla. 3d DCA 2001), that as appellate judges, we should not require “a perfect script.” We should not demand “magic words or incantations.” However, the three-step process delineated in Melbourne v. State, 679 So.2d 759 (Fla.1996), is not rocket science. In fact, the trial judge here seemed to be very cognizant of its requirements by repeatedly making genuineness and pretex-tual findings when ruling on the objections as to jurors Escarilla and Reyes (the defense objections), and jurors Gonzalez, Germain and Linton (the State’s objections).

Neither the State’s brief nor the majority opinion cites a single precedent authorizing a finding-by-implication exception to the analysis delineated in Melbourne. My own research only found Young v. State, 744 So.2d 1077 (Fla. 4th DCA 1999), where the State sought to strike a juror who could not be understood. The trial court also stated that it had trouble understanding the juror. Id. at 1083. The appellate court concluded that the State’s race-neutral reason for striking the juror triggered step three analysis under Melbourne and that by opining on the record that the juror was hard to understand and allowing him to be peremptorily stricken for that reason, the trial court implicitly found that the prosecutor’s reason for striking the juror was genuine. Id.

In contrast, the trial court here stated unequivocally that juror Soule was not part of any suspect class, failing to satisfy step one of Melbourne. The fact that, “for the record,” the State nevertheless proffered race and gender neutral reasons does not indicate that the trial court was engaging in any further analysis. The trial court’s comments about not hearing the juror’s response, or muttering under his breath, does not remotely imply that the court (1) agreed with the reasons, (2) was receding from its position that Soule did not belong to a suspect class, or (3) found the reasons genuine and non-pretextual. Thus, I find no record support for the majority playing down the trial court’s “off-the-cuff remark” because it proceeded to engage in a discussion regarding the genuineness of the strike. The exchange with counsel, quoted in its entirety in both the majority opinion and my dissent, do not touch even tenuously on whether the strike was pretextual.

Our situation is closer to Simmons v. State, 940 So.2d 580 (Fla. 1st DCA 2006) than Young. In Simmons, the State exercised peremptory challenges as to three of four prospective African-American jurors. Id. at 581. When the defense asked the State for a race-neutral reason challenging juror Campbell, the State responded that “her husband is a law enforcement officer,” to which the trial court added, “at Baker Correctional.” Id. The defendant argued that the stated reason might give the defense a good reason to move for a peremptory strike, but not the State. Id. The trial court answered, “I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.” Id.

The Simmons court concluded that the trial judge’s reference to a race-neutral reason was insufficient to demonstrate that the trial court exercised its duties pursuant to Melbourne:

The issue in this case turns on the third step: whether the state’s explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not pretext. In deciding this issue, the courts have considered the following relevant circumstances: the racial makeup of the venire, prior strikes exercised against the same racial group, a strike based on a reason equally applicable to an unchallenged juror, or the singling out of a juror for special treatment.

Id. at 582 (citations omitted). The First District Court of Appeal reversed because the record did not indicate that the trial court had reached step three of the Melbourne analysis. Id. at 583. The appellate court stated:

When the defense challenged the prosecution’s given reason to strike Ms. Campbell, the court merely stated “I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.” By focusing merely on the fact the State offered a seemingly race-neutral reason, and accepting that the prosecution’s reason for the strike may be solely for the benefit of the defense, it appears that the trial court bypassed the genuineness inquiry required in the Melbourne analysis.

Id. at 582-83.

The district court in Simmons then explained that the problem was exacerbated by the fact that the State’s reason for removing juror Campbell raised a question of genuineness by its very nature. Id. at 583. The fact that juror Campbell’s husband was a law enforcement officer appeared to favor the State. Id. While the reason was race-neutral on its face, further inquiry was required if the court was attempting to ascertain its genuineness. Id.

The set of facts in the case before us presents a stronger argument for reversal than Simmons. The trial court here did not even discuss whether the proffered reasons were race neutral. Equally important, the fact that juror Soule was concerned that the death penalty was not an option would appear to make him a juror favorable to the State, not the defense. More egregiously, we have the judge stating unambiguously that a male is not a member of a suspect class so as to even require a genuineness analysis. We certainly do not have the judge considering all the circumstances surrounding the strike of juror Soule. We have no indication that the judge considered the racial make-up of the venire, prior strikes exercised against the same group, a strike based on a reason equally applicable to an unchallenged juror, or the singling out of a juror for special treatment. On the contrary, it is clear that the State was systematically striking males from the venire.

