author: WARNER, J.

text:
    Glen IKALINA, Appellant, v. The CITY OF PEMBROKE PINES, Appellee.
    No. 4D06-2411.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2007.
    Rehearing Denied Feb. 22, 2008.

      David B. Pakula of David B. Pakula, P.A., Pembroke Pines, for appellant.
    Carlos E. Mustelier, Jr. of Boyd Muste-lier Smith & Parker, P.L., Miami, for ap-pellee.
   WARNER, J.

When a police officer of the City filed suit against the City for breach of an agreement reached in an arbitration proceeding between the City and the officer, the trial court referred the matter back to the arbitrator. The arbitrator determined that the City had not breached its contract. Based upon the arbitrator’s determinations, the court dismissed the officer’s suit. He appeals claiming that the matter was not properly referred to the arbitrator and the arbitrator exceeded his authority in determining the issue before him. We disagree and affirm.

Glen Ikalina, a policeman with the City of Pembroke Pines, was suspended by the City and sought arbitration through his union’s grievance procedures. The parties agreed to a settlement on February 11, 2004, in which Ikalina agreed to retire. Specifically, the agreement provided:

Grievant/Employee will retire in good standing on April 16, 2004 subject to all other provisions of this agreement. Upon his retirement Grievant/Employee will receive all standard/normal retirement benefits that any other police department employee receives and will be entitled to use his existing leave accruals and the City will contribute the difference so that Grievant/Employee will have 1,000 hours accrued leave to cash in for pension purposes.
3.0 Beginning on February 12, 2004, Grievant/Employee shall be placed on paid administrative leave with no reporting requirements by the City. Griev-ant/Employee will continue to enjoy all benefits provided to all other Police Benevolent Association members on paid status-said leave to continue until his retirement date of April 16, 2004. However, if the CBA referenced in paragraph 6.0 and the new pension ordinance also mentioned in paragraph 6.0 are approved subsequent to April 16, 2004, Grievant/Employee will continue to receive the same until both the CBA and new pension ordinance are approved. Grievant/Employee shall turn in City issued equipment at the Police Department by February 12, 2004 at noon.

The agreement also provided that the arbitrator retained jurisdiction for purposes of carrying out the terms of the agreement.

On April 15, 2004, the day before Ikali-na agreed to retire, he appeared before the Pension Board to apply for and request participation in the DROP Program. This program is available to active City employees who have attained “normal retirement status” under section 34.43 of the City’s code of ordinances. City of Pembroke Pines, Fla., Code of Ordinances § 34.43 (2004). Pursuant to section 34.52(C)(3), DROP participants may continue working for up to five years. During this period, the participants’ pension payments are deposited into an interest bearing DROP account. § 34.52(C)(5). An individual’s involvement in the DROP program terminates in four ways: when the participant either “[ejlects in writing ... to cease participation,” “realizes the maximum participation period,” “[terminates his employment as a police officer or firefighter,” or “[d]ies.” § 34.52(C)(8)(a)-(d).

It is not clear from the record whether the Pension Board determined that Ikalina qualified for the DROP program. Nevertheless, because Ikalina retired pursuant to the terms of the settlement agreement on April 16th, the City claimed that he was no longer in its employ and his ability to participate terminated pursuant to § 34.52(C)(8).

Ikalina filed a complaint against the City alleging that it breached the settlement agreement by failing to provide him with normal retirement benefits. He also requested a declaratory judgment as to his rights. The City moved to dismiss the complaint and to refer it to the arbitrator who still retained jurisdiction over the settlement agreement. The court abated the action while the arbitrator considered the issue.

After receiving submissions from the parties, the arbitrator determined that the City had complied with the agreement. Specifically, the arbitrator found:

The parties complied with paragraph 2 of the Settlement Agreement requiring Ikalina to retire under the Normal Retirement provisions of the Pension Fund effective April 16, 2004, and thus end his employment as a City police officer effective April 17, 2004.
As intended by the parties and clearly stated in paragraph 2 of the Settlement Agreement, Ikalina retired and, thus, left the employ of the City. Moreover, under the Pension Plan’s specific language pertaining to the DROP program, DROP terminates or ends when the police officer’s employment ends. Thus, by Ikalina signing the Settlement Agreement, his last day of employment as a City police officer was April 16, 2004. It follows, accordingly, that after such date he was no longer eligible for DROP.

After the arbitrator ruled, the City renewed its motion to dismiss, which the trial court granted based upon the findings of the arbitrator. The court found that the arbitrator did not exceed his authority in ruling on the issue of compliance with the agreement. Ikalina appeals this ruling.

We hold that the court did not err in referring back to the arbitrator the matter of the interpretation of the settlement agreement and whether the parties properly carried out its terms. The settlement agreement specifically provided for the retention of jurisdiction by the arbitrator to carry out the terms of the settlement agreement. “Arbitration provisions are contractual in nature, construction of such provisions and the contracts in which they appear remains a matter of contract interpretation.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). Here, the arbitrator was asked to determine whether the City had properly carried out the terms of the settlement agreement when it refused to recognize Ikalina’s continued right to work under DROP, when Ikalina had agreed to retire on April 16, 2004. This was within the reserved jurisdiction of the arbitrator.

Ikalina makes a mistake when he claims that under the settlement agreement he was entitled to all benefits, including DROP, when he reached normal retirement status on April 16, 2004. The agreement did not provide this. It quite clearly provided that Ikalina would retire, and he would receive all of the benefits that retired officers would receive. There is a difference. When one retires, one stops working. Attaining retirement status does not necessarily require one to stop working; it merely means that the employee has attained the necessary requirements to retire (i.e., met the retirement requirements of the pension plan). The settlement agreement unambiguously requires Ikalina to actually retire and leave the employ of the City. The agreement provides that he was placed on administrative leave with no reporting requirements the day after the settlement agreement was signed. He was also required to turn in all of his City issued equipment. On its face, the agreement required Ikalina to retire. At that point he was no longer employed by the City and thus ineligible for benefits which require actual employment, as does DROP.

The question of whether the City was providing the appropriate benefits, including DROP, was a question of whether the City had properly carried out the terms of the agreement. The trial court did not err in adopting the arbitrator’s findings and dismissing this case.

Affirmed.

GROSS, J., and CHUMBLEY, DOUGLAS J., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Neil LEFF and Physicians Financial Consultants Corporation, Appellants, v. Steven ECKER, M.D., Appellee.
    No. 3D06-2175.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    Rehearing and Rehearing En Banc Denied Feb. 7, 2008.

      Rumberger, Kirk & Caldwell, P.A., and Stuart L. Cohen, and Michael R. Holt, and Eric L. McAliley, Miami, for appellant.
    Hall, Lamb and Hall, P.A., and Adam S. Hall, Miami, and Andrew Hall, for appel-lee.
    Before GREEN, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Defendants, Neil Leff and Physicians Financial Consultants Corporation, appeal an order denying their renewed motion to enforce settlement agreement. We reverse.

We are not persuaded by the plaintiffs argument that mutual mistake allows him to avoid the parties’ agreement, reached after a mediation conference. A party may avoid a contract by proving mutual mistake regarding a basic assumption underlying the contract. Rawson v. UMLIC VP, L.L.C., 933 So.2d 1206, 1210 (Fla. 1st DCA 2006). However, to prevail on this basis the party must also show he did not bear the risk of a mistake. Id. A party to an agreement bears the risk of a mistake when “he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient.” Rawson, 933 So.2d at 1210 (citing Restatement (Second) of Contracts, § 154 (1979)).

In this case the record amply establishes that plaintiff went into the mediation conference without a clear picture of what the policy limits were for the incidents in question. In fact, this was plaintiffs first question at mediation. Notwithstanding this limited knowledge, plaintiff chose to go ahead with the mediation and entered into an agreement at the end thereof. Despite his admitted suspicions about the policy limits, plaintiff made the decision to enter into the agreement.

The doctrine of mutual mistake was not created to relieve litigants of agreements entered into improvidently. The all-out efforts plaintiff later engaged in to go behind the policy and ascertain, without question, what policies applied and what policy limits were, could have been performed before the mediation. The situation in this appeal would have been avoided.

Based on the foregoing, we reverse the order and remand for entry of an order enforcing the settlement agreement.

Reversed and remanded.


author: PALMER, C.J.

text:
    GEICO GENERAL INSURANCE COMPANY, Petitioner, v. FLORIDA EMERGENCY PHYSICIANS, etc., Respondent.
    No. 5D07-626.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 2007.
    Rehearing Denied Jan. 31, 2008.

      Jennings L. Hurt, III and Karissa L. Owens of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Petitioner.
    Kevin B. Weiss of the Weiss Legal Group, P.A., Maitland, for Respondent.
   PALMER, C.J.

GEICO General Insurance Company has filed a petition seeking certiorari review of an appellate decision issued by the circuit court of Seminole County which reversed the county court’s decision to grant GEICO summary judgment in a PIP case. Determining that the circuit court’s decision constitutes a departure from the essential requirements of the law, we grant the petition and quash the circuit court’s order.

Florida Emergency Physicians (FEP) provided emergency medical treatment to Brandon Taylor for injuries which he sustained in an automobile accident. Taylor was covered under an automobile insurance policy issued by GEICO. The policy included $10,000 in PIP benefits, subject to a $2,000 deductible. Taylor assigned his right to secure payment pursuant to his policy to FEP.

. After treating Taylor, FEP billed GEI-CO $279 for its emergency medical services. GEICO responded by issuing to FEP an explanation of benefits which stated that the charges were applied to Taylor’s $2,000 deductible. Upon receipt of the explanation, FEP billed Taylor’s health insurance carrier, CIGNA, which paid the bill in full.

After receiving payment from CIGNA, FEP sent a pre-suit demand to GEICO requesting policy information, including a “PIP payout sheet.” Within 30 days of its receipt of FEP’s demand package, GEICO responded by producing a number of documents including a PIP payout log. The log stated that “no payment activity exists for this print request” because no bills had been paid on Taylor’s behalf due to application of his $2,000 deductible.

FEP then sent another letter to GEICO explaining that the information received in the response package was insufficient to satisfy FEP’s demand package requests. In particular, FEP’s letter stated:

Please note that your response does not include several items previously referenced in our 15-Day Letter dated 5/10/04. The information previously sent was blank. Specifically, pursuant to Florida Statute 627.4137, 627.7401, 627.736(6)(d) and/or the policy that covers this loss:
1. Copy of the complete PIP pay out log
Please forward this information to our office promptly to avoid litigation.

Thereafter, FEP, as assignee of Taylor’s rights under his policy, filed a two-count complaint against GEICO alleging in count I a breach of contract claim (a claim which was subsequently dismissed and is not an issue in this case), and in count II a declaratory judgment claim. FEP alleged in the declaratory judgment claim that GEICO was provided a written request for a copy of the PIP/Med pay payment log as well as a copy of the policy and declarations page showing coverages in effect; however, GEICO failed to respond to said written request.

GEICO filed a motion for summary judgment asserting that GEICO had fully complied with FEP’s pre-suit requests for policy and payment information. The county court held a hearing on GEICO’s motion and thereafter entered an order granting GEICO’s motion for summary judgment finding: “Defendant provided all the documents Plaintiff requested.”

FEP filed a motion for rehearing arguing, in pertinent part, that “the Defendant never produced any document that would allow the Plaintiff to determine what claims were made and when, if any claims have been paid or denied, whether the deductible has been met, and if not how much remains.” The motion cited to the Seminole County circuit court’s appellate decision in New Hampshire Indemnity Co. v. Rural Metro Ambulance a/a/o William Zaniboni, 04-72-AP (Fla. 18th Jud.Cir.Ct., 2005) to support FEP’s argument. The trial court denied FEP’s motion for rehearing.

FEP then appealed the county court’s decision to the circuit court, sitting in its appellate capacity, raising the following issues for review:

A. The trial court’s order denying FEP’s motion for rehearing should be reversed, as the court erred by granting summary judgment and not considering new, binding case law from the appellate court (i.e., the decision in Zaniboni).
B. The summary judgment in favor of GEICO should be reversed because FEP was forced to bring suit to determine its status as a claimant due to GEICO’s steadfast refusal to provide insurance documentation without first being sued (an argument premised on the circuit court’s holding in Zaniboni).
C. The summary judgment in favor of GEICO should be reversed because the trial court was required to apply the law (i.e., Zaniboni) that existed at the time of the summary judgment ruling.

Upon review, the circuit court agreed with FEP’s argument regarding the application of the Zaniboni decision and, therefore, reversed the county court’s order.

GEICO filed the instant petition for writ of certiorari arguing that the circuit court’s opinion must be quashed because it constitutes a departure from the essential requirements of the law. We agree.

The standard of review in the district court, when reviewing a petition seeking certiorari review of a circuit court appellate decision, is limited to a determination of: (1) whether the circuit court afforded the parties procedural due process (not an issue in this case); and (2) whether the circuit court applied the correct law (also expressed as whether the essential requirements of the law have been observed). See Haines City Community Dev. v. Heggs, 658 So.2d 523 (Fla.1995). While a departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than simple legal error, the district court’s certiorari jurisdiction is significant: “In essence, the supreme court has cautioned the district courts to be prudent and deliberate when deciding to exercise this extraordinary power, but not so wary as to deprive litigants and the public of essential justice.” Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). See also Orange County v. Lewis, 859 So.2d 526, 528 n. 2 (Fla. 5th DCA 2003).

The circuit court’s decision is fundamentally flawed because the ruling is premised on the conclusion that GEICO was required, but failed, to provide a “PIP log” to FEP so that FEP could “determine its status as a claimant with respect to whether the deductible had been met.” The circuit court reasoned that the decision in Zaniboni was established precedent in the circuit and “entitled FEP to the PIP log” for this purpose. To the extent that the circuit court concluded that Zaniboni required the PIP insurer to produce a “PIP Log”, the circuit court has misread the Zaniboni decision.

In Zaniboni, the circuit court expressly concluded:

No provision of section 627.736, Florida Statutes, dictates that an insurer must provide a PIP log to an insured, or his/her assignee. In fact, there is no provision under section 627.736, Florida Statutes, which requires that an insurer must create a PIP log at all. Thus, the trial court erred when it determined that [the provider] was entitled to a copy of the PIP log.

Buttressing the holding in Zaniboni is the subsequent holding in Southern Group Indemnity, Inc. v. Humanitary Health Care, Inc., 32 Fla. L. Weekly D1396, 2007 WL 1542019 (Fla. 3d DCA May 30, 2007). There, in response to a similar argument, the Third District held:

Section 627.736(6) does not provide for nor address the insured’s right to access documents prepared internally by the insurer. As the insurer’s PIP payout log is a document generated by the insurer and is not a document the insurer obtained pursuant to section 627.736(6), we conclude that the circuit court, acting in its appellate capacity, applied the incorrect law by finding that (1) section 627.736(6)(d), Florida Statutes (2003), requires an insurer to provide its PIP payout log to an insured or the insured’s assignee, presuit....

Id. at D1397. Thus, the circuit court’s conclusion that GEICO was required tó provide a PIP log to FEP is not supported by Florida law.

The circuit court’s order constitutes a departure from the essential requirements of the law and, therefore, we grant the petition for certiorari, quash the circuit court order, and reinstate the county court order.

Petition GRANTED; circuit court opinion QUASHED.

SAWAYA and EVANDER, JJ., concur.

      . “PIP” is an acronym commonly used to refer to personal injury protection automobile insurance coverage. See § 627.736, Fla. Stat., (2005).

      . The terms "PIP payout sheet,” "PIP payout log” and “PIP log” appear to be used interchangeably by the parties in the instant case.

      . The record indicates further that GEICO did provide a payout log to FEP but no payment was listed since the charge had been applied to Taylor’s deductible and, accordingly, there had been no payout.


author: SALTER, J. COPE, J.

text:
    Armand RAPPAPORT, etc., Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee.
    No. 3D06-778.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.
    Rehearing Denied Feb. 7, 2008.
    Chasin & Stinson; Philip D. Parrish, Miami, for appellant.
    Houck Anderson and Valerie A. Donde-ro, Miami, for appellee.
    Before COPE and SALTER, JJ., and FLETCHER, Senior Judge.
   SALTER, J.

Armand Rappaport, personal representative of the estate of a bus passenger who died following an injury aboard the bus, appeals a final summary judgment in favor of Progressive Express Insurance Company (“Progressive”). The trial court found that there was no genuine issue of material fact that KSA Tours, owner of the bus, had “loaned its bus to J.J. USA Bus Tours, Inc. without notice to the insurer, both as to the entity and driver,” with the result that there was no coverage applicable to the bus or accident.

We review the summary judgment de novo, viewing all of the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000).

We affirm, finding that KSA Tours did not disclose to Progressive as part of its application that KSA Tours loaned its vehicles, or would loan its vehicles, to uninsured corporations for the transportation of tourists. Because the appellant did not file opposing “summary judgment evidence” as provided by Florida Rule of Civil Procedure 1.510(c) on the insurer’s sworn contentions that the undisclosed types of business were material and unacceptable underwriting risks, the trial court correctly granted the motion for final summary judgment. See § 627.409, Fla. Stat. (2003); Motors Ins. Corp. v. Marino, 623 So.2d 814 (Fla. 3d DCA 1993).

Affirmed.

FLETCHER, Senior Judge, concurs.

COPE, J.

(dissenting).

The reasons stated by the trial court for the summary judgment are legally insufficient. We should remand the matter for trial.

Since this is a summary judgment proceeding, the testimony and factual inferences must be taken in the light most favorable to the nonmoving party. Read in that light, KSA Tours, Inc. is a local company which transports passengers between airports and hotels, and the Port of Miami. KSA also operates some tours.

On March 19, 2003, the owner, Mr. Ar-regoces, met with an insurance agent in the office of InsureBrite, an authorized agent for appellee Progressive Express Insurance Company. The purpose of the meeting was to obtain motor vehicle insurance for the vans owned by KSA. Mr. Arregoces explained KSA’s business to In-sureBrite. InsureBrite submitted the application via computer to Progressive and coverage was immediately bound.

As of March 19, KSA conducted its business by using vans and did not own a bus. Several weeks later, on April 3, KSA purchased a bus. Mr. Arregoces testified that he called InsureBrite to advise them of the purchase. InsureBrite requested the registration and Vehicle Identification Number. Mr. Arregoces also provided Insure-Brite with the name and driver’s license of the person who would be driving the bus.

Meanwhile, apparently alerted by KSA’s name, Progressive made further inquiries about the nature of KSA’s business. Although InsureBrite believed that Progressive wrote insurance for this type of business, in reality Progressive did not issue insurance for the carrying of passengers for hire. On April 4 — the day after the bus purchase — Progressive sent out a notice of cancellation, to take effect May 19, 2003.

On May 21, 2003, the insured bus was transporting a group of condominium residents to an entertainment event, when it was involved in an accident. An elderly passenger was injured. The passenger eventually died and her estate brought a wrongful death action. This declaratory judgment proceeding followed, to determine whether Progressive was providing motor vehicle insurance to KSA on the date of the accident.

Progressive first moved for summary judgment on the theory that the policy had been cancelled on May 19, two days before the accident. Unfortunately, when Progressive sent out the notice of cancellation it utilized the statutory procedure for cancellation of insurance on ordinary passenger vehicles. See § 627.728, Fla. Stat. (2003). Progressive neglected to use the more specific cancellation provision for commercial vehicles. See id. § 320.02(5)(e). Furthermore, there was also testimony that after Progressive sent out the cancellation notice, InsureBrite advised KSA that there had been a misunderstanding and that the insurance remained in force. The trial court denied Progressive’s summary judgment motion which contended that the policy had been canceled.

Progressive next moved for summary judgment on the theory that KSA had made a material misstatement in its application for insurance. See id. § 627.409. Progressive argued, as stated in the majority opinion, that KSA had loaned the bus to another entity, J.J. USA Bus Tours, Inc., without notice to Progressive both as to the entity and the driver.

However, as already stated, this is a summary judgment proceeding in which the record must be read in the light most favorable to the nonmoving party, not Progressive. Mr. Arregoces testified that he did notify InsureBrite, which was Progressive’s agent, about the acquisition of the bus and the identity of the individual who would be driving it.

More to the point, Progressive is seeking to avoid coverage in this case on the basis of section 627.409, Florida Statutes. Subsection (1) applies to misrepresentations in an application for an insurance policy. It is impossible that there was any misrepresentation or omission in KSA’s application because at the time of the application on March 19, KSA did not own any bus. It only owned vans. It did not buy the bus until three weeks after the effective date of the insurance policy.

Thus, Progressive has the time sequence completely backwards. The sequence was: (1) KSA submits application on March 19; (2) coverage is bound on March 19; (3) three weeks later, KSA buys bus; and (4) KSA notifies InsureBrite (and thereby, Progressive) about the bus purchase and bus driver. Obviously there could be no misrepresentation or omission about the bus at the time of the application on March 19, because KSA did not even own the bus at the time of the application. Therefore section 627.409, Florida Statutes (2003), has no application to this case.

The correct question to ask is whether there was any provision in Progressive’s insurance policy which prohibited KSA from buying and operating a bus. At oral argument we were told that there is no such limitation or exclusion.

Progressive seeks to make much of the fact that the actual tour operator on the day of the accident was J.J. USA Bus Tours, Inc. That is a red herring. J.J. was an entity formed by Mr. Arregoces for the purpose of carrying on what might best be described as a joint venture between himself and the bus driver, Mr. Maia. The terms of the venture were that Mr. Arregoces would provide the bus and Mr. Maia would drive it. The profits, if any, were to be divided. In essence, KSA loaned the bus to the venture when tours were booked. Since there was nothing in the insurance policy which prohibited this, it follows that the insurance on the bus remained in force. Absent an applicable policy exclusion (and none exists here), there is no rule that loaning an insured motor vehicle to someone else causes termination of the insurance coverage because the borrower does not have its own insurance policy.

Reading the record in the required light, there was no material misrepresentation in the insurance application in this case. That being so, the summary judgment should be reversed and the cause remanded for further proceedings.

       The dissent focuses on the time sequence of application, purchase of the bus involved in the accident, and KSA Tours’ alleged verbal notification regarding the new bus and additional driver. Respectfully, that is not the issue. Insurers underwrite and issue policies based on accurate disclosures by prospective insureds on their applications, not on lines and types of business that materially change before the policy is even issued. On this record, Mr. Arregoces never intimated to Progressive or InsureBrite that KSA Tours might also rent vehicles to separate (and uninsured) companies. In addition, he filed no affidavit, deposition excerpt, or other sufficient evidence to contradict Progressive's affidavit and evidence on that dispositive point. Had J.J. USA Bus Tours been a co-applicant, or had Mr. Arregoces accurately disclosed KSA Tours’ business with JJ. USA Bus Tours, this would be a different case.

      . Appellant Armand Rappaport is the personal representative and plaintiff in the wrongful death action.


author: ROTHENBERG, Judge. GREEN, J.

text:
    CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, Appellant, v. Luis PAJARES, Appellee.
    No. 3D06-1744.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.
    Rehearing Denied Feb. 7, 2008.

      Holland & Knight and Rodolfo Sorondo, Jr. and Rebecca M. Plasencia, Miami, for appellant.
    Ginsberg & Schwartz and Arnold R. Ginsberg; Rivkind, Pedraza & Margulies and Brett Rivkind, Miami, for appellee.

      Before GREEN, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, Judge.

Crewman Luis Pajares (“Pajares”) suffered a stroke while working for Carnival Cruise Lines (“Carnival”). Pajares’ claim for failure to provide prompt, adequate medical care was tried and decided adversely to Carnival. Because we conclude that Pajares’ counsel’s improper comments during closing argument and the comments made by Pajares’ witness, Gary Anderson, deprived Carnival of a fair trial, we reverse the trial court’s order denying Carnival’s motion for new trial.

The evidence presented at trial reveals that Pajares worked for Carnival for five years; that each year he was required to undergo a physical examination and be cleared fit for employment by Carnival’s doctors; and that after being declared fit for employment, Pajares suffered a stroke. Pajares claimed that Carnival was negligent for failing to diagnose and treat his hypertension, and that as a result, he suffered a stroke. Carnival’s defense was that its doctor counseled Pajares on modifications to his lifestyle, recommending that he maintain a healthy diet, avoid drinking alcohol, and quit smoking. Carnival argued that Pajares’ stroke was caused by his twenty-eight years of smoking, and that modification of his lifestyle, rather than medication, was the appropriate treatment, and since Carnival’s doctor advised Pajares that he should make these modifications to his lifestyle, Carnival was not negligent. Carnival additionally argued that, at a minimum, because Pajares did not quit smoking as recommended by Carnival’s doctor, his conduct was a contributing cause of the stroke, and any damages awarded to Pajares should be reduced accordingly.

In addition to noneconomic damages, Pajares sought damages for the cost of past and future medical care and lost wages. Pajares hired a vocational expert to create a life-care plan, and a forensic economist, Gary Anderson, to calculate Pa-jares’ future economic damages based upon the vocational expert’s findings, and to reduce the future damages to then-present value.

By stipulation, discovery was closed on August 5, 2005, however, the depositions of Pajares’ vocational expert and forensic economist were not taken until two weeks and three weeks, respectively, after discovery had closed. Approximately three months after these depositions were taken, and only one week prior to the trial scheduled for November 28, 2005, Carnival moved to amend its expert witness list to include an economist, who Carnival stated was prepared to offer an alternative life-care plan and to testify as to Pajares’ future economic damages based on this alternative life-care plan. The judge assigned to try the case denied Carnival’s untimely request, but stated that Carnival could revisit the issue if the case was continued. When the case was subsequently continued to March 2006, Carnival again sought to amend its expert witness list to add its economist. Although Carnival’s motions to amend were filed in January 2006, well in advance of the March 2006 trial setting, these motions were denied.

PAJARES’ COUNSEL’S IMPROPER COMMENTS DURING CLOSING ARGUMENTS

1. Dr. Diskin

Dr. Arthur Diskin, Carnival’s medical director, was listed in discovery and called as a witness at trial. Prior to trial, Pajares moved in limine to preclude Dr. Diskin from testifying as to a ship doctor’s standard of care. Because Dr. Diskin was not listed as an expert witness, the trial court granted Pajares’ motion in limine. Thus, Dr. Diskin was precluded from testifying as to whether Pajares had received proper care. After obtaining this ruling, Pajares’ counsel commented on Dr. Dis-kin’s failure to offer the very testimony he moved in limine to preclude, and which the trial court prohibited Dr. Diskin from offering:

And you know what was appalling, to hear Dr. Diskin say — I almost, I was almost in shock when he said they’re too busy to take a blood pressure recording when a crew member comes into the office on the ship. That is appalling, and especially with somebody who has a history like that. I mean, Dr. Diskin, he didn’t come in here to say, here’s the records, ship’s doctors did everything correctly.

(emphasis added).

These comments were improper as counsel implied that Dr. Diskin’s failure to offer testimony regarding the standard of care of Carnival’s doctors was because Carnival had no favorable testimony to provide. See Wall v. Costco Wholesale Corp., 857 So.2d 975, 976 (Fla. 3d DCA 2003) (holding that defense counsel’s comments regarding the plaintiffs failure to call her daughter to testify, where defense counsel knew that the daughter was estranged from her parents and had disappeared, deprived the plaintiffs of a fair trial); Bauta v. State, 698 So.2d 860, 864 (Fla. 3d DCA 1997) (holding that defense counsel’s argument, that the State failed to call the lead detective in the case because he did not have favorable evidence to present for the State, was disingenuous and misleading, as the defense had successfully prevented the jury from hearing the favorable evidence he was prepared to provide); Hernandez v. Home Depot U.S.A., Inc., 695 So.2d 484, 485 (Fla. 3d DCA 1997) (granting a new trial where defense counsel, after succeeding in excluding evidence, raised during closing argument the plaintiffs failure to present the evidence defense counsel succeeded in excluding; characterizing defense counsel’s action as “the ultimate gotchaism” by “whipsaw[ing] the plaintiff for not producing that very testimony”).

These comments were also improper because counsel for Pajares expressed his personal opinions regarding the evidence presented. See Cohen v. Pollack, 674 So.2d 805, 807 (Fla. 3d DCA 1996); Kaas v. Atlas Chem. Co., 623 So.2d 525, 526 (Fla. 3d DCA 1993).

2. Comments suggesting that the tgpe of food Carnival served its crew members was the cause or a contributing factor to Pajares’ injury

As stated previously, a major feature of the trial, and Carnival’s defense, was that Pajares’ failure to adequately modify his lifestyle, for example, his failure to stop smoking, caused his stroke. Although no evidence was presented as to Pajares’ diet, including the foods he was offered or ate aboard ship, his counsel suggested to the jury in closing argument that Pajares’ diet was within Carnival’s control, and asked the jury to speculate as to the food Carnival served its crew.

So, you’re on a cruise ship, don’t forget that too. Crew members are on cruise ships 9, 10 months a year, 7 days a week, 14 hours working. The only other time they have really is probably to go to sleep. Get whatever sleep they can get. You know, so any kind of food or any kind of diet they eat or anything like that is in the control of the cruise ship. You know what, we haven’t had testimony there was fatty foods or high salts that caused it, but if we did, I imagine what they’re serving the crew members on board the cruise ships. Think about that. Their diets—

(emphasis added).

The prejudice flowing from this improper argument was heightened because the trial court overruled Carnival’s objection, which led to an additional comment by Pajares’ counsel regarding Pajares’ diet being within Carnival’s control. The prejudice is obvious where several jurors identified diet as a cause of strokes and two of those jurors were selected and decided this case.

3. Comments regarding the economic disparitg between Pajares and Carnival

This Court and the courts of this state have long recognized the danger that jurors might be influenced by evidence of a party’s wealth or poverty and sympathize with the financially stricken party. See State Farm Mut. Auto. Ins. Co. v. Revuelta, 901 So.2d 377, 379 (Fla. 3d DCA 2005); Batlemento v. Dove Fountain, Inc., 593 So.2d 234, 242 (Fla. 5th DCA 1991). During closing argument, Pajares’ counsel made the following argument:

Now, one of the most unbelievable things that I have ever heard was don’t think of who’s involved. As if Mr. Pa-jares — Mr. Pajares, that’s who’s involved. This is real life. Of course you have to consider who’s involved. And this is a shipping company, is also involved. The company that operates how many cruise ships; how many crew members?

This argument was clearly improper as Carnival’s resources were not relevant in determining the issues before the jury, and could only have served to prejudice the members of the jury, who learned through Pajares’ presentation of the evidence, that Pajares was relatively poor and that his family had to borrow money and sell a house to provide him with some of the care he received. While we recognize that this comment was not, in itself, so prejudicial as to require a new trial, we conclude that it must be considered in weighing the cumulative effect of counsel’s improper arguments.

4. Disparagement of defense counsel and Carnival’s defense

The most grievous arguments made by Pajares’ counsel are those suggesting that Carnival acted improperly by defending Pajares’ claims; and denigrating its defenses. Several times during closing arguments, Pajares’ counsel suggested that Carnival was attempting to divert the jurors’ attention from the real issue (Carnival’s negligence) by raising the issue that Pajares was a smoker. After making this argument several times, counsel declared: “[0]h, now that we know that he smokes some cigarettes, therefore, we want to blame his stroke on that ..., but now we want this jury to focus on just the fact that he’s a smoker, he’s a criminal because he smokes.” After the trial court sustained Carnival’s objection to this argument, Pa-jares’ counsel continued to denigrate Carnival’s defense, stating, “They want you to hold it against him just because he smokes.”

Carnival’s defense was, in part, that the cause of the stroke was Pajares’ lifestyle. It was undisputed that Pajares smoked cigarettes for twenty-eight years prior to his stroke and that even after Carnival’s doctor advised Pajares to stop smoking, he continued to do so. It was, therefore, improper to argue to the jury that Carnival was doing something wrong in presenting evidence that Pajares smoked and in asking the jury to consider its effect upon Pajares’ comparative negligence.

Not only did Pajares’ counsel suggest that Carnival acted improperly by presenting a “smoking defense,” counsel also argued that Carnival should be punished for ' defending Pajares’ claim at all,. stating: “We have a limited amount of time here. We have the right to five happily away from him [sic] by Carnival Cruise Lines. They won’t accept responsibility. They won’t accept the harm that they have caused him. They are fighting on both. It is time to hold them responsible.”

(emphasis added).

Arguments similar to those made in the instant case have previously been condemned by this Court. In Carnival Cruise Lines, Inc. v. Rosania, 546 So.2d 736, 737-38 (Fla. 3d DCA 1989), this Court reversed a judgment in favor of the plaintiffs and ordered a new trial due to comments made by the plaintiffs’ counsel disparaging the manner in which Carnival defended the action. In Rosania, the plaintiffs’ counsel made the following improper comments:

This is a perfect example of what Carnival Cruise Lines had been doing for the last three years.
They want to hide the truth. There are certain companies and organizations that look for a way to taint.
I think the evidence shows that they have taken the position that they’re going to put roadblock after roadblock after roadblock and say she wasn’t fit to make this trip.
In putting up roadblocks such as we’ve seen here through this entire trial, keep in mind when you make a verdict, when you render a verdict, your verdict has to be unanimous. And think about how Carnival Cruise Lines defended this particular case.

Id. at 738 n.l.

In Revuelta, this Court reversed a judgment in Revuelta’s favor, where Revuelta’s counsel insinuated that State Farm had acted in bad faith in defending the action, rather than paying the benefits. Revuelta,. 901 So.2d at 379-80. The arguments made by Pajares’ counsel, denigrating Carnival’s defense of Pajares’ claim and suggesting that Carnival should be punished for contesting liability, are the type of arguments previously condemned by this Court, and are equally condemned in the instant case.

5. Comments regarding the lack of evidence where Pajares’ counsel succeeded in excluding the evidence he argued was lacking

Prior to trial, Carnival attempted to amend its expert witness list to include an economist, who Carnival asserted was prepared to offer an alternative life-care plan and expert testimony concerning Pa-jares’ economic damages. Pajares, who objected to the amendment, prevailed and, therefore, Carnival was unable to offer the expert testimony. During examination of Gary Anderson, Pajares’ forensic economist, Pajares’ counsel improperly elicited testimony from Anderson that no alternative life-care plan was submitted by Carnival. Pajares’ counsel asked Anderson whether he would have reviewed an alternative life-care plan if one had been submitted to him, knowing full well that he had not received one, and that the jury would not receive one, based upon the trial court’s denial of Carnival’s request to present such evidence. In response, Anderson testified: “I anticipated being asked by your office to review a life-care plan and an economic report prepared by an economist retained by the defendant, but I was never asked to do that because evidently none was ever provided.”

The improper question and answer were compounded by Pajares’ counsel’s comments in closing argument that Anderson’s testimony on damages was unrefuted, and that Carnival could have produced its own expert and an alternative life-care plan, but failed to do so.

6. Pajares’ counsel’s improper “value of life” arguments

In addressing the issue of noneco-nomic damages, Pajares’ counsel offered his suggestions as to how the jury should determine what monetary compensation it should award Pajares for his past and future suffering. Counsel’s argument improperly asked the jury to place a monetary value on Pajares’ life by comparing a $20 million Van Gogh painting, “created by one of the greatest artists in history,” to Pajares’ life, which “was created by the greatest creator there is.” This argument was highly improper. See Dufour v. State, 905 So.2d 42, 64 (Fla.2005); Pub. Health Trust of Dade County v. Geter, 613 So.2d 126,127 (Fla. 3d DCA 1993).

Carnival acknowledges that it failed to timely object to this argument, but urges this Court to find that the argument was so egregious as to constitute fundamental error. Although the argument was clearly improper, we find no fundamental error, and, therefore, we decline to consider this improper argument in deciding whether the cumulative effect of the objected-to improper comments deprived Carnival of its right to a fair trial.

THE SERIOUSNESS AND PERVASIVENESS OF THE VARIOUS IMPROPER COMMENTS REQUIRE REVERSAL

While we recognize that a single improper remark or argument might not be so prejudicial as to require reversal, we conclude that the cumulative prejudicial effect of the improper comments noted herein requires a new trial to protect the overall fairness of the trial court proceedings, and to ensure that Carnival receives a fair trial. See Wemeck v. Worrall, 918 So.2d 383, 388 (Fla. 5th DCA 2006) (finding that, although trial courts have considerable discretion on motions for new trial, the trial court abused its discretion by denying the motion where justice requires a new trial based upon the cumulative effect of the improper arguments); Bocher v. Glass, 874 So.2d 701, 704 (Fla. 1st DCA 2004) (concluding that there comes a point where the totality of the errors is so pervasive as to raise doubt as to the overall fairness of the court proceedings); Cohen v. Pollack, 674 So.2d 805, 806 (Fla. 3d DCA 1996) (finding reversible error based upon the cumulative effect of counsel’s improper argument that the jury should measure damages by considering pain that the plaintiff endured, and counsel’s statements indicating his opinions and beliefs regarding the case).

Reversed and remanded for a new trial.

SALTER, J., concurs.

GREEN, J.

(dissenting).

Respectfully, I dissent.

I cannot conclude that the subject arguments made by plaintiffs counsel, when viewed in the totality of the circumstances, rise to that level of cumulative prejudice needed to vitiate the fairness of this eleven day trial. Engle v. Liggett Group, Inc., 945 So.2d 1246, 1271 (Fla.2006). The court sustained all appropriate objections, and the evidence fully supports the jury’s verdict. Dozier v. Hodges, 849 So.2d 1094 (Fla. 3d DCA 2003). The comments here were not so highly prejudicial and inflammatory as to deny Carnival Cruise Line a fair trial. See Engle; Dozier, see also Benjamin v. Diel, 831 So.2d 1227 (Fla. 4th DCA 2002).

Trial courts have traditionally been granted great deference in their decisions to grant or deny a new trial based upon improper argument of trial counsel. Tanner v. Beck, 907 So.2d 1190, 1197 (Fla. 3d DCA 2005) (Green, J., dissenting). “The discretionary power to grant or deny a motion for new trial is given to the trial judge because of his/her direct and superi- or vantage point.” Id. (citing Baptist Mem’l Hosp. v. Bell, 384 So.2d 145, 146 (Fla.1980)). ,The trial court was in the best position to- gauge or assess the effect, if any, of these comments in the proceeding below.- The order on appeal, therefore, should be affirmed.

      . Based on our finding that the trial counsel’s improper comments and arguments require a new trial, we decline to address Carnival’s second argument that the trial court reversibly erred in denying its motion to amend its witness list, as there no longer appears to be any impediment to Carnival's requested amendment.


author: COPE, J.

text:
    Luis Alfredo QUINTANAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1687.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.
    Rehearing Denied Jan. 30, 2008.
    Luis Alfredo Quintanal, in proper person.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   COPE, J.

This is an appeal of an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Defendant-Appellant Luis Alfredo Quin-tanal entered into a plea agreement whereby he agreed to be sentenced, to a ten-year mandatory minimum term as a habitual violent offender (“HVO”) in Miami-Dade County Circuit Court case number 04-34685 (“the 2004 case”). On June 16, 2006, the trial court approved the plea agreement and imposed the agreed sentence.

In point four of the rule 3.850 motion, the defendant alleges that his trial counsel affirmatively misadvised him that his sentence in the 2004 case would be concurrent with the sentence imposed for what he has described variously as a probation or parole violation. In its response in the trial court, the State did not file the judgment or sentencing documents in any of the defendant’s cases. The trial court denied the defendant’s claim, stating that during the June 16, 2006 plea colloquy, the trial court did not make any pronouncement about whether the sentence in the 2004 case would be concurrent or consecutive to any other sentence. This appeal followed.

In its response in the trial court and in this Court, the State maintained that all of the defendant’s sentences are concurrent. However, the postconviction record does not contain the judgment and sentencing documents in any of the defendant’s cases, and therefore the limited record now before us does not conclusively refute the defendant’s claim that his sentences were consecutive. The plea colloquy does not address the defendant’s pre-2004 cases, and therefore does not conclusively refute the defendant’s claim that he was given affirmative misadvice by his trial counsel that his sentences would be served concurrently. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Furthermore, the State’s position in this case is mathematically impossible. The State has invited the court to consult the Department of Corrections website and the Court has done so. The defendant is incarcerated on Miami-Dade County Circuit Court case numbers 94-34710 and 94-34711, as well as the 2004 case mentioned above. The trial court imposed a ten-year mandatory minimum sentence on the defendant on June 16, 2006. Since that is a day-for-day sentence, the defendant’s release date on that case would be no later than June 16, 2016 (assuming no credit for time previously served). However, as of December 2, 2007, the Department of Corrections website shows an estimated release date of October 7, 2017 — more than ten years after the sentence was imposed. The website therefore tends to support, rather than refute, the defendant’s claim that his sentences in the 2004 case and case number 94-34711 are consecutive.

We reverse the order now before us in part and remand for further proceedings on point four only. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the defendant is not entitled to any relief. We concur with the trial court in the denial of relief on the defendant’s other claims.

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


author: SCHWARTZ, Senior Judge.

text:
    Amalia LARROQUE, Appellant, v. MERCURY INSURANCE COMPANY OF FLORIDA and Discount Insurance Center Two, Inc., Appellees.
    No. 3D06-2298.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.

      Stephens Lynn Klein La Cava Hoffman & Puya; Marlene S. Reiss, for appellant.
    Cooney, Mattson, Lance, Blackburn, Richards & O’Connor and Warren B. Kwavnick, Fort Lauderdale, for appellees.
    Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The plaintiff-insured claimed coverage for the theft of her automobile under a policy issued by Mercury Insurance Company. She appeals from a defense summary judgment entered on the ground that the policy was appropriately cancelled before the loss because of an alleged failure to remit the entire $719.33 installment of the premium payment, which the carrier alleged was required. We reverse because of the existence of substantial material issues, including (a) whether a notice of cancellation was properly mailed, and (b) whether the $360.00 payment tendered by the plaintiff was insufficient, as the carrier contends, or whether the entire amount due was paid under the particular payment plan she selected.

Reversed and remanded.

      . To a significant extent, the defendant's supporting materials were improperly authenticated, see Fla. R. Civ. P. 1.510(e); First Union Nat’l Bank of Fla. v. Ruiz, 785 So.2d 589 (Fla. 5th DCA 2001); Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707 (Fla. 4th DCA 1997), and did not otherwise demonstrate that it had complied with section 627.728(5), Florida Statutes (2007) ("United States postal proof of mailing or certified or registered mailing of notice of cancellation, ... or of reasons for cancellation, ... to the named insured at the address shown in the policy shall be sufficient proof of notice.”), which would have rendered nonreceipt of the notice irrelevant. See Aries Ins. Co. v. Cayre, 785 So.2d 656, 658 (Fla. 3d DCA 2001). For this reason, the insured's specific denial that she had received the cancellation notice created a triable issue as to whether mailing actually took place. See Bank of Am. N.A. v. Evans, 948 So.2d 998 (Fla. 3d DCA 2007); Aries Ins. Co., 785 So.2d at 659-60.


author: LAWSON, J.

text:
    Gary A. SIPLIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4071.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.
    Rehearing Denied Jan. 31, 2008.

      Bruce S. Rogow and Cynthia E. Gunther, of Bruce S. Rogow, P.A., Fort Laud-erdale, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   LAWSON, J.

Gary Anthony Siplin appeals his convictions for grand theft, in violation of section 812.014(2)(c)(2), Florida Statutes (a third degree felony), and for using the services of a state employee during working hours in furtherance of a political campaign, in violation of section 106.15(3), Florida Statutes (a first degree misdemeanor). For the reasons explained below, we reverse both convictions and remand with directions that Mr. Siplin be acquitted on the felony charge. On remand, the State may retry Mr. Siplin on the misdemeanor charge, consistent with this opinion.

Grand Theft Conviction

In count 1 of its information, the State charged Mr. Siplin with grand theft for knowingly depriving the state of Florida of the services of its employee, Naomi Cooper, between July 31 and November 1, 2004. The theory of the case was that the state paid Ms. Cooper about $3,000 per month for the months of August, September and October 2004, to work full-time as Mr. Siplin’s legislative aide, while she was in fact working full-time on Mr. Siplin’s campaign for re-election as a state senator. Ms. Cooper testified for the State that both she and Mr. Siplin planned for her to work full-time on his campaign, and also knew that she could not do so while being paid to work as his legislative aide.

According to Ms. Cooper, she had contracted with the state Democratic party to work though November 2, 2004, on Mr. Siplin’s campaign, for which she was to be fully compensated by the Democratic party. The Senate’s written policies allowed Senate employees to take a leave of absence to work on political campaigns, and expressly allowed leave with pay, for this purpose, so long as the employee was “on authorized annual leave [using accrued vacation time].” It was undisputed at trial that Mr. Siplin instructed Ms. Cooper to do whatever was necessary to arrange her required leave of absence from the state, so that she could legally run his campaign.

At that time, the Senate did not collect time sheets or any other record of time actually worked from its employees. Instead, each Senate office was required to keep track of time worked. If an employee took time off, the senator, or his or her designee, was required to report the time not worked to the legislature’s payroll office, including an explanation of whether the employee was to be paid from accrued annual leave (vacation time), compensatory time, or sick leave, or was simply taking leave without pay. This was normally done by computer entry, and Ms. Cooper was Mr. Siplin’s designee for dealing with payroll issues for his office.

According to Ms. Cooper’s trial testimony, she believed that she had fully complied with Senate policies by: (1) sending in a letter requesting paid annual leave from June 1, 2004 until July 31, 2004 (which accounted for most of her accrued vacation time); and (2) sending in a copy of her contract with the state Democratic party along with a form entitled “Permission for Outside Employment,” indicating that she would be working as a consultant on Mr. Siplin’s re-election campaign. The contract period ran from May 18 to November 2, and these dates are clearly noted on the face of the one-page contract. In response, Ms. Cooper received a letter from the Senate confirming that: (1) her paid leave was approved for the period from June 1 to July 31; and (2) that her outside employment had also been approved. Ms. Cooper testified that she understood this letter to mean that she had been approved for outside work for the entire time covered by the contract submitted with the form.

There are two problems with Ms. Cooper’s testimony. First, although the contract itself indicates that Ms. Cooper would be working on Mr. Siplin’s campaign until November 2, the form she submitted (and had Mr. Siplin sign) only requested approval for outside employment from June 1 to July 31. Second, Ms. Cooper continued to receive her full state salary for the entire period of time that she was working on the campaign, even though she only arranged for a paid leave through July 31. Ms. Cooper was, of course, aware of this, because the money was automatically deposited into her account each month, and the monthly pay summaries were mailed to her at her residence. Ms. Cooper testified that when she continued to receive a state salary check after July 31, she thought she was being paid for accrued compensatory time and/or sick leave. However, she never mentioned that she was still getting paid by the state to Mr. Siplin, or anyone else in his Senate office. Significantly, the State did not present testimony from any witness indicating that Mr. Siplin knew Ms. Cooper continued to receive her state salary while working on his re-election campaign.

Instead, the State argues that Mr. Sip-lin’s knowledge should be inferred from the “Permission For Outside Employment” form that he signed, since it only listed the dates of Ms. Cooper’s paid leave, and his presumed understanding of the Senate’s practice of automatically paying an employee unless a senator’s office reported the employee’s absence from work. The problem with this theory is that the State’s own witnesses testified without any contradiction that: (1) Ms. Cooper regularly acted as Mr. Siplin’s designee for purposes of reporting time away from work; and (2) Mr. Siplin instructed Ms. Cooper to arrange for her time off so that she could legally work for the campaign. Assuming that Mr. Siplin actually studied the outside employment form when it was presented for his signature (so that he recognized the discrepancy between the dates in the form and the dates of Ms. Cooper’s planned absence), it is just as reasonable to infer that Mr. Siplin believed the form only needed to encompass the time covered by Ms. Cooper’s paid leave as it would be to infer that he thereby knew that Ms. Cooper would be paid by the state from August 1 to October 31. Because Ms. Cooper herself normally would have reported her time away, it is also equally reasonable to infer from these facts that Mr. Siplin assumed that Ms. Cooper had arranged for her unpaid leave by computer entry, consistent with their normal office practice and consistent with his express instructions to her.

Although a jury is normally free to “draw or refuse to draw inferences from the evidence presented,” Ford v. State, 251 So.2d 562, 563 (Fla. 3d DCA 1971), a special standard applies when the state attempts to secure a conviction based solely on circumstantial evidence: “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” McArthur v. State, 351 So.2d 972, 976 (Fla.1977) (citations omitted). This standard is not met here because the State’s evidence does not suggest guilt to the exclusion of all other reasonable inferences. See also, Walker v. State, 957 So.2d 560, 577 (Fla.2007) (recognizing that in circumstantial evidence cases a judgment of acquittal is appropriate if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt).

Of course, a strong case could be made that Mr. Siplin should have carefully studied the form that he signed, noted the potential discrepancy, and followed through with the payroll office himself, to make sure that the matter delegated to Ms. Cooper was handled correctly — or should have had some procedure in place to audit an employee who he trusted to handle her own payroll submissions. However, a criminal conviction for theft cannot stand based upon negligence in handling office paperwork or procedures.

“Under Florida law, a theft requires proof of taking ... with the intent to steal.” Bartlett v. State, 765 So.2d 799, 800 (Fla. 1st DCA 2000). And, “where it clearly appears that the taking was perfectly consistent with honest conduct, although the party charged with the crime may have been mistaken, he cannot be convicted of larceny.” Id. (quoting Cooper v. State, 82 Fla. 365, 90 So. 375 (1921)). Because the State’s evidence was insufficient to prove beyond a reasonable doubt that Mr. Siplin even knew that Ms. Cooper was receiving a state paycheck after July 31, while working on his campaign, the State clearly cannot show that he intended to steal from the state.

Mr. Siplin properly challenged the sufficiency of the State’s evidence on count 1 both by pretrial motion and through a timely motion for judgment of acquittal. The issue was therefore preserved for appellate review, and reversal of the conviction is required. Bartlett, 765 So.2d at 800; Walker, 957 So.2d at 577. Because it would violate double jeopardy principles to allow the State to try Mr. Siplin a second time on this charge when its evidence was insufficient to sustain a conviction at the first trial, see Tibbs v. State, 397 So.2d 1120 (Fla.1981), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), we remand with directions that the trial court enter a judgment of acquittal as to this charge. Mr. Siplin cannot be re-tried on count 1. Id.

Misdemeanor Conviction

In count 2 of its information, the State charged Mr. Siplin with violating section 106.15(3), Florida Statutes (2004), by using the services of two state employees, Sarah Caraballo and Jose Bosque, during work hours, in furtherance of his candidacy for public office. Section 106.15(3) reads, “A candidate may not, in the furtherance of his or her candidacy for nomination or election to public office in any election, use the services of any state, county, municipal, or district officer or employee during working hours.” A violation of this statute constitutes a first degree misdemeanor.

Before trial, Mr. Siplin filed a motion to dismiss this count, arguing that section 106.15(3) was unconstitutionally vague, overbroad and violative of substantive due process. This motion was denied, and Mr. Siplin makes these same arguments on appeal. At the outset, we note that in contrast to count 1, the State’s evidence on this count was sufficient to sustain a verdict of guilt. Both Mr. Bosque and Ms. Caraballo were employed by the state of Florida, working in Mr. Siplin’s Senate office during the 2004 campaign season. Although Mr. Bosque testified that he did no political campaign work for Mr. Siplin on state time, Ms. Caraballo testified that she did. According to Ms. Caraballo, Mr. Siplin directed her to work on political campaign ads, answer campaign phone calls, and help with voter registration and absentee ballots, for the campaign, all during state office hours. She testified that she confronted Mr. Siplin about this, explaining that she was not supposed to work on his political campaign during her state office hours, and he told “not to get caught” — but that she needed to help with the campaign because she would not have a job unless he got re-elected. Obviously, Ms. Caraballo’s testimony would be sufficient to support a guilty verdict on the misdemeanor charge, but for Mr. Siplin’s legal challenge to the statute itself.

As previously noted, Mr. Siplin challenges section 106.15(3) as vague, over-broad and violative of due process. We find that Mr. Siplin lacks standing to raise his vagueness challenge, and will briefly address this issue first. “The standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbiddeft conduct.” Brown v. State, 629 So.2d 841, 842 (Fla.1994) (citations omitted). “A statute is not void for vagueness if the language “ ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ ” ” Id.

Mr. Siplin argues that the statute is unconstitutionally vague because the terms “in furtherance of,” “services,” and “working hours,” are imprecise and fail to ' adequately warn of what conduct is proscribed. Although these terms appear relatively clear, we must determine whether Mr. Siplin has standing to assert a vagueness challenge before applying the vagueness test. See, e.g., J.L.S. v. State, 947 So.2d 641, 646 (Fla. 3d DCA 2007). The general rule is that a defendant cannot complain of a statute’s “vagueness as applied to the hypothetical conduct of others” when “the record demonstrates that [he or she] engaged in some conduct clearly proscribed by the plain and ordinary meaning” of the statute. Id. (quoting Sieniarecki v. State, 756 So.2d 68, 75 (Fla.2000)). Here, Mr. Siplin questions whether picking up a candidate’s suit at the dry cleaners or driving a candidate to a barber would be a “service” that could be viewed as undertaken “in furtherance of’ a candidacy for public office. However, the law does not allow Mr. Siplin to challenge the statute as vague based upon these hypothetical scenarios given the State’s evidence in this case that Mr. Siplin ordered Ms. Caraballo to answer campaign phones, work on campaign ads, and handle other tasks unquestionably central to the operation of his political campaign during her state working hours. Id. Accordingly, we find that Mr. Siplin lacks standing to raise a vagueness challenge. Id.

Mr. Siplin’s overbreadth and due process challenges both relate to the fact that section 106.15(3) does not expressly contain a guilty knowledge or mens rea requirement. Applied literally, the statute would criminally punish a candidate whenever a state employee worked on his or her campaign on state time, even without the candidate’s knowledge or approval, For example, assume a state employee volunteers to stand on a street corner during his state work hours (and without taking time off), to hold a sign in a large group of supporters, with a candidate on election day. Without a mens rea element, the candidate whose name appears on the sign could be prosecuted for the state employee’s misdeed, even though the candidate did not know the volunteer personally; did not solicit the help; and, had no idea that the person joining him to spread his campaign message was even a state employee. