author: STRINGER, Judge.

text:
    L.T., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2006.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

L.T., a juvenile, seeks review of an order withholding adjudication and placing L.T. on probation after the court found L.T. guilty of disrupting a school function. L.T. argues that the trial court erred in failing to grant her motion for judgment of dismissal because there was no evidence that L.T. intended to disrupt a school function. We agree and reverse on this basis.

This court reviews a trial court’s ruling on a motion for judgment of dismissal de novo. E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003). “The evidence must be viewed in the light most favorable to the State, and if a rational trier of fact could find that the elements of the crime have been established beyond a reasonable doubt, sufficient evidence exists to sustain the conviction.” Id. However, a judgment of dismissal is proper if the State fails to prove a prima facie case of the crime at issue. Id.

Section 877.13, Florida Statutes (2005), defines the crime of disrupting a school function as follows:

(1) It is unlawful for any person:
(a) Knowingly to disrupt or interfere with the lawful administration or functions of any educational institution, school board, or activity on school board property in this state.

This offense contains a specific intent element that requires conduct “specifically and intentionally designed to stop or temporarily impede the progress of any normal school function or activity occurring on the school’s property.” M.C. v. State, 695 So.2d 477, 483 (Fla. 3d DCA 1997); see also T.T. v. State, 865 So.2d 674, 676 (Fla. 4th DCA 2004); C.K. v. State, 850 So.2d 636, 637 (Fla. 1st DCA 2003).

L.T. argues that the State did not prove a prima facie case of disrupting a school function because there was no evidence she intended to stop or temporarily impede the progress of any normal school function. L.T. argues that the evidence showed that she “merely reacted to an upsetting situation,” which was an attack on her sister by a classmate. We agree that there was no evidence of specific intent in this ease.

The evidence showed that L.T.’s sister confronted a girl in the school hallway and asked the girl if she had written something about L.T. on a piece of paper. The girl said she did not know L.T.’s sister and L.T.’s sister pointed to L.T., who was standing nearby. L.T.’s sister then shoved a piece of paper with writing on it in the girl’s face. When the girl started to walk away, L.T.’s sister swung at her, and the two started to fight. The girl was holding L.T.’s sister’s head down when L.T. joined the fight. L.T. testified that she merely pushed her sister away and only started fighting with the girl because the girl pushed her. The girl agreed that L.T. entered the fight when the girl was holding L.T.’s sister’s head down but testified that L.T. swung at her first.

It should be noted that the trial court dismissed a battery charge against L.T., finding that L.T. may have believed she was coming to the aid of her sister. The court ruled:

Well, I’ve got a reasonable doubt about the battery. I think this is a situation where justifiable use of non-deadly force might be applicable. She saw her sister getting beat up by someone else and felt the need to get involved for the protection of her sister. So, I’m going to find her not guilty of the battery but I am going to find her guilty of disrupting the school campus or function, because she knew she was doing that.

We agree with L.T. that the evidence does not establish a specific intent to stop or temporarily impede the progress of any normal school function. As found by the trial court, the evidence merely established that L.T. joined an already on-going fight for the sole purpose of protecting her sister. L.T. did not instigate the fight and evidence she “knew” she was disrupting the school campus is not evidence that she specifically intended to do so.

Reversed.

LaROSE, J. and THREADGILL, EDWARD F., JR., Senior Judge, Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Debra S. SALMI, Wife, Appellant, v. Alan M. SALMI, Husband, Appellee.
    No. 1D06-4331.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.
    Tracy S. Carlin and John S. Mills of Mills & Carlin, P.A., Jacksonville; and Michael L. Edwards, Jacksonville, for Appellant.
    Ned I. Price and Beth M. Terry of the Law Offices of Ned I. Price, P.A., Jacksonville; and Michael J. Korn, Jacksonville, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 13, 2006, the Court has determined that the order on appeal is not final. See generally Canfield v. Cantele, 837 So.2d 371, 375 (Fla.2002); Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002) Accordingly, the appeal is hereby dismissed as premature. The Motion for Extension of Time to Complete Transcript, filed on September 20, 2006, is denied as moot.

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    Robert ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1335.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.

      Robert Adams, pro se, Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Robert Adams, challenges the trial court’s order summarily denying his Florida Rule of Criminal Procedure 3.850 motion arguing four grounds for relief. Because the trial court erred in summarily denying appellant’s claim that his counsel was ineffective for advising him to enter a plea to a charge of driving under the influence (“DUI”) with serious bodily injury, we reverse. We affirm the trial court’s denial of appellant’s remaining claims without further discussion.

On October 22, 2001, appellant was convicted of two counts of DUI manslaughter and one count of DUI with serious bodily injury and was sentenced to fifteen years’ imprisonment on count one, a consecutive term of five years’ imprisonment followed by five years’ probation on count two, and a concurrent term of five years’ probation on count three. In his postconviction motion, appellant alleged that counsel was ineffective for advising him to plead guilty to DUI with serious bodily injury because the only person with serious bodily injury was appellant. Appellant alleged that he would not have pled to this charge absent counsel’s advice. Thus, appellant stated a facially sufficient claim for postconviction relief. Brazeail v. State, 821 So.2d 364, 368 (Fla. 1st DCA 2002).

On September 6, 2001, this Court issued an opinion stating that a defendant could not be convicted of DUI with serious bodily injury when the only person that sustained an injury was the defendant. Smith v. State, 793 So.2d 1118 (Fla. 1st DCA 2001). In appellant’s case, the information charged that appellant committed serious bodily injury to himself. Moreover, the prosecutor stated that the factual basis for the charge of DUI with serious bodily injury was that appellant was injured in the accident. Thus, there was no factual basis to support appellant’s plea. The trial court denied this claim under the mistaken belief that the decision in Smith would have to apply retroactively to appellant’s conviction. However, Smith was decided prior to the entry of appellant’s plea, and counsel should have been aware of this decision before he advised his client to enter a plea to the charge of DUI with serious bodily injury. Because the trial court erred by denying this claim, we reverse the denial of this portion of appellant’s motion and remand for an evidentia-ry hearing.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Ronald Davis SMALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2780.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.
    Ronald Davis Small, pro se, Appellant.
    Charlie Crist, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court improperly denied appellant’s motion as untimely, we reverse.

In 1976, appellant was sentenced to life in prison. He was later released on parole. In 2003, pursuant to a guilty plea, appellant was sentenced to 12 months in prison for grand theft. Appellant was later permitted to file a belated direct appeal of his 2003 conviction, which was voluntarily dismissed on March 16, 2006. On March 28, 2006, appellant filed a motion for postconviction relief in the 2003 case, and on April 27, 2006, the trial court denied appellant’s motion as untimely.

The trial court’s denial of appellant’s motion was improper. The two-year time limitation for filing motions for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 does not begin to run until an appellate court grants a petitioner’s request for voluntary dismissal of a direct appeal. See Cabrera v. State, 721 So.2d 1190 (Fla. 2d DCA 1998). Accordingly, here the time limitation did not begin to run until appellant’s belated direct appeal was voluntarily dismissed on March 16, 2006, and appellant’s motion filed on March 28, 2006, was timely.

We reverse the trial court’s summary denial of appellant’s motion for postconviction relief, and remand with directions that the trial court consider the motion on the merits.

REVERSED and REMANDED, with directions.

WEBSTER, POLSTON, and HAWKES, JJ., concur.


author: WELLS, Judge.

text:
    The STATE of Florida, Appellant, v. Daisy ARNAL, Appellee.
    No. 3D06-608.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.

      Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellant.
    Jauregui & Jauregui and Sabino Jaure-gui, Miami, for appellee.
    Before FLETCHER and WELLS, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

The State appeals from an order granting a sworn motion to dismiss an information charging Daisy Arnal with insurance fraud and grand theft in the third degree. We reverse.

In July 2004, the State filed a two count information charging Arnal with violating section 440.105(4)(b) of the Florida Statutes which makes it unlawful to knowingly make false, fraudulent or misleading statements for the purpose of obtaining workers’ compensation benefits or payments: It shall be unlawful for any person:

1. To knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter.
2. To present or cause to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.
3. To prepare or cause to be prepared any written or oral statement that is intended to be presented to any employer, insurance company, or self-insured program in connection with, or in support of, any claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.
4. To knowingly assist, conspire with, or urge any person to engage in activity prohibited by this section.
5. To knowingly make any false, fraudulent, or misleading oral or written statement, or to knowingly omit or conceal material information, required by s. 440.185 or s. 440.381, for the purpose of obtaining workers’ compensation coverage or for the purpose of avoiding, delaying, or diminishing the amount of payment of any workers’ compensation premiums.

§ 440.105(4)(b), Fla. Stat. (2005).

The State also charged Arnal for theft of the allegedly wrongfully obtained insurance proceeds.

In response to these charges, Arnal filed a Rule 3.190(c)(4) sworn motion to dismiss claiming that she had “never presented or caused to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of the law knowing that such statement contained any false, incomplete, or misleading information concerning any fact or thing material to such claim.”

The State traversed, stating:

3. The State denies this sworn fact. On February 8, 2002, the defendant failed to inform Physical Health Center when filling out patient paperwork, and when talking to a Doctor, that that she had previously been injured in the same area where she was now experiencing pain. The defendant also failed to tell Dr. Ballweg on July 25, 2002, that she had previously been injured in the same area where she was now experiencing pain. Additionally, in her deposition dated August 5, 2002, the defendant denied ever being in an auto accident or filing claims with an insurance company for injury to the same area as she was now experiencing pain.
8. The State denies this sworn fact. On at least five different occasions the defendant failed to inform the examiner that she had a previous accident and injury in the same area where she was now suffering pain.

Despite this traverse, the charges were dismissed.

As our decision in State v. Ortiz, 766 So.2d 1137 (Fla. 3d DCA 2000), makes clear, Rule 3.190(c)(4) motions to dismiss are treated like summary judgment motions in civil cases, the purpose of which is to test the legal sufficiency of the underlying case. To avoid dismissal under this rule, the State is not obligated to pre-try its case, only to provide sufficient facts, when viewed in a light most favorable to the State, to show that a reasonable jury could rule in its favor:

A motion to dismiss, made pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), must allege and establish that “there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” State v. Kalogeropolous, 758 So.2d 110, 111 (Fla.2000). A motion to dismiss in a criminal case is analogous to a motion made for summary judgment in civil cases, and as such “[b]oth should be granted sparingly.” State v. Bonebright, 742 So.2d 290, 291 (Fla. 1st DCA 1998); Kalogeropolous, 758 So.2d at 111. See also State v. McQuay, 403 So.2d 566, 567-68 (Fla. 3d DCA 1981) (stating that “[a] motion to dismiss should be granted only where the most favorable construction to the state would not establish a prima facie case of guilt. And if there is any evidence upon which a reasonable jury could find guilt, such a motion must be denied.” (emphasis added) (citation omitted)).
Moreover, on a motion made pursuant to Rule 3.190(c)(4), the state is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant. See State v. Paleveda, 745 So.2d 1026, 1027 (Fla. 2d DCA 1999) (stating that “[w]hen considering a defendant’s rule 3.190(c)(4) motion to dismiss, all questions and inferences from the facts must be resolved in favor of the state.”); State v. Hunwick, 446 So.2d 214, 215 (Fla. 4th DCA 1984) (holding that “[o]n a motion to dismiss, the state is entitled to a construction most favorable to it; all inferences are resolved against the defendant.”). To counter a motion to dismiss, the state need not adduce evidence sufficient to sustain a conviction. See State v. Fetherolf, 388 So.2d 38, 39 (Fla. 5th DCA 1980) (holding that “[t]o counter a motion to dismiss, the state need not produce evidence sufficient to sustain a conviction. The proceeding is not designed to create a trial by affidavit or a ‘dry run’ of a trial on the merits”).
Indeed, it is clear that in considering such a motion, the trial court is not permitted to make factual determinations nor consider either the weight of the conflicting evidence or the credibility of the witnesses. Fetherolf, 388 So.2d at 39 (stating that “[i]t is not proper [on a rule 3.190(c)(4) motion] for the court to determine factual issues, consider weight of conflicting evidence, or credibility of witnesses.”). See also State v. Gutierrez, 649 So.2d 926, 928 (Fla. 3d DCA 1995) (“On a motion to dismiss, if the affidavits and depositions filed in support of or in opposition to the motion create materially disputed facts, it is improper for the trial court to determine factual issues and consider the weight of conflicting evidence of credibility of witnesses.”). “Even if the trial court doubts the sufficiency of the state’s evidence, it cannot grant a motion to dismiss criminal charges simply because it concludes that the case will not survive a motion for a judgment of acquittal.” Paleveda, 745 So.2d at 1027.

Ortiz, 766 So.2d at 1141-42.

The traverse in this case affirmatively asserts that Arnal made false and misleading statements about her medical history, and that these statements were material to the amount of the payments that she was to obtain under Chapter 440. These facts are more than adequate to make a prima facie case under that Chapter and avoid dismissal. And, while intent or state of mind may, as the trial court correctly noted, be difficult to establish, it is not, as we have stated “an issue to be decided on a motion to dismiss under Rule 3.190(c)(4).” State v. Book, 523 So.2d 636, 638 (Fla. 3d DCA 1988). Thus, on this record the charges should not have been dismissed.

The order under review is, therefore, reversed and the cause remanded.


author: ROTHENBERG, Judge.

text:
    Charles TAYLOR and Connie Taylor, Appellants, v. James G. MANESS and Olga Maness, Appellees.
    Nos. 3D06-578, 3D06-919.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.

      Robert T. Maher, Fort Myers, FL, for appellants.
    Infantino & Berman and Thomas V. In-fantino, Winter Park, FL; Campbell & Malafy, Marathon, FL, and John Campbell, for appellees.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The plaintiffs, Charles Taylor and Connie Taylor (“Taylors”), appeal (1) a final order granting partial summary judgment in favor of the defendants, James G. Maness (“Mr. Maness”) and Olga Maness (“Mrs. Maness”)(collectively referred to as the “Manesses”), as to Counts I, III, V, VI, and VII of their amended complaint, and (2) a final order granting summary judgment in favor of Mrs. Maness as to her counterclaim, based upon disputed issues of fact relating to Mrs. Maness’ intent to claim a homestead interest in the . real property contracted for sale by Mr. Maness to the Taylors. Because we find that there is no genuine issue as to any material fact and that the Manesses are entitled to judgment as a matter of law, we affirm.

As a result of Mr. Maness terminating a Contract for the Sale and Purchase of Real Property (“contract”) that Mr. Maness and the Taylors entered into, the Taylors filed an amended complaint against the Maness-es, asserting the following claims: Count I — breach of contract for specific performance of the contract against Mr. Maness; Count II — breach of contract for damages against Mr. Maness; Count III — fraud in the inducement against Mr. Maness; Count IV — breach of covenant of good faith and fair dealing against Mr. Maness; Count V — negligent misrepresentation against Mr. Maness; Count VI — tortious interference against Mrs. Maness; and Count VII — civil conspiracy against the Manesses. Mrs. Maness filed a counterclaim against the Taylors seeking a declaratory judgment that she had not abandoned her homestead rights in the real property contracted for sale by Mr. Maness and the Taylors. Thereafter, Mr. Maness moved for entry of summary judgment as to Counts I and III; the Maness-es moved for entry of summary judgment as to Counts IV, V, VI, and VII; and Mrs. Maness moved for entry of summary judgment as to her counterclaim. Following a hearing and upon review of the record, the trial court entered an order of summary judgment in favor of the Manesses as follows: Count I, specific performance, the trial court found that there is no genuine issue of material fact that Mrs. Maness has a homestead interest in the marital real property and, as the contract is not capable of being specifically performed, the Manesses are entitled to judgment as a matter of law; and, as to Counts III, V, VI, and VII, the trial court found that the “economic loss doctrine” barred these tort claims and dismissed them with prejudice. The trial court also granted summary judgment in favor of Mrs. Maness as to her counterclaim and declared that she had a homestead interest in the real property.

The undisputed facts, which were before the trial court, are as follows. Mr. and Mrs. Maness were married on June 14, 1986. Sometime in September 1986, Mr. Maness purchased a vacant lot located at 180 Ana Court, Marathon, Monroe County, Florida, which was titled solely in the name of “James G. Maness, as a married man” (“Marathon Property”). Between 1991 and 1994, the Manesses had a single family home built on the Marathon Property. Sometime in 1998, the Manesses moved from their marital homestead property in Miami, Florida, to the Marathon Property and, except for temporary absences, have remained there since. In August 2002, Mrs. Maness and the Manesses’ minor son, Everett Maness (“Everett”) moved temporarily to Martin County, Florida, in order for Everett to attend public school there. Mr. Maness remained and still remains in the Marathon Property. On or about September 25, 2002, Mr. Maness, as the seller, and the Taylors, as the purchasers, entered into a contract, whereby Mr. Maness agreed to convey the Marathon Property to the Taylors. Mrs. Maness did not execute the contract, nor was she named in the contract. Closing was to take place on or before December 2, 2002. Mrs. Maness, however, refused to execute the deed transferring the Marathon Property to the Taylors, claiming that she has a homestead interest in the Marathon Property, thereby precluding consummation of the contract.

The Taylors assert that the trial court erred by granting summary judgment in favor of the Manesses as to their claim for specific performance since there are genuine issues of material fact relating to Mrs. Maness’ abandonment of her homestead interest in the Marathon Property. We disagree.

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Where no genuine issue of material fact is shown to exist, the only question for the appellate court is whether the summary judgment was properly granted under the law.” Yardum v. Scalese, 799 So.2d 382, 383 (Fla. 4th DCA 2001)(citing Wesley Constr. Co. v. Lane, 323 So.2d 649, 650 (Fla. 3d DCA 1975)). Thus, “[a] trial court’s ruling on a motion for summary judgment regarding a pure question of law is reviewed de novo.” Fernandez v. Homestar at Miller Cove, Inc., 935 So.2d 547, 550 (Fla. 3d DCA 2006).

The Taylors attempt to create a genuine issue of material fact by asserting that Mrs. Maness’ intent to abandon her homestead interest in the Marathon Property is a question of fact improperly decided on summary judgment. However, this dispute essentially pertains to a question of law; specifically, the extent of the homestead protection afforded by the Florida Constitution.

The homestead exemption found in Article X, section 4 of the Florida Constitution specifies, in pertinent part, that:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead ... upon which the exemption shall be limited to the residence of the owner or his family;
(e) ... The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift ....

Art. X, § 4(a)(1), (c), Fla. Const, (emphasis added).

Florida courts have consistently held that the protections afforded by “the homestead exemption in article X, section 4 must be liberally construed.” Butterworth v. Caggiano, 605 So.2d 56, 58 (Fla.1992). Florida courts’ “homestead exemption jurisprudence has long been guided by a policy favoring the liberal construction of the exemption: ‘Organic and statutory provisions relating to homestead exemptions should be liberally construed in the interest of the family home.’ ” Havoco of Am., Ltd. v. Hill, 790 So.2d 1018, 1021 (Fla.2001)(quoting Milton v. Milton, 63 Fla. 533, 58 So. 718, 719 (1912)). “The homestead exemption is liberally construed for the benefit of those whom it was designed to protect.” Law v. Law, 738 So.2d 522, 524 (Fla. 4th DCA 1999).

The plain import of article X, section 4, subsection (a) is to prevent from forced sale under process of any court the homestead property owned by a natural person, except in three specific exceptions. This homestead exemption is “limited to the residence of the owner or the owner’s family.” Law, 738 So.2d at 524. Therefore, if the Marathon Property is the homestead residence of Mr. Maness or his family, the protections of the homestead exemption apply and the contract in this case is incapable of being specifically performed as the court cannot force the sale of the homestead by a decree of specific performance.

In this case, there is no question that Mr. Maness is the title owner of the Marathon Property. There is also no dispute that Mr. Maness has permanently resided in the Marathon Property since 1998 and intends to remain there indefinitely. Thus, we conclude that the Marathon Property constitutes Mr. Maness’ homestead and consequently, the homestead of his family as well. The Taylors are correct in their argument that an intact marriage can only have one homestead. See Law, 738 So.2d at 525 (“[A] husband and wife in an intact marriage cannot have two homesteads.”). It is undisputed that the Manesses originally had a homestead in Miami that they jointly owned. When the Manesses moved from and sold their Miami homestead residence and moved to the Marathon Property in 1998, their homestead protection also “moved” to the Marathon Property and attached thereto until the Manesses take up a permanent homestead residence elsewhere. The Taylors assert, however, that because the Manesses failed to claim a homestead tax exemption, it evidences that the Marathon Property was not the Manesses’ homestead. The fact that the Manesses did not claim a homestead exemption for tax purposes until recently is irrelevant to whether the homestead protections attach to the Marathon Property. The homestead exemption from forced sale is different from the homestead exemption as defined for tax purposes. S. Walls, Inc. v. Stilwell Corp., 810 So.2d 566, 569 (Fla. 5th DCA 2002). Failure to claim the homestead tax exemption is not evidence that property is not in fact homestead. Pierrepont v. Humphreys, 413 So.2d 140, 143 (Fla. 5th DCA 1982). Thus, we conclude that there is no genuine issue of material fact that the Marathon Property constitutes the Manesses’ homestead property and consequently is protected from forced sale by the court in this instance.

In reaching our conclusion, we wish to address Mrs. Maness’ homestead interest in the Marathon Property. The Tay-lors correctly point out that Mrs. Maness is not the title owner of the Marathon Property. However, the individual claiming the homestead exemption need not hold fee simple title to the property. Callava v. Feinberg, 864 So.2d 429, 431 (Fla. 3d DCA 2003). Article X, section 4 “does not designate how title to the property is to be held and it does not limit the estate that must be owned, i.e., fee simple, life estate, or some lesser interest.” Stilwell, 810 So.2d at 569. Thus, even if Mrs. Maness owns only a beneficial interest in the Marathon Property, she is entitled to claim a homestead exemption to the forced sale of the property. See Callava, 864 So.2d at 431 (holding that even if divorced wife only owned a beneficial interest and not title interest in the residence constituting her homestead, she was nonetheless entitled to claim a homestead exemption from the forced sale of the property).

Further, the Florida Constitution places certain restrictions on the homestead owner’s right to alienate his or her family’s homestead property. Pierrepont, 413 So.2d at 142. Particularly applicable to this case is Mrs. Maness’ homestead right pursuant to article X, section 4(c), which specifies that the owner of homestead real estate must, if married, be joined by his or her spouse in order to alienate the homestead by sale. As the Florida Supreme Court specified, this provision makes it “clear that both [spouses] must join in a conveyance of a homestead owned by one spouse to a third party.” Jameson v. Jameson, 387 So.2d 351, 353 (Fla.1980); see also High v. Jasper Mfg. Co., 57 Fla. 437, 49 So. 156, 157 (1909)(holding that where a married man is the title owner of homestead property, his wife must join in the conveyance in order to alienate the homestead real estate). Accordingly, in this case, as there is no dispute that Mrs. Maness did not join in the conveyance of the Marathon Property, which constitutes the Manesses’ homestead property, the trial court properly concluded that there were no genuine issues of material fact and that the Maness-es were entitled to judgment as a matter of law as to Count I of the Taylors’ amended complaint.

The Taylors further assert that the trial court erred in granting summary judgment in favor of the Manesses as to the fraud in the inducement and negligent misrepresentation claims based on the economic loss rule. In support thereof, the Taylors assert that a fraud in the inducement claim is an independent tort and actionable despite the existence of a contract between the parties. The Taylors are correct that a fraud in the inducement claim is not barred by the economic loss rule so long as the claim is based on conduct that is separate and distinct from the conduct constituting the breach of contract. La Pesca Grande Charters, Inc. v. Moran, 704 So.2d 710, 713 (Fla. 5th DCA 1998); see also Indem. Ins. Co. v. Am. Aviation Inc., 891 So.2d 532, 537 (Fla.2004)(“Fraudulent inducement is an independent tort in that it requires proof of facts separate and distinct from the breach of contract.”).

The Taylors, however, state that “[t]he term of the bargain that was false — Maness owns the property and can sell it — is the basis for the fraud in the inducement. This is the term of the bargain that led [them] to enter into the agreement and forego purchasing a different property.” The first part of this statement, “Maness owns the property” is clearly not a misrepresentation as Mr. Maness is the title owner of the Marathon Property. The second part of the statement, that Mr. Maness can sell the property, is clearly embodied in the terms of the contract as “Mr. Maness’ ability to sell” is not conduct that is separate and distinct from the conduct constituting the breach of contract. It is this particular conduct, Mr. Maness’ inability to sell the Marathon Property, which forms the basis of the Taylors’ breach of contract claim. Simply labeling a “fraud in the performance” claim as “fraud in the inducement” is not sufficient to avoid the economic loss rule. Similarly, the Taylors cannot escape the economic loss rule in their negligent misrepresentation claim as the alleged negligent misrepresentation relates to the performance of the contract. Consequently, as the Taylors are seeking to recover damages in tort for a matter which arises from a breach of contract claim, the trial court properly concluded that the economic loss rule barred recovery for the fraud in the inducement and negligent misrepresentation claims.

As to the tortious interference claim against Mrs. Maness, we agree, without reaching the issue of whether the economic loss rule applies, that the trial court properly dismissed this count. The Tay-lors’ tortious interference claim is not a viable claim based upon our finding that Mrs. Maness has a homestead right in the Marathon Property and consequently, had an absolute legal right to interfere with the contract in order to protect her homestead interest. Similarly, and as the Tay-lors readily admit, as the tortious interference claim fails, the civil conspiracy claim against the Manesses also fails and was properly dismissed by the trial court. Accordingly, we affirm.

Affirmed.

      . In this case, none of the three exceptions from forced sale of tire homestead exemption apply. Thus, further discussion of the exceptions is not necessary.

      . Based on our conclusion that Mrs. Maness has a homestead interest in the Marathon Property, we also affirm the trial court’s grant of summary judgment in favor of Mrs. Maness as to her counterclaim seeking a declaration that the Marathon Property is her homestead.


text:
    Kevin Charles SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3848.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.
    Kevin Charles Smith, pro se, Appellant.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion to correct his illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he alleged that the April 2005 extension of his original probation illegally imposed a sanction outside of the Youthful Offender Act and thus the trial court did not have jurisdiction to impose the October 2005 sentence upon his subsequent violation of probation. Because the appellant has stated a facially sufficient claim for relief and the trial court’s order denying the appellant’s motion does not include record attachments refuting his claim, we reverse and remand.

On July 30, 1999, the appellant was sentenced as a youthful offender to four years’ incarceration followed by two years’ probation. On April 29, 2005, the appellant’s probation was extended by six months due to a technical violation. On September 22, 2005, an affidavit of violation of probation was filed and the appellant’s probation was revoked on October 24, 2005, resulting in a prison sentence. When imposing a sentence for a violation of probation, a court must provide credit for time previously served on probation when necessary to ensure that the total time served does not exceed the statutory maximum for the offense at issue. See State v. Summers, 642 So.2d 742 (Fla.1994); Waters v. State, 662 So.2d 332 (Fla.1995) (holding that upon revocation of probation, a court must grant credit for time served on probation and community control towards any newly imposed term of imprisonment and probation so that the total period of control, probation, and imprisonment does not exceed the statutory maximum); Bragg v. State, 644 So.2d 586 (Fla. 1st DCA 1994) (“[i]f the trial court includes probation as part of a sentence upon revocation of probation, the trial court must give credit for any time previously served on probation if the new period of probation together with other sanctions ... and the time previously served on probation total more than the statutory maximum”). Furthermore, when sentencing an accused as a youthful offender, a court may not impose a split sentence that exceeds six years in length. See § 958.04(2)(c), Fla. Stat. (1999). The appellant was originally sentenced to a total of six years’ incarceration and probation combined in July of 1999. As such, his six years were completed in July of 2005. Accordingly, the April 2005 extension of his probation by six months may have been illegal as it lengthened his sentence beyond the six-year limitation imposed by the Youthful Offender Act. Thus, when the affidavit of violation was filed on September 22, 2005, it would appear that the trial court lacked subject matter jurisdiction to revoke the appellant’s probation. See Wilson v. State, 698 So.2d 1380 (Fla. 4th DCA 1997).

We accordingly reverse the trial court’s summary denial of the appellant’s motion and remand for the trial court to either vacate the appellant’s sentence imposed on October 24, 2005, as a result of his violation of probation or attach record portions that conclusively refute his claim.

REVERSED.

WEBSTER, POLSTON, and HAWKES, JJ., concur.


text:
    Jose SIERRA, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5280.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2006.
    Brooke V. Elvington of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Jose Sierra appeals his conviction and sentence for aggravated battery and argues that the trial court committed fundamental error in instructing the jury on his self-defense claim. The State properly concedes error. See Swanson v. State, 921 So.2d 852 (Fla. 2d DCA 2006); Velazquez v. State, 884 So.2d 377 (Fla. 2d DCA 2004); Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004); Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004). Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

SILBERMAN and CANADY, JJ, and FARNELL, DEE ANNA, Associate Judge, concur.


author: WOLF, J.

text:
    STATE of Florida, Appellant, v. Joseph Wade ELLIOTT, Appellee.
    No. 1D05-4632.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellee.
   WOLF, J.

The State appeals the trial court’s grant of appellee’s Motion to Dismiss filed pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure. The State filed a traverse. Because the State’s traverse creates a dispute as to the material facts of the case, we reverse.

Appellee was charged by information for two counts of possession of a controlled substance, Xanax and Ketamine, on March 22, 2005. Appellee filed a motion to dismiss asserting that the material facts did not establish a prima facie case of guilt. In particular, the motion argued that the record did not contain a scintilla of evidence that appellee knew the illicit nature of the package’s content. The State responded by filing a traverse disagreeing with some of appellee’s assertions and introducing evidence that appellee knew of the illicit nature of the package’s content.

Where the State’s traverse creates a dispute as to the material facts in a case, an automatic denial of the motion to dismiss must follow. See State v. Aylesworth, 666 So.2d 181, 182 (Fla. 2d DCA 1995); see also Fla. R.Crim. P. 3.190(d).

In this ease, the disputed material fact is whether or not appellee had knowledge of the illicit nature of the contents of the package he possessed when he was arrested. While appellee asserts it is undisputed that he did not know what the package contained, the State argues that its traverse contains evidence which implies appellee’s knowledge. Specifically, the State’s traverse included the fact that the package was found on appellee’s person, inside his partially-zipped jacket, and it referred to a conversation between ap-pellee and a confidential informant which tended to show appellee knew of the illicit nature of the package’s content. When appellee picked up the package from the confidential informant, the informant stated:

Ok, well to let you know what’s happening. I have a meeting [with] my attorney tomorrow. [T]hey want me to meet with these guys from Customs. They’re trying to put the squeeze on me. [Y]ou know about things. [Tjhey’re not saying I’m going to go to jail or anything like that for this package, you know, but they’re saying they’re going to charge me a fee up to $10,000.

Thus, the State asserted that appellee knew of the illicit nature of the package in at least two separate ways, by showing that appellee hid a package in his jacket, and by referring to the conversation between appellee and the confidential informant where the confidential informant notified appellee that he would be heavily fined for the package in his possession. These assertions raise an issue of material fact that appellee had knowledge, and demonstrate that the State made a prima facie case for possession.

For this reason, we reverse and remand to the trial court with directions to reinstate the charges.

LEWIS and THOMAS, JJ., concur.


text:
    Frank L. NIX, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3588.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2006.

      Frank L. Nix, pro se, Appellant.
    Charlie Crist, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion to correct his illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he alleged that he is entitled to credit for time served in prison prior to his violation of probation. Because the appellant has stated a facially sufficient claim for relief that his sentence is illegal, we reverse.

On October 27, 1993, the appellant was sentenced to three years’ imprisonment to be followed by two years’ probation. On July 19, 2005, after a violation of probation, the appellant was sentenced to eighteen months’ imprisonment. The appellant was not awarded credit for the time he spent in prison prior to his resen-tencing after his violation of probation. Upon a violation of probation and resen-tencing, an accused is entitled to prison credit for all time served on the charge prior to resentencing. See Swain v. State, 845 So.2d 314 (Fla. 2nd DCA 2003)(re-manding the denial of a rule 3.800(a) motion for the trial court to check the prison credit box so that the appellant would be awarded time served on the charges prior to resentencing); Corpus v. State, 744 So.2d 594, 595 (Fla. 2d DCA 1999) (remanding to trial court to check the prison credit box on the sentencing form).

We accordingly reverse and remand for the trial court to resentence the appellant and award prison credit for his time served prior to his violation of probation.

REVERSED.

WEBSTER, POLSTON, and HAWKES, JJ., concur.


author: SHAHOOD, J.

text:
    David RAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3841.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

We affirm appellant’s conviction on the charge of robbery with a weapon. Appellant raises as his final issue on appeal that the trial court erred in sentencing him as a prison releasee reoffender based on inadmissible hearsay evidence. We affirm as to this issue based on this court’s recent en banc opinion in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), and Corker v. State, 937 So.2d 757 (Fla. 4th DCA 2006). As in Yisrael and Corker, we also certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005).

Affirmed.

STONE and HAZOURI, JJ., concur.


author: HAZOURI, J.

text:
    Willems CALIXTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2022.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Willems Calixte appeals his convictions on two counts of robbery with a firearm and one count of kidnapping with a firearm in his possession. We reverse and remand for a new trial.

Calixte raises four points on appeal: (1) the trial court abused its discretion in permitting the investigating detective to testify that stolen property is rarely recovered and that there is often a discrepancy between the defendant’s appearance and the description of the perpetrator given by crime victims; (2) the trial court erred in denying Calixte’s motion for judgment of acquittal for kidnapping; (3) the trial court erred in denying Calixte’s motion to recuse the trial judge; and (4) the trial court erred in denying Calixte’s motion for new trial based on ineffective assistance of counsel in failing to adequately investigate Calixte’s alibi defense. We affirm without comment as to points two, three and four. We find merit in point one and reverse and remand for a new trial.

The sole evidence against Calixte was his positive identification as the perpetrator by the two victims, Ron and Warren Winston. There was no other evidence, physical or otherwise, that Calixte was involved in the robbery. None of the articles taken from the Winstons were ever recovered. The Winstons had described the robber as standing about 6 feet tall, with a muscular build. Calixte is 5 feet 7 inches tall and weighs 150 pounds.

Calixte became a suspect when a friend of the Winstons showed them a news article describing an attempted robbery in which two of the four perpetrators were killed by the intended victim. Two others, including Calixte, survived. In the news article there were four photographs. The Winstons noted that one of the photographs looked familiar and concluded that Calixte, who was pictured in the news article, was the person who robbed them. After seeing this picture, the Winstons prepared a police sketch and subsequently picked Calixte’s picture from a photo lineup. At trial, although the Winstons positively identified Calixte as the perpetrator, they conceded that he looked different from the way the robber looked at the time of the crime: his skin was lighter, he was wearing glasses, and he had lost weight. There was also a discrepancy in the height.

The investigating detective testified over objection that based on his training and experience in eight years in the robbery unit, a victim’s property is rarely recovered unless the perpetrator is caught immediately after the incident occurred. In an attempt to explain the discrepancy in the description given by the victims to the investigating detective, the detective was permitted to testify over objection that such discrepancies are normal and it often occurs in the cases he investigates, particularly in reference to descriptions of height because the person who is being robbed has a traumatic experience and “the height is not going to be exactly what the perpetrator is and very rarely in the case they get it exactly on the nose.”

Calixte asserts the trial court abused its discretion in admitting the above referenced testimony from the investigating detective and the error was harmful, entitling him to a new trial. We agree.

In Williams v. State, 619 So.2d 1044 (Fla. 4th DCA 1993), the defendant was charged with an armed robbery. Williams’s mother testified at trial that he was home at the time the crime occurred. Defense counsel called the deputy who investigated the case to testify in order to point out inconsistencies in the yictims’ descriptions of the assailants at the time of trial as compared to their descriptions immediately after the incident. The cross-examination by the state went as follows:

[STATE]. Sir, it’s not uncommon for victims of a crime like this to remember things, evidence later?
[DEFENSE]. Objection as to relevancy. [COURT], Overruled. Well. Maybe you want to qualify it before I let you go into that area.
[STATE]. Sir, you have been in law enforcement 20 years—
[DEFENSE]. Excuse me. I object to what other victims in other crimes experienced. It has no' relevancy to this case. These victims were here. Other victims are not here.
[STATE]. It’s directly relevant on their ability to give a description.
[COURT], I’ll overrule the objection. [STATE]. You have been a law enforcement officer 20 years you said?
A. Correct.
Q. You have come in contact with a lot of armed robberies?
A. Yes.
Q. And victims of crimes such as this and violence such as this?
A. That’s correct.
Q. As such you have become aware of descriptions that victims give at the scene, correct?
A. That’s correct.
Q. There may be later descriptions or other evidence that they might remember, correct?
A. That’s correct.
Q. Isn’t it true it’s not unusual for them to remember additional evidence as time goes on?
A. That’s true.
Q. Different than what they might remember at the scene—
A. Yes.
Q.-when they are still affected by the crime?
A. That is true.

Id at 1046. This court held that the trial court “erred not only because this evidence is irrelevant, but also because it amounted to an improper comment on the reliability of eyewitness identification.” Id

In Cyprian v. State, 661 So.2d 929 (Fla. 4th DCA 1995), the defendant was charged with robbery and the state’s case relied upon the victim’s identification of her attacker. At the time of the robbery, the victim reported that she was “unsure” if she could identify her attacker but gave a general description. However, when the detective who investigated the crime showed her a photo lineup, she identified the defendant and was 100% sure. When questioning the detective, the state tried to elicit testimony as to whether it was common for victims in robberies to be unable to identify their attackers at first but later identify them with certainty. The colloquy was:

Q. Now referring to the statement that Counsel-I mean, that you just indicated to us previously about she would probably be unsure to identify an individual, is it unusual after an event like this to give a description and say that I many [sic] not be able to identify an individual or they may be unable to identify the individual?
[DEFENSE COUNSEL]: Your Honor, I object to this. It is clearly irrelevant, plus out of the witness’ scope and calls for speculation.
THE COURT: I will sustain the objection as phrased.
BY [PROSECUTOR]: Have you investigated robberies and offenses against persons before this case?
A. Yes.
Q. Okay. And would it be safe to say that a lot of those cases people were upset, frightened people made contact with—
[DEFENSE COUNSEL]: Your Honor, I will object. That is irrelevant, what happens in other cases.
THE COURT: I will sustain the objection.
[PROSECUTOR]: Let me ask you this, is it unusual, based upon your police experience, which is how many years? A. Seven and a half, sir.
Q. Based upon your police experience, would someone say initially they may not be able to identify someone—
[DEFENSE COUNSEL]: Your Honor, I object to this as calling for information not relevant to this case and calls for speculation.
THE COURT: Overrule your objection. BY [PROSECUTOR]: Is it unusual for someone to say that they may not be able to identify someone that in the initial incident and then identify someone in a lineup, show up or photographic lineup?
[DEFENSE COUNSEL]: I object again. That’s clearly-It’s the same question that was just objected to that was just sustained.
THE COURT: I’ll overrule the objection.
A. Not-It’s not unusual for somebody to say that that’s a possibility.
Q. Has it happened in your experience, that same scenario?
A. Yes.

Id. at 929-30. In reversing and remanding for a new trial, this court held: “[W]e find that the questions and answers elicited of the investigating officer during cross-examination by the state in the case at bar are virtually identical to those in Williams and thus require reversal.” Id. at 930.

Because the identification of Ca-lixte was the crucial issue at trial and the testimony of the investigating detective was directly related to this issue, we find that the trial court erred in permitting this testimony and we reverse and remand for a new trial.

STONE and GROSS, JJ., concur.

      . Calixte was apprehended ten days after the robbery occurred.


author: MAY, J.

text:
    Loic GADSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3307.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for burglary of a dwelling. He argues the trial court erred in admitting Williams rule collateral crime evidence. We agree and reverse.

The State charged the defendant with burglary of Valdivia’s home on January 17, 2004. Once the case had been set for trial, the State filed a Notice of Intent to Introduce Evidence Under Section 90.404(2) and 90.402 Florida Statutes (2004). The court conducted a hearing on the Williams rule evidence and determined that evidence of a subsequent burglary would be admitted.

The trial testimony revealed that the victim, Valdivia’s girlfriend, was planting flowers in the front of Valdivia’s home around three o’clock in the afternoon. She saw the defendant inside the home and asked what he was doing there; after a brief verbal exchange, the defendant exited the home and fled in a black sedan. She gave a statement to the police and identified the defendant from a photo lineup. She also identified the defendant at trial.

The State then called the witness from the subsequent burglary of Stone’s residence to establish modus operandi and identification. The witness was the victim Stone’s roommate. She testified that on March 22, 2004, around nine o’clock in the evening, Stone left the residence to walk the dogs. The witness heard noises coming from Stone’s room, went to investigate, and found the defendant in Stone’s bedroom. They froze momentarily; the defendant then fled through the front door and drove away in a white Pontiac. She wrote down the license plate number and contacted the police. Within a couple of hours, the witness identified the defendant from a photo line-up. She subsequently identified the defendant at trial. The police were able to trace the car back to Enterprise Rent-A-Car.

In addition to these witnesses, the State called the victim Valdivia, a crime scene investigator, the detective, and an Enterprise employee. The Enterprise employee testified that the defendant had leased a black Honda Accord from Enterprise on January 17, 2004, and had returned the vehicle on January 28, 2004. The defendant then rented a white Pontiac Grand Am on March 22, 2004, which he returned on March 23, 2004. The defense called the defendant, his daughter, and a friend, all of whom provided an alibi for him. The jury returned a guilty verdict.

The defendant suggests this court should review the issue de novo because it rests on the application of section 90.404(2)(a), Florida Statutes (2005). However, we review trial court decisions concerning Williams rule evidence for an abuse of discretion. See Chandler v. State, 702 So.2d 186 (Fla.1997).

Section 90.404(2)(a) codifies the Williams rule, which provides that any evidence “relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion.” Williams, 110 So.2d at 663. The rule requires the State to file a notice of intent to offer such evidence. § 90.404(2)(c), Fla. Stat. (2005). The trial court then sets a hearing to allow each party to present argument concerning the admission of the evidence:

The trial court followed the proper procedure in this case. At the hearing, the State argued that the evidence would show the defendant’s identity and modus operands he rented cars from Enterprise, committed the burglaries, and then returned the cars. The defense argued that the crimes lacked sufficient similarity and the prejudice of the admission outweighed its probative value.

Our supreme court has reiterated that it “has never required the collateral crime to be absolutely identical to the crime charged.” Chandler, 702 So.2d at 193 (quoting Gore v. State, 599 So.2d 978, 984 (Fla.1992)). Nevertheless, similar crime evidence cannot be admitted when its sole purpose is to prove bad character or propensity. Id. at 192. And, the similarities must be so unusual or so special that they point to the defendant. Drake v. State, 400 So.2d 1217, 1219 (Fla.1981). “A mere general similarity will not render the similar facts legally relevant to show identity.” Id.

In this case, the facts revealed that the defendant rented two cars from Enterprise Rent-A-Car, and parked them on the street close to the victims’ homes. It appeared that both homeowners were visibly outside of the house, one gardening, the other walking her dogs. The defendant entered the homes, unexpectedly encountered someone inside, and fled in the nearby rental ear. While no less harmful to the victims and their property, they are common garden-variety burglaries.

As the defense argues, the burglaries occurred in different areas of the city, at different times of the day, on different days of the week, in different months, and while the residents were occupied with different activities. While the vehicles were both rented from Enterprise, they were not rented solely for the purpose of committing the burglary as can be seen by the different time frames of the rentals.

This case straddles the line of admissibility under Williams. But, the identifiable points of similarity are not of that caliber of special or unusual “ ‘to indicate a relevancy beyond mere similarity in certain particulars.’ ” Williams, 110 So.2d at 659 (quoting 13 Fla. Jur., Evidence § 140). We cannot say that this error was harmless because the identification of the defendant rested on the testimony of a single witness. See, e.g., Kutting v. State, 827 So.2d 311 (Fla. 2d DCA 2002); State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Reversed and Remanded for a New Trial.

POLEN and KLEIN, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . "Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” § 90.404(2)(a), Fla. Stat. (2005).


author: GROSS, J. MAY, J.,

text:
    MEDICAL JET, S.A., Appellant, v. SIGNATURE FLIGHT SUPPORTPALM BEACH, INC., Appellee.
    No. 4D05-1760.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.

      Barbara J. Riesberg of Roth, Rousso, Katsman & Schneider, L.L.P., Aventura, for appellant.
    John M. Murray, Michael G. Shannon and Christopher E. Doran of Murray, Marin & Herman, P.A., Coral Gables, for appellee.
   ON MOTION FOR REHEARING

GROSS, J.

We grant appellee, Signature Flight Support-Palm Beach, Inc.’s, motion for rehearing, withdraw the original panel opinion, and affirm the judgment. Under well established principles of law, the statute of limitations barred appellant, Medical .Jet, S.A.’s, action for breach of contract concerning the inspection and repair of its aircraft.

Medical Jet owned an aircraft registered in Argentina. In 1998, Medical Jet entered into an agreement with appellee, Signature Flight Support-Palm Beach, Inc., providing that Signature Flight would inspect and repair the aircraft. Medical Jet contends that Signature Flight represented that it had current certification from the Argentine aircraft regulatory authority. Signature Flight performed the work and returned the aircraft to Medical Jet on April 23,1998.

According to Medical Jet, the Argentine authorities grounded the aircraft on May 14, 1999 because the plane failed to pass its annual inspection; the reason for that failure was that Signature Flight lacked a current certification number from the Argentine regulatory body.

In 1999, Medical Jet sued Signature Flight for breach of contract. That action was dismissed for failure to prosecute in July, 2003. Medical Jet filed the complaint here at issue on August 27, 2003. The circuit court granted a motion for judgment on the pleadings, ruling that the five-year statute of limitations of section 95.11(2)(b), Florida Statutes (2004), barred the cause of action.

The statute of limitations for a contract founded on a written instrument is five years. See § 95.11(2)(b), Fla. Stat. (2004). “A cause of action accrues [for statute of limitations purposes] when the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (2004). Signature Flight breached the contract when it performed the contract work without the proper certificate from the Argentine government. If the cause of action accrued at the time of the breach, then accrual could have occurred no later than April 23, 1998, the date that Signature Flight returned the plane to Medical Jet. If this is correct, then the August 27, 2003 lawsuit fell outside the five-year statute of limitations.

The dissent believes that the cause of action did not accrue until May 14, 1999, when the Argentine regulatory authority grounded Medical Jet’s aircraft. The basis of that belief is that Medical Jet suffered no actual damages until the plane was grounded on May 14, 1999, and that such damage was the last element giving rise to the cause of action. See § 95.031(1), Fla. Stat. (2004).

For a breach of contract action, it is well established that a statute of limitations “runs from the time of the breach, although no damage occurs until later.” 18 Richard A. Lord, Williston on Contracts § 2021A (3d ed. 1978). Florida has followed this general rule that a cause of action for breach of contract accrues at the time of the breach, “not from the time when consequential damages result or become ascertained.” Fradley v. County of Dade, 187 So.2d 48, 49 (Fla. 3d DCA 1966); see Meyer v. Roth, 189 So.2d 515 (Fla. 3d DCA 1966). This court cited Fradley and Meyer with approval in Dovemnuehle, Inc. v. Lawyers Title Ins. Corp., 478 So.2d 423, 424 (Fla. 4th DCA 1985).

The general rule is consistent with the policy behind the statute of limitations, which is to “prevent unreasonable delay in the enforcement of legal rights” and “to protect against the risk of injustice.” Hawkins v. Barnes, 661 So.2d 1271, 1272 (Fla. 5th DCA 1995). The rule provides an “objective, reliable, predictable and relatively definitive” rule that has “long governed this aspect of commercial repose of disputes.” Ely-Cruikshank Co., Inc. v. Bank of Montreal, 81 N.Y.2d 399, 599 N.Y.S.2d 501, 615 N.E.2d 985, 988 (1993). This is not one of those exceptional cases where the general rule does not apply. See 18 Williston, at § 2026A. The dissent’s approach to the “accrual” concept in breach of contract cases seeks to introduce the delayed discovery doctrine into Florida contract law. The supreme court rejected an expansion of the delayed discovery doctrine in Davis v. Monahan, 832 So.2d 708 (Fla.2002).

The general rule is consistent with the wording of section 95.031(1) that ties “accrual” to the occurrence of the last element giving rise to a cause of action. Since at least nominal damages are sustained at the time of a breach of contract, all of the elements necessary to maintain a lawsuit and obtain relief in court are present at the time of the breach. See Abbott Lab., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000); Ely-Cruikshank Co., 599 N.Y.S.2d 501, 615 N.E.2d at 986-87; T & N PLC v. Fred S. James & Co. of New York, Inc., 29 F.3d 57, 59-60 (2d Cir.1994) (applying New York law).

Courts in other jurisdictions recognize that the statute of limitations in a breach of contract action accrues at the time of the breach, even though the actual damage does not occur until later. See Howarth v. First Nat’l Bank of Anchorage, 540 P.2d 486, 490-91 (Alaska 1975) (stating that the statute of limitations usually “begins to run in contract causes of action” at “the time of the breach of the agreement, rather than the time that actual damages are sustained as a consequence of the breach”); First Trust Nat’l Ass’n v. First Nat’l Bank of Commerce, 220 F.3d 331 (5th Cir.2000); Cavanaugh v. City of Omaha, 254 Neb. 897, 580 N.W.2d 541, 544 (1998) (holding that a “cause of action in contract accrues at the time of the breach or failure to do the thing that is the subject of the agreement,” even though “the plaintiff may be ignorant of the existence of the cause of action”); State v. Holland Plastics Co., 111 Wis.2d 497, 331 N.W.2d 320, 325 (1983).

A case similar to this one is ABB Industrial Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351 (2d Cir.1997), because it involves a breach of contract where a plaintiff incurred damages years after the breach as a result of action required by a governmental agency. In that case, ABB Industrial purchased real property on September 11, 1985; the vendor warranted that “the property was in compliance with all environmental laws.” Id. at 354. After 1989, ABB learned that the property was contaminated by hazardous chemicals, in violation of two federal environmental statutes. In 1992, ABB began the extensive cleanup of the site required by the environmental laws.

ABB filed suit against the vendor for breach of contract on September 18, 1991, six years and one week after it closed on the property. Id. at 360. The applicable statute of limitations was six years. Id. The second circuit rejected the argument that the statute of limitations began to run at some point after the contamination was discovered, when ABB incurred damages to clean up the property; the court held that the “contract was breached, if at all, on the day it was executed,” so that the statute began to run on September 11, 1985. Id.

Other cases similarly hold that a breach of contract action accrues at the time of the breach, not when later events create the bulk of a plaintiffs damages.

For example, in Nardo v. Guido DeAscanis & Sons, Inc., 254 A.2d 254 (Del.Sup. Ct.1969), a building contractor breached a contract in 1957 by improperly placing roof rafters. The buyers noticed dampness problems in 1959, but did not realize that the condition arose from the placement of the rafters. After attempts to fix other dampness conditions, the buyers became aware of the rafters installation problem in 1965 or early 1966. Id. at 255. The buyers filed suit against the contractor on July 3, 1967, claiming breach of contract and negligence. The Delaware court held that the cause of action for breach of contract accrued at the time of the breach, “in 1957 when the roof rafters were improperly installed,” so that the claim was barred by the statute of limitations. Id. at 256; see also Kennedy v. Johns-Manville Sales Corp., 135 Conn. 176, 62 A.2d 771 (1948) (holding that where contractor defectively installed wall insulation in 1935, but the injuries did not “become apparent until December, 1945,” the cause of action for breach of contract accrued in 1935, so that the action was barred by the statute of limitations).

Similarly, Johnson v. Crisler, 156 Miss. 266, 125 So. 724 (1930), involved a breach of contract action against an “abstractor of titles to land” who “made a false certificate to such abstract of title” on February 2, 1925 that certain property was free of liens. Later, it appeared that the property was subject to a special tax assessment. The Supreme Court of Mississippi held that the cause of action accrued at the time of the breach, February 2, 1925, not the later time when the damages from the breach occurred, i.e., when an assessment was applied to the property. Id. at 724-25.

For these reasons, we affirm the judgment of the circuit court.

IMPERATO, CYNTHIA G., Associate Judge, concurs.

MAY, J., dissents with opinion.

MAY, J.,

dissenting.

I respectfully dissent. The majority has charted a new course from the original decision. I decline to follow.

The statute of limitations defense in this case caused three legal theories to be addressed: (1) the statute of limitations in breach of contract actions; (2) the accrual of a cause of action; and (3) the inapplicability of the delayed discovery doctrine. In the original opinion, we relied on well-established law on the accrual of a cause of action. In its motion for rehearing, the defendant suggests that this court’s opinion conflicted with other cases. For the reasons expressed below, I disagree that our original opinion was in conflict with those cases and would adhere to our original decision to reverse.

The majority accurately sets out the relevant facts and those aspects of the law that support its decision. It chooses, however, to overlook the elephant in the room — the case law’s failure to reconcile the law on the accrual of a cause of action and the statute of limitations in breach of contract actions. The problem is that each case relied on by the defendant has independently addressed only one of the issues. None have attempted to reconcile the three theories or explain how they interrelate. I simply choose to call attention to the elephant.

I reject the majority’s suggestion that by confronting the issue, I somehow introduce the delayed discovery doctrine into Florida contract law. I agree that the delayed discovery doctrine does not apply to breach of contract actions. See Davis v. Monahan, 832 So.2d 708 (Fla.2002). That is not what this case is about. It is not about Medical Jet’s late discovery of its cause of-action, rather this case is about the fact that damages did not arise, and Medical Jet’s cause of action did not accrue, until a ye_ar after the breach occurred.

A close review of the cases relied upon by the majority and the defendant reveal why they do not dictate a reversal. In Dovenmuehle, Inc. v. Lawyers Title Insurance Corp., 478 So.2d 423 (Fla. 4th DCA 1985), this court found that a cause of action accrued when the damage occurred and the plaintiff knew or should have known of the breach. Because the damage occurred at the same time as the breach, the issue before us in this case was not raised in Dovenmuehle.

State Farm Mutual Automobile Insurance Co. v. Lee, 678 So.2d 818 (Fla.1996), addressed the accrual of a cause of action for breach of an insurance policy for PIP benefits. The supreme court relied upon specific statutory language to reach its conclusion. But, just as in Dovenmuehle, the damages had occurred at the time of the breach unlike the facts in this case.

It is Abbott Laboratories, Inc. v. General Electric Capital, 765 So.2d 737 (Fla. 5th DCA 2000), that appears at first blush to be most problematic. Whittled down to its essence, the defendant in Abbott raised a statute of limitations defense in a contract dispute involving a third party. The plaintiff argued that it was not damaged until after the breach by the third party. Relying on this court’s opinion in Muroff v. Dill, 386 So.2d 1281 (Fla. 4th DCA 1980), the Fifth District held that the plaintiffs injury occurred simultaneously with the defendant’s breach because nominal damages were sustained at that time.

Muroff, however, had nothing to do with the statute of limitations in breach of contract actions. The Muroff court addressed a plaintiffs failure to prove the correct measure of damages in a breach of contract action. There, we stated that “ ‘[njominal damages may be awarded when the breach of an agreement or invasion of a right is established since the law infers some damage to the injured party....’” Id. at 1284 (quoting Beverage Canners, Inc. v. Cott Corp., 372 So.2d 954, 956 (Fla. 3d DCA 1979)). Thus, the fiction of imputing nominal damages was created to substitute for a lack of proof of damages, not to somehow prematurely activate the statute of limitations.

The defendant’s reliance on language found in Fradley v. County of Dade, 187 So.2d 48 (Fla. 3d DCA 1966) (“the cause of action accrues from the time of the breach or neglect, not from the time when consequential damages result or become ascertained”), while supportive, is dicta. The actual holding in Fradley was that the plaintiffs failure to comply with the notice of claim statute in a medical malpractice action barred the claim.

The common theme running through these cases is that when the breach is evident, nominal damages will be presumed, and the cause of action will accrue at the time of the breach. However, not one of these cases has tackled how this fiction of presumed damages exists simultaneously when the breach is not evident. More importantly, they fail to address the statutory requirement that “[a] cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (2005).

The majority acknowledges that the cause of action accrues when the last element constituting the cause of action occurs, but must assume that the breach itself is always the last element triggering the statute of limitations. While acknowledging that language found in treatises and cases support this view, I wonder whether the treatises and cases have ever really addressed the issue or rather have simply fallen back on repeating language found in prior decisions where the issue has never been squarely met.

Section 95.11(2)(b), Florida Statutes (2003) provides that “[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument” must be commenced within five years. “[A] cause of action cannot be said to have accrued, within the meaning of the statute of limitations, until the action may be brought.” Lee, 678 So.2d at 821 (citing Loewer v. N.Y. Life Ins. Co., 773 F.Supp. 1518, 1521 (M.D.Fla.1991)). The elements for bringing a cause of action for breach of contract are: (1) a valid contract; (2) material breach; and (3) damages. J.J. Gumberg Co. v. Janis Servs., Inc., 847 So.2d 1048, 1049 (Fla. 4th DCA 2003).

The real issue in this case is when did plaintiffs cause of action accrue? In this case, the last element giving rise to the cause of action was the damages that arose from the grounding of the plane. Had the airplane never been grounded, the plaintiff would not have sustained damage. Thus, the actual breach, the defendant’s failure to have certification at the time it inspected and repaired the aircraft, could not be the accrual date for the cause of action.

I would therefore reverse and remand the case to the trial court for reinstatement of the plaintiffs second amended complaint.

      . The plaintiff's main argument on appeal was that the trial court erred in granting the defendant's motion for judgment on the pleadings, having previously denied a motion to dismiss on the same basis. In its answer brief, the defendant argued the validity of the trial court’s decision — the claim was time barred because the breach occurred and the statute of limitations began to run upon the delivery date of the airplane.


text:
    Lois Lovett GIANOS, as Administrator Ad Litem of the Estate of Nick Gianos, deceased and on behalf of the survivors thereof, Appellant, v. Deborah R. BAUM, M.D. and Greene, Jacobson & Baum, M.D., P.A., Appellees.
    No. 4D05-3073.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.

      Bard D. Rockenbach and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Robert T. Bergin, Jr. of Robert T. Bergin, Jr., P.A., West Palm Beach, for appellant.
    Cayla B. Tenenbaum and Marlene S. Reiss of Stephens, Lynn, Klein, LaCava, Hoffman & Puya, P.A., Miami, for appel-lees.
   PER CURIAM.

The appellant, Lois Lovett Gianos, as Administrator Ad Litem of the Estate of Nick Gianos, appeals from the trial court’s order granting final judgment in favor of the Defendants, Deborah R. Baum, M.D. and Greene, Jacobson & Baum, M.D., P.A., in a medical malpractice case. We reverse and remand for a new trial because the trial court abused its discretion in prohibiting the plaintiff from commenting in closing argument that the defendant did not present the testimony of a pathologist at trial.

Mr. Gianos, who was obese, developed severe heart problems in September 1999 and underwent quadruple bypass surgery in March 2000. After undergoing the surgery and rehabilitation, Mr. Gianos appeared to recover. However, in a routine medical examination, Dr. Lewis discovered a growth or nodule in Mr. Gianos’s right lung. Dr. Lewis referred Mr. Gianos to Dr. Deborah Baum, a specialist in pulmonary medicine, who after determining that the growth was cancerous, arranged for the nodule or growth to be removed by a surgeon. After surgery, Mr. Gianos was admitted to the Intensive Care Unit (ICU), where he remained for approximately two days before moving to the Rockwell Suites at Boca Raton Community Hospital. He was moved back to the ICU one week later because he developed aspiration pneumonia. He stayed in the ICU for ten or eleven days before improving to the point that he was moved back to the Rockwell Suites on September 24, 2002. During the days he stayed in the suites, a nurse or therapist occasionally had to remove mucus that was accumulating in his mouth.

On September 25, 2002, around 5:30 p.m., a nurse contacted Dr. Baum and reported that Mr. Gianos had stridulous breathing. Dr. Baum determined that it was stridor, a harsh sound caused by upper airway obstruction, and ordered a ne-bulizer treatment of epinephrine and albu-terol. Dr. Baum did not come to the hospital at that time, but issued an order that she was to be contacted in the event Mr. Gianos’s condition worsened. At 9:50 p.m., Dr. Baum was contacted again because Mr. Gianos’s blood oxygen saturation was down to 85% and the stridor had increased. Dr. Baum ordered a chest x-ray, more medication, and that Mr. Gia-nos be transferred back to the ICU. Dr. Baum still did not come to the hospital.

Between 10:30 p.m. and 11:00 p.m., the nurse again contacted Dr. Baum to give her the results of the blood gas tests and to ask if it was all right for Mr. Gianos to sit in a chair because Mr. Gianos was more comfortable and able to breathe more easily sitting in a chair. Dr. Baum approved Mr. Gianos sitting in a chair, and Dr. Baum ordered a chest x-ray to be done in the morning. Around 2:30 a.m., September 26, 2002, the nurse noted stridor again and that Mr. Gianos’s saturation was down to 60%-70%. Concerned that the secretions might be blocking the airway, the nurse put him on 100% oxygen. At 2:54 a.m., his respiration was shallow and he had agonal breathing. The nurse called a “code blue” and started the “ambu bag.” The respiratory therapist was called in at 3:05 a.m., and Mr. Gianos was placed on a ventilator with 100% oxygen. However, the staff had difficulty getting the oxygen in because something was impeding it. After two to three minutes, it became clear the ventilator was having no effect. The staff then tried to suction the airway to clear it of the secretions obstructing it. This had no effect, and Mr. Gianos was not placed on the ventilator again. Consequently, Mr. Gianos went into cardiopulmonary arrest and died at 3:53 a.m.

Thereafter, plaintiff, Lois Lovett Gianos, as Administrator of the Estate of her husband, Mr. Gianos, brought this action for medical negligence against Dr. Baum. Plaintiff alleged that Dr. Baum failed to exercise reasonable care and deviated from the professional standard of care by failing to act on the signs and symptoms implying a critical upper airway obstruction, and by not directly evaluating Mr. Gianos or requesting evaluation by an individual capable of determining if Mr. Gianos suffered from an upper airway obstruction. Plaintiff further alleged that Dr. Baum’s failure to timely and appropriately intervene was the direct and proximate cause of Mr. Gianos’s death.

At trial, the plaintiff presented the testimony of Dr. Jesse Hall, M.D., a board certified internist and critical care physician, who testified regarding the standard of care. Dr. Hall concluded that when Dr. Baum received the 9:50 p.m. phone call, she had a duty to arrange for a physician to inspect Mr. Gianos’s airway within the next hour and that her failure to do so deviated from the prevailing standard of care. Furthermore, he testified that it was more likely than not that had Dr. Baum inspected the airway or ordered another physician to do so, the complete airway obstruction could have been prevented.

The plaintiff also presented the testimony of Dr. Fatteh, a pathologist, who had performed the autopsy following Mr. Gia-nos’s death. His autopsy found that Mr. Gianos had an obstruction of the upper half of the trachea, a partial obstruction of the lower half of the trachea, and a complete obstruction of the main bronchi by a combination of aspirated material and mucus. Mr. Gianos’s obstruction was so severe that it caused Mr. Gianos’s lung to collapse, leading to his respiratory failure and ultimate death. The plaintiff presented another expert pathologist, Dr. Grover Hutchins, who opined that the cause of death was an upper airway obstruction due to mucus obstructing the trachea. Dr. Hutchins testified that he did not see any evidence of tension pneumothorax, a condition that develops where there is a hole in the surface of the lung that could cause lung collapse.

In response, the defendant presented only the testimony of Dr. William Fulker-son, who is not a pathologist, but an expert in internal medicine, pulmonary disease, and critical care. The most significant portion of his testimony was his conclusion that tension pneumothorax was the direct and proximate cause of Mr. Gianos’s cardiac arrest and subsequent death. His conclusion was in direct contradiction to the plaintiffs expert pathologists, who opined that the cause of death was upper airway obstruction due to mucus. Dr. Fulkerson based his conclusion on the emergency physician’s code report that indicated that the ambu bag became easier after needle decompression, which allowed air to escape and alleviated the pneumothorax. Accordingly, Dr. Fulkerson concluded that the cause of death was pneumothorax, not airway obstruction, and that Dr. Baum did not violate the standard of care.

Dr. Fulkerson further testified that secretions and bodily fluids in general tend to collect in the sides and the flanks of the body during the post-mortem period, and therefore, the mucus plug developed after Mr. Gianos died. The plaintiff objected to this testimony, arguing that Dr. Fulker-son’s testimony about post-mortem secretions should not be admitted into evidence because the testimony concerned a pathology matter, and Dr. Fulkerson was not a pathologist. The trial court overruled the objection.

Plaintiffs counsel later commented in closing that the defense failed to present testimony from a pathologist during trial:

Remember, the greater weight of the evidence is the more persuasive force and affect of the entire evidence in the case. And we have an autopsy report from an eminent, well-qualified pathologist. We have the Chief of Autopsy/Pathology at Johns Hopkins. And we don’t have any pathologists on the Defendant’s side.

(emphasis added). Defense counsel objected to this comment, and the trial court sustained the objection and advised the jury to disregard the comment. The jury returned with a verdict for the defendant.

The plaintiff, Ms. Gianos, argues two points on appeal. First, Ms. Gianos argues that the trial court abused its discretion when it allowed Dr. Fulkerson to testify on a pathology matter, specifically whether and where secretions would collect during the post-mortem period, when Dr. Fulkerson was not a pathologist. Secondly, Ms. Gianos argues that the trial court erred by prohibiting plaintiffs counsel from commenting during closing argument on the defendant’s failure to call a pathologist.

First, we conclude that the trial court did not abuse its discretion in allowing Dr. Fulkerson to testify on a pathology matter. A trial court’s decision on the qualifications of an expert is ordinarily conclusive, and entitled to great weight on appeal, unless it is shown that the trial court applied an erroneous legal standard. Lake Hosp. & Clinic, Inc., v. Silversmith, M.D., 551 So.2d 538, 545 (Fla. 4th DCA 1989). To qualify as an expert in a given area, it must be shown that the witness acquired special knowledge of the subject matter either by study or through experience. Id.

We find that Dr. Fulkerson, a board-certified pulmonologist and critical care physician, was qualified to give an opinion regarding post-mortem changes in the body, specifically in the upper and lower airway. Dr. Fulkerson also testified that he had knowledge as to what happens to secretions in the post-mortem period based on his training as a physician and work in pathology in medical school. Although the fact that he may not have been board-certified in pathology might have had a bearing on the weight and credibility given to his testimony, it did not render him incompetent to testify as to his opinion.

We do, however, find error and an abuse of discretion in the trial court’s decision to preclude the plaintiff from commenting during closing argument that “we don’t have any pathologists on the Defendant’s side.” Plaintiffs counsel simply commented on the defendant’s failure to present testimony of a witness with certain qualifications, namely a pathologist. As such, the comment was appropriate because it was a comment on the defendant’s lack of evidence to rebut the plaintiffs evidence. We find support for our conclusion in Williams v. State, 882 So.2d 1082 (Fla. 4th DCA 2004), where counsel for the State in a civil proceeding under the Jimmy Ryce Act argued, “I submit to you the evidence is clear. The defense never put on an expert to counter [the State’s expert witness]. You heard from one expert.” This Court held that such a comment was appropriate, explaining:

In civil cases, attorneys are afforded great latitude in presenting closing arguments, as long as their comments are confined to arguing the application of law to the evidence presented in the case, as well as logical deductions therefrom. [citations omitted]. In this case, counsel’s argument constituted fair comment on the record evidence which, as it stood, lacked any defense rebuttal of the testimony of the State’s expert as to defendant’s propensity to commit new sexually violent offenses.

Id. at 1084.

In this case, it was undisputed that the defendant did not present any testimony from a pathologist, and under these circumstances, the comment by plaintiff that the defendant did not present any evidence from a pathologist was a fair comment on the evidence presented. The trial court should have allowed the plaintiff to comment on the failure of the defendant to call a pathologist, and for this reason, a new trial is warranted.

Thus, the final judgment in favor of the defendants, Dr. Baum, M.D. and Green, Jacobson & Baum, M.D., P.A. is reversed, and we remand for a new trial.

Reversed and Remanded for New Trial.

GUNTHER, FARMER, JJ., and KRATHEN, DAVID H., Associate Judge, concur.


text:
    Udra DEMERS, Appellant, v. Adam HAMMILL, Appellee.
    No. 4D05-4722.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Siobhan Helene Shea of Siobhan Helene Shea, Appellate Practice, Palm Beach, for appellant.
    Robert J. Gorman and J. Birt Reynolds of Robert J. Gorman, P.A., Fort Pierce, for appellee.
   PER CURIAM.

Affirmed. See Wade v. Hirschman, 903 So.2d 928 (Fla.2005).

GROSS, HAZOURI, JJ., and MAASS, ELIZABETH T., Associate Judge, concur.


text:
    Kimberly LaLONDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3229.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Kimberly LaLonde, Fort Lauderdale, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant, Kimberly LaLonde, appeals the trial court’s order denying her rule 3.800(a) motion to correct illegal sentence, alleging that she has not received the appropriate credit for time served. We affirm in part and reverse in part. Appellant alleges that she was required, as a condition of community control, to enter into a drug and alcohol treatment facility. Appellant is entitled to credit for time spent in jail awaiting placement into a drug treatment facility imposed as a condition of probation or community control. Bamishin v. State, 927 So.2d 68, 71 (Fla. 1st DCA 2006), rev. dismissed, 939 So.2d 1057 (Fla.2006); Scott v. State, 805 So.2d 926, 927 (Fla. 2d DCA 2001). Accordingly, we reverse the trial court’s order and remand for the trial court to grant the appellant credit for the time spent in jail while waiting for placement into the drug treatment facility.

POLEN, FARMER and MAY, JJ„ concur.


text:
    Luis Miguel CORDOVA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2325.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before GERSTEN, and FLETCHER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Cregan, 908 So.2d 387 (Fla.2005).


author: FARMER, J.

text:
    Calvin DORSETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1402.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

In his criminal trial on felony charges, defendant contends that the trial court erred in denying his cause challenges to potential jurors. We agree. While defendant cites the rejection of challenges to four prospective jurors on appeal as error, we need address only one of them. See, Jenkins v. State, 824 So.2d 977, 980 (Fla. 4th DCA 2002) (seating a single juror whose impartiality may reasonably be questioned is a structural error not subject to harmless error analysis).

A defendant may not be required to overcome misconceptions and preconceptions of jurors to avoid a guilty verdict. See, Slater v. State, 910 So.2d 347, 348 (Fla. 4th DCA 2005) (citing Hill v. State, 477 So.2d 553, 556 (Fla.1985)). Jurors must start out as impartial, forming opinions only from the evidence produced during trial and from the law given by the judge; any doubt as to one’s impartiality should lead to excusal of that juror for cause. Lewis v. State, 931 So.2d 1034, 1039 (Fla. 4th DCA 2006) (citing Singer v. State, 109 So.2d 7, 24 (Fla.1959)).

In voir dire, defense counsel commented that the burden of proof rested solely on the State and that defendant could not be required to prove anything at trial. Defense counsel then asked a potential juror whether she thought that was fair. Her response was: “I think that you have to prove he’s innocent.” Exploring further, counsel then inquired how “someone [would go] about proving something did not happen.” She reaffirmed her belief that defendant had to prove his innocence by replying “they hire you.” Nothing in the record indicates that she ever receded from that preconception.

A juror is not impartial when she has difficulty accepting and employing the presumption of innocence. See, Overton v. State, 801 So.2d 877, 891-93 (Fla.2001); see also, Hamilton v. State, 547 So.2d 630 (Fla.1989), Huber v. State, 669 So.2d 1079, 1082 (Fla. 4th DCA 1996); Lowe v. State, 718 So.2d 920 (Fla. 4th DCA 1998). This juror’s responses were sufficient to establish her lack of impartiality. It was error for the trial court to deny the challenge for cause.

Reversed for New Trial.

SHAHOOD, J. and LEWIS, TERRY P., Associate Judge, concur.