Accordingly, as in Simmons, I am unable to conclude that, on this record, the trial court satisfied step three as outlined in Melbourne, 679 So.2d at 764. I would thus reverse and remand for a new trial.

      . Under Abshire v. State, 642 So.2d 542 (Fla.1994), men are cognizable members of a gender class for the purposes of a Neil inquiry. See Thompson v. State, 648 So.2d 323 (Fla. 3d DCA 1995); Preston v. State, 641 So.2d 169 (Fla. 3d DCA 1994).

      . State v. Neil, 457 So.2d 481 (Fla.1984).

      . State v. Sloppy, 522 So.2d 18 (Fla.1988).

      . Melbourne v. State, 679 So.2d 759 (Fla.1996).

      . Perhaps the majority feels as Judge Schwartz did in his specially concurring opinion in Pickett v. State, 922 So.2d 987 (Fla. 3d DCA 2005), where he stated that some "cases reduce the noble idea reflected in Neil and Batson, that peremptory challenges, like everything else in our justice system, may not be employed to effect a discriminatory purpose into a formalistic rite in which any misstep from the intricate choreography prescribed by the cases requires reversal." Pickett, 922 So.2d at 993. But we made clear in Alsopp v. State, 855 So.2d 695, 698 (Fla. 3d DCA 2003) that:
      Failure to conduct a Neil inquiry in this case therefore mandates reversal and remand for a new trial. See [State v.] Johans, 613 So.2d [1319,] at 1322 [(Fla.1993)](holding that "the proper remedy in all cases where the trial court errs in failing to hold a Neil inquiry is to reverse and remand for a new trial”); Vasquez v. State, 711 So.2d 1305, 1306 (Fla. 2d DCA 1998) (finding that the trial court committed reversible error in failing to conduct a Neil inquiry where the defendant had properly put the strike of a juror at issue).


author: WARNER, J.

text:
    Angela Hamilton KEEN, Appellant, v. FLORIDA SHERIFFS’ SELF-INSURANCE FUND, Appellee.
    No. 4D06-1599.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.
    Eric G. Belsky of Johnson, Letter & Belsky, Fort Lauderdale, and Eric H. Luekman of Eric H. Luckman, P.A., Boyn-ton Beach, for appellant.
    Ronald A. Mowrey, Stephen E. Mitchell and Rick A. Savage of Mowrey & Mitchell, P.A., Tallahassee, for appellee.
   WARNER, J.

The trial court entered summary judgment on appellant’s declaratory judgment action, concluding that appellee, Florida Sheriffs’ Self-Insurance Fund (“Fund”), had no duty to cover or defend appellant’s claim against the Sheriff of Indian River County for damages arising out of a sexual assault by one of the sheriffs employees. We agree with the trial court and affirm.

While appellant Angela Keen was incarcerated in the Indian River County Jail, Keen was sexually assaulted by Deputy Paul Harrison, the sheriffs deputy who supervised the jail trustees. Deputy Harrison used his position of authority to threaten and coerce Keen, and she believed that he could adversely affect her trustee status and release date if she declined his advances. He was criminally prosecuted for the incident, convicted, and sentenced.

Keen later filed suit against both the Sheriff and the deputy, asserting the following claims: (a) negligence by the Sheriffs Office in the operation of the Indian River County Jail; (b) statutory and vicarious liability of the Sheriffs Office for the alleged conduct of Deputy Harrison; and (c) a cause of action against both the Sheriff and Deputy Harrison under Title 42 United States Code section 1983 for violation of Keen’s civil and constitutional rights. As to Deputy Harrison, Keen alleged that he used his position to coerce her into performing sexual acts without her consent. Harrison notified the Fund of the lawsuit and requested a defense. The Fund refused, and Keen obtained a default against Harrison. Pursuant to an agreement between Keen and Harrison, Harrison consented to judgment against him and assigned to Keen any and all rights or claims he might have against the Fund.

Keen then filed the present declaratory judgment action against the Fund, seeking attorney’s fees and damages. She alleged that the Fund breached its obligations to Harrison by failing to provide a defense and coverage to him for the claims she made against him. She demanded entry of a judgment declaring the rights of the parties under the Fund Agreement.

The Fund moved to dismiss the complaint on the grounds that the Fund Agreement excludes coverage for criminal acts, Harrison’s acts were outside the scope of his employment, and public policy prohibits indemnifying an insured for his own intentional misconduct. The trial court dismissed the complaint with prejudice, but we reversed, holding that the dismissal was procedurally improper. See Keen v. Florida Sheriffs’ Self-Insurance Fund, 854 So.2d 844, 845 (Fla. 4th DCA 2003). On remand, the trial court granted summary judgment, concluding that Mason v. Florida Sheriffs’ Self-Insurance Fund, 699 So.2d 268 (Fla. 5th DCA 1997), controlled the case. It held that no coverage was available from the Fund as the policy excludes coverage of criminal acts, and what Keen had alleged was criminal conduct on the part of Harrison. From this final judgment, Keen appeals.

The “Coverage” provision of the Fund Agreement states as follows:

2. ... The assets of the Fund shall be used to defend any suit against a Covered Member seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent. ...
3. Subject to the terms, conditions and limitations of this Agreement, the Fund assets may be used to pay on behalf of a Covered Member all sums which a Covered Member shall become legally obligated to pay as damages or claims expenses because of claims for false arrest, assault and battery, false imprisonment, malicious prosecution, false or improper service of process, libel or slander, defamation of character, violation of property rights, wrongful eviction, wrongful entry, humiliation and invasion of the rights of privacy and violation of constitutional rights, growing out of the law enforcement duties of a Covered Member.

(emphasis added).

The “Exclusions” provision of the Fund Agreement provides that the agreement shall not apply to the following:

1) To claims against the Sheriff or any other Covered Member alleging that he has committed a fraudulent, dishonest or criminal act. This exclusion shall not apply to claims of vicarious liability against the Sheriff alleging fraudulent, dishonest or criminal acts by one or more of his deputies or employees,

(emphasis added).

This same policy was analyzed in Mason. In that case, the plaintiff sued a deputy sheriff in federal court in a section 1983 action for sexual battery which she alleged took place when an officer demanded sexual intercourse in exchange for not serving the plaintiff with a warrant for her arrest. The Fund refused to defend the deputy, and the plaintiff entered into an agreement assigning the deputy’s rights against the Fund to the plaintiff. The plaintiff then sued the Fund in state court, seeking damages for the Fund’s refusal to provide a defense or coverage. The trial court dismissed the plaintiffs complaint, finding no coverage for the deputy’s acts. The Fifth District affirmed.

The Fifth District analyzed the identical policy provisions as in this case. The court found that the coverage provision, which provided coverage for assault and battery arising out of the law enforcement duties of a covered member, was in conflict with the exclusion of coverage for criminal acts, rendering the policy ambiguous. However, it noted that the common understanding of the term battery did not include sexual battery or rape. It stated:

Insurance contracts must be read in light of the skill and experience of ordinary people, and be given their everyday meaning as understood by the “man on the street”. Thomas v. Prudential Property and Cas., 673 So.2d 141 (Fla. 5th DCA 1996). Since the everyday meaning of battery does not mean rape, the policy should not be construed to cover it. Further, the policy provides coverage for a list of specific acts that does not include rape. Since the inclusion of one thing implies the exclusion of the other, U.S. v. First National Bank of Crestview, 513 So.2d 179 (Fla. 1st DCA 1987) (maxim “expressio unius est exclusio alterius” applies to contracts as well as statutes), the enumeration of particular covered acts should be construed to exclude all of those not expressly mentioned, including rape.

Id. at 270. The court determined that the policy excluded coverage for the sexual battery. We concur with the reasoning of Mason and conclude that no coverage existed for the deputy for this incident.

In addition, the Mason court determined that the deputy was not acting within the course and scope of his employment when he sexually battered the plaintiff, even though he was in uniform at the time. “Because there was not even the pretense of lawful right in McNally’s performance of this act, it was not with in the scope of his employment.” Id.

Also on point is Lindheimer v. St. Paul Fire & Marine Insurance Co., 643 So.2d 636 (Fla. 3d DCA 1994) (en banc). There, a dentist sexually assaulted a patient. The dentist’s insurance policy provided coverage for claims that “arise out of the profession” or for claims that “result from professional services.” The court stated that whether an act results from the nature of a particular service is determined by focusing upon the particular act itself. “[T]he fact that an act occurred in a professional’s office does not automatically transmute the act into a professional service.... There must be some causal connection between an act and the nature of the doctor-patient relationship.” Id. at 638. The court found that the dentist’s sexual assault was not causally connected to the professional services “regardless of the ‘pretense of medical care used by the insured to catch his victim unaware.’ ” Id. at 639 (quoting New Mexico Physicians Mut. Liability Co. v. LaMure, 116 N.M. 92, 860 P.2d 734, 738 (1993)). The court reasoned that when the dentist stopped providing dental treatment to the patient and began sexually assaulting her, his professional services ended. Thus, the sexual assault was not covered under the terms of the professional liability policy.

Similarly, in this case, although the policy covers incidents “growing out of the law enforcement duties of the covered member,” there must be some causal connection between the sexual assault and the law enforcement duties of Harrison. Although Harrison illegally used his position as a pretense to place Keen in a position where he could sexually assault her, his law enforcement duties ended when he coerced an inmate of the jail to have sex with him. Therefore, the sexual assault was not within the law enforcement duties and was not covered.

Keen argues, however, even if no coverage existed, the Fund still had a duty to defend Harrison. An insurer’s duty to defend is distinct from and broader than its duty to indemnify. U.S. Fire Ins. Co. v. Hayden Bonded Storage Co., 930 So.2d 686, 691 (Fla. 4th DCA 2006). The existence of a duty to defend is determined based on only the allegations of the underlying complaint. Id. If the complaint sets forth facts which bring the claim within policy coverage, the duty to defend arises. Id.

The duty to defend is not determined by the complaint’s wording alone. See State Farm Fire & Cas. Co. v. Tippett, 864 So.2d 31, 35 (Fla. 4th DCA 2003); Amerisure Ins. Co. v. Gold Coast Marine Distribs., Inc., 771 So.2d 579, 582 (Fla. 4th DCA 2000) (holding that use of “buzz words” in a complaint will not trigger coverage when cause of action is for a non-covered act). As we noted in Tippett, “A liability insurance carrier must defend the insured only when the initial pleadings fairly bring the case within the scope of coverage.” 864 So.2d at 35. (emphasis added); see also Pioneer Nat’l Title Ins. Co. v. Fourth Commerce Props. Corp., 487 So.2d 1051, 1054 (Fla.1986). However, if the pleadings show the applicability of a policy exclusion, the insurer has no duty to defend. Reliance Ins. Co. v. Royal Motorcar Corp., 534 So.2d 922, 923 (Fla. 4th DCA 1988).

Although the complaint alleges a section 1983 claim for a violation of Keen’s civil rights, the underlying conduct of Harrison giving rise to the violation is sexual intercourse against Keen’s will. Keen specifically alleges that Harrison coerced her into sexual activity that she would have not agreed to but for her fear that he could take away her trustee status or gain time. She alleges that he was arrested for this conduct. She thus alleges that Harrison committed sexual battery on her. As the allegations show the application of the criminal acts exclusion in the policy, the Fund had no duty to defend Harrison.

For the foregoing reasons, we affirm the trial court’s final judgment.

POLEN and HAZOURI, JJ., concur.


author: LAGOA, Judge.

text:
    Michael Angel OCASIO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2413.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Michael Angel Ocasio, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and ROTHENBERG and LAGOA, JJ.
   LAGOA, Judge.

Michael Ocasio appeals an order denying his motion under Florida Rule 3.800 for credit for time served. Because the record before us fails to conclusively refute appellant’s claim that he is entitled to 426 days, we are obliged to reverse and remand. See Lundy v. State, 912 So.2d 671 (Fla. 3d DCA 2005).

The trial court’s order states that appellant is entitled to 256 days, while appellant’s post-conviction motion states that he is entitled to 426 days. The trial court, however, did not attach documentation that conclusively refutes appellant’s claim to such credit. While a conventional evidentiary hearing is not required where the issue involves credit for time served, a trial court must “review the appropriate records and make a determination whether the defendant has received proper credit for time served.” See Hidalgo v. State, 729 So.2d 984, 985 (Fla. 3d DCA 1999).

On remand, the trial court should examine the court file and the jail card, if necessary, to determine whether appellant is entitled to additional credit for time served. Id. Moreover, after said review, the trial court should either attach those portions of the record that conclusively refute the appellant’s claim or award him the appropriate credit for time served.

Reversed and remanded for further proceedings.


author: PER CURIAM.

text:
    Starr GRIFFIN, a/k/a David Williams, a/k/a David Starr Williams, a/k/a F. Starr Griffin, a/k/a David Allen Williams, a/k/a David Starr Williams, a/k/a Freddie Starr Griffin, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-1624.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Starr Griffin (aliases omitted), in proper person.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for Respondent.
    Before WELLS and SUAREZ, JJ., and FLETCHER, Senior Judge.
   PER CURIAM.

Starr Griffin, a/k/a David Williams, a/k/a David Starr Williams, a/k/a F. Starr Griffin, a/k/a David Allen Williams, a/k/a David Starr Williams, a/k/a Freddie Starr Griffin petitions to be allowed to belatedly file a motion for post-conviction relief in order to allege actual innocence. We deny the petition.

For offenses committed on December 25, 1974, in case number 75-584, Griffin was charged by Indictment with: Count (1) breaking and entering; Count (2) assault with intent to commit murder; and Count (3) first degree murder. Griffin was found guilty by a jury of breaking and entering and second degree murder. He was sentenced to a term of thirty years in state prison on the breaking and entering conviction and a term of fifty years of state imprisonment on the second degree murder conviction. These two sentences ran consecutively. Williams v. State, 344 So.2d 927 (Fla. 3d DCA 1977). Griffin has since filed multiple petitions in state and federal court, none of which have succeeded on the merits.

In response to the instant petition, we ordered Griffin to show cause why this Court should not prohibit him from filing any further pro se pleadings concerning case 75-584 and why the Court should not sanction him according to sections 944.28(2)(a) and 944.279, Fla. Stat. (2005), because we found his arguments and numerous filings to be without merit. See State v. Spencer, 751 So.2d 47 (Fla.1999) (holding a court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond). In response, Griffin re-asserts the legal arguments raised in all of his previous filings, and wonders how he could be sanctioned for filing repetitive motions when such endless motions were allowed by law so he could fight for his innocence through the courts. However, this court and the federal courts have, over many years, repeatedly addressed these issues on their merits and ruled accordingly.

We have carefully reviewed Griffin’s response in its entirety and find that good cause has not been demonstrated. See Baker v. State, 878 So.2d 1286 (Fla.2004); Guridi v. State, 959 So.2d 280, (Fla. 3d DCA 2007). We therefore deny the “petition for habeas corpus seeking belated rule 3.850 motion for post-conviction relief alleging actual innocence and fundamental miscarriage of justice and motion for the entry of nunc pro tunc order back to December 25, 1974.” We further direct the clerk of this court to refuse to accept for filing in this court any further appeals, pleadings, motions, petitions or other papers relating to appellant’s conviction and sentence in case number 75-584 unless they are filed by a member in good standing of The Florida Bar, and direct the Clerk to forward a certified copy of this opinion to the appropriate institution for consideration by that institution of disciplinary measures against appellant pursuant to sections 944.279(1), Florida Statutes (2005), and 944.28(2)(a), Florida Statutes (2005), for the filing of a frivolous petition.

      . Williams v. State, 344 So.2d 927 (Fla. 3d DCA 1977) (affirming Griffin's conviction and sentence); Williams v. State, 348 So.2d 955 (Fla.1977) (writ of cert. denied); On July 30, 1976, Fla. R.Crim. P. 3.850 motion to vacate judgment and sentence alleging newly discovered evidence, denied by the trial court on July 30, 1976; Williams v. Wainwright, 78-3090-CIV-CA (federal petition for habeas corpus dismissed for the failure to raise the allegations in the State court); Williams v. Wainwright, 368 So.2d 1388 (Fla. 3d DCA 1979) (petition for habeas denied); Williams v. Wainwright, 79-2924-CIV-CA (petition for cert. dismissed on December 18, 1979, for the failure to exhaust all claims in State court); Williams v. Wainwright, 80-859-CIV-CA (habeas petition denied on the merits); Williams v. Wainwright, 655 F.2d 234 (5th Cir.1981) (appeal of denial of habeas affirmed); November 9, 1981, Griffin filed a second Fla. R.Crim. P. motion to vacate judgment and sentence, which motion was denied as meritless on January 8, 1982, Case No.3D95-222; January 11, 1982, Griffin filed a third Fla. R.Crim. P. motion to vacate judgment and sentence which was denied by the trial court, Case No.3D95-222; October 8, 1985, Griffin filed a fourth Fla. R.Crim. P. motion to vacate judgment and sentence which was denied by the trial court, Case No.3D95-222; Williams v. State, 506 So.2d 420 (Fla. 3d DCA 1987) (affirm denial of 3.800 relief); December 4, 1986, Griffin filed a sixth Fla. R.Crim. P. motion to vacate judgment and sentence which the trial court denied on January 15, 1987. Griffin appealed and this Court per curiam affirmed on May 26, 1987, Case No.3D95-222. On July 10, 1990, Griffin filed a seventh Fla. R.Crim. P. 3.850 motion to vacate judgment and sentence which the trial court denied on July 17, 1990, and denial affirmed, Williams v. State, 566 So.2d 1293 (Fla. 3d DCA 1990); Williams v. State, 576 So.2d 295 (Fla.1990) (petition for cert. denied); Williams v. Singletary, 91-1263-CIV-KEHOE (federal habeas denied); Williams v. Singletary, 3 F.3d 442 (11th Cir.1993) (denial of habeas affirmed); Griffin v. State, 638 So.2d 952 (Fla. 3d DCA 1994) (affirming denial of 3.850); February 24, 1994, the lower court order denying Griffin's Fla. R.Crim. P. 3.850 motion; Williams v. State, 654 So.2d 1272 (Fla. 3d DCA 1995) (petition for habeas denied); Williams v. State, 675 So.2d 136 (Fla. 3d DCA 1996) (affirming denial of 3.800 relief); Williams v. State, 731 So.2d 1289 (Fla. 3d DCA 1999) (affirming denial of 3.800 relief); Williams v. State, 744 So.2d 1010 (Fla. 3d DCA 1999) (affirming denial of 3.800 relief); April 10, 2000, the trial court denied Griffin’s motion for post conviction relief; May 25, 2000, the trial court denied Griffin's motion for post conviction relief as insufficient; Williams v. State, 806 So.2d 493 (Fla. 3d DCA 2001) (affirmed); Griffin v. Moore, 805 So.2d 806 (Fla.2001) (Florida Supreme Court denied the petition as habeas corpus can not be used to litigate or relitigate issues which were or could have been raised on direct appeal or in prior postconviction proceedings, warning Griffin that further filing of procedurally barred petitions could result in sanctions); May 22, 2003, Griffin filed an Fla. R.Crim. P. 3.800 motion to correct sentence; February 13, 2004, Griffin filed an Fla. R.Crim. P. 3.800 motion to correct sentence; May 25, 2004, the trial court denied the motion, and 3D DCA affirmed with a lengthy opinion, Williams v. State, 891 So.2d 621 (Fla. 3d DCA 2005); March 14, 2005, the trial court denied another of Griffin's Fla. R.Crim. P. 3.850 motion. Griffin appealed that denial to this Court. This Court per curiam affirmed on June 8, 2005, Williams v. State, 905 So.2d 142 (Fla. 3d DCA 2005); Griffin filed a petition for writ of mandamus with this Court. This Court denied the petition on March 14, 2006, Griffin v. State, 923 So.2d 1176 (Fla. 3d DCA 2006). Griffin then filed another appeal with this Court — 3D06-1624 which was combined with yet another appellate action— 3D06-1263.
      On October 6, 2006, the trial court denied another of Griffin’s Fla. R.Crim. P. 3.800 motions.


text:
    Maite TOLEDO, Petitioner, v. Alejandro ESCAMILLA, Respondent.
    No. 3D07-460.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Wedderburn & Jacobs and Bruce R. Jacobs, North Miami Beach, for petitioner.
    Michael Lechtman, North Miami Beach, for respondent.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The petitioner, Maite Toledo (“Ms. Toledo”), petitions this court for a writ of certiorari, seeking to quash the circuit court’s appellate opinion dated October 10, 2006, which affirms the final judgment of eviction entered by the county court pursuant to Chapter 83, Part II, Florida Statutes (2004). As we conclude that the county court lacked subject matter jurisdiction to enter the final judgment of eviction, we grant the petition.

The respondent, Alejandro Escamilla (“Mr. Escamilla”), filed an eviction action against Ms. Toledo in county court pursuant to Chapter 83, Part II, Florida Statutes (2004), which is known as the Florida Residential Landlord and Tenant Act (“Act”), asserting that Ms. Toledo was a tenant. Ms. Toledo answered the complaint asserting that she lived with her former boyfriend and their son in the subject property, and that after her former boyfriend left, she and her son remained in the property. Believing that she was a part owner of the property, Ms. Toledo continued to pay the mortgage, association fees, and maintenance, and she also made improvements to the property. Several years later, without Ms. Toledo’s knowledge, her former boyfriend sold the property to Mr. Escamilla.

The county court entered a default judgment against Ms. Toledo for failing to place rent into the court’s registry. Ms. Toledo appealed to the circuit court. The circuit court reversed and remanded, directing the county court to “determine whether [Mr. Escamilla’s] action should have been founded upon eviction or ejection principles, and if ejection is the proper vehicle, to afford [Ms. Toledo] an eviden-tiary hearing to determine the amount in controversy.”

After conducting a hearing, the county court entered an order finding that Ms. Toledo had no leasehold interest in the property, and dismissed the lis pendens she had filed. The county court concluded that when Mr. Escamilla purchased the property, he had no record notice that Ms. Toledo might have a claim against her former boyfriend, and that

[Ms. Toledo’s] contentions are legally insufficient to maintain a claim for an equitable interest in the property against [Mr. Escamilla], Accordingly, as [Ms. Toledo] could not legally maintain an action for an equitable stake in the condominium unit at the time the complaint was filed in this matter, the action was properly one for eviction, and not ejectment.

Ms. Toledo appealed this judgment to the circuit court’s appellate division. The circuit court, without providing any analysis, issued an opinion affirming the county court’s final judgment of eviction, but remanded “for a determination whether [Ms. Toledo] and/or her counsel should be sanctioned for filing the Lis Pendens, dated January 12, 2006, and released May 25, 2006, (after oral argument in this appeal), based upon the order of the trial court.”

In this petition for writ of certiorari, Ms. Toledo argues that the county court lacked subject matter jurisdiction over Mr. Es-camilla’s action, and therefore, the circuit court, acting in its appellate capacity, applied the incorrect law when it affirmed the county court’s judgment of eviction. We agree.

We begin our analysis by acknowledging that a district court’s scope of review on second-tier certiorari is whether the circuit court afforded procedural due process and whether it applied the correct law. See Dusseau v. Metropolitan Dade County Bd. of County Comm’rs, 794 So.2d 1270, 1273 (Fla.2001). We find that the circuit court failed to apply the correct law in affirming the county court’s judgment, as the county court lacked subject matter jurisdiction to enter the judgment of eviction.

The Act affords a landlord a summary procedure in county court when seeking to remove a tenant from its premises. Specifically, section 83.59(2), Florida Statutes (2004), provides in part:

A landlord ... applying for the removal of a tenant shall file in the county court of the county where the premises are situated a complaint describing the dwelling unit and stating the facts that authorize its recovery.... The landlord is entitled to the summary procedure provided in s. 51.011[F.S. 1971], and the court shall advance the cause on the calendar.

(Emphasis added). Thus, a landlord/tenant relationship is a condition precedent to applying this statutory remedy.

Section 83.43(4), Florida Statutes (2004), defines “tenant” as “any person entitled to occupy a dwelling unit under a rental agreement.” Moreover, section 83.43(7) defines “rental agreement” as “any written agreement, or oral agreement if for less duration than 1 year, providing for use and occupancy of premises.”

In the instant case, it is undisputed that there was no written “rental agreement.” Moreover, it is also undisputed that after Ms. Toledo’s former boyfriend moved from the condominium unit, Ms. Toledo continued to live there for approximately four years. Thus, any oral agreement between Ms. Toledo and her former boyfriend cannot be considered a “rental agreement” as defined in section 83.43(7), as the oral agreement, if any, between Ms. Toledo and her former boyfriend was not for a duration of less than one year. Therefore, as Ms. Toledo is not a “tenant” as defined by the Act, the county court lacked subject matter jurisdiction.

We also find that when Ms. Toledo asserted in her answer that she was not a tenant and that she had an equitable interest in the property, ejectment, not eviction, was the proper remedy, and the matter should have been transferred to the circuit court. The circuit court has “exclusive original jurisdiction” over ejectment actions. See § 26.012(2)(f), Fla. Stat. (2004)(specifying that circuit courts have “exclusive original jurisdiction” over “actions of ejectment”); Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 959 So.2d 753 (Fla. 4th DCA 2007)(holding that pursuant to section 26.012(2)(f), Florida Statutes, circuit courts have exclusive original jurisdiction over ejectment actions). Thus, the county court did not have subject matter jurisdiction to determine whether Ms. Toledo had an equitable interest in the condominium unit. See Consumers Alliance Corp. v. McWhorter, 12 Fla. L. Weekly Supp. 890a (Fla. Broward Cty. Ct. July 13, 2005)(holding that “Plaintiff failed to prove that this is a landlord-tenant relationship with a ‘rental agreement’ as required by Florida Statutes §§ 83.41, 83.43(6) & 83.43(7) (2004).... As a result, although the Plaintiff may have a bona fide case for ejectment or foreclosure, it was unable to sustain a case for eviction under the Landlord and Tenant Act”), affirmed, 13 Fla. L. Weekly Supp. 1159c (Fla. 17th Cir.Ct. Aug. 25, 2006); Vasquez v. Futch, 7 Fla. L. Weekly Supp. 100a (Fla. 19th Cir. Ct. Sept. 8, 1999)(“Pursuant to Section[] 26.012(2)(f) ..., the circuit courts have exclusive original jurisdiction in actions of ejectment.... Once the [party in possession of the real property] raised the issue of a competing claim to title as an affirmative defense, it could no longer be assumed that the case was a landlord/tenant matter within the jurisdiction of the county court.”); Ali v. Matos, 11 Fla. L. Weekly Supp. 846a (Fla. Broward Cty. Ct. Apr. 21, 2004)(finding that cause of action for ejectment is a “remedy for possessory claims where there is no landlord/tenant relationship ” and that “County Court does not have jurisdiction to hear ejectment actions”).

Because the county court lacked subject matter jurisdiction to resolve the issues before it, the decision reached by the county court constitutes fundamental error reviewable by this court on a petition for certiorari. See Stel-Den of Am., Inc. v. Roof Stmctures, Inc., 438 So.2d 882, 884 (Fla. 4th DCA 1983)(“An incorrect decision on subject matter jurisdiction is fundamental error. It constitutes a departure from the essential requirements of law, sufficient to justify invocation of [district] court’s certiorari jurisdiction.... Thus, the county court’s lack of subject matter jurisdiction was properly raised in the circuit court. So too, it is properly before [district] court.”).

Therefore, as the county court lacked subject matter jurisdiction, we grant the petition, quash the circuit court’s opinion, and instruct the circuit court to enter an order reversing the county court’s judgment of eviction and to transfer Mr. Es-camilla’s action to the circuit court pursuant to Florida Rule of Civil Procedure 1.060(a).

Petition granted.

      . The appellate court issued a stay, but Ms. Toledo was evicted because the Sheriff's office had already issued the writ of possession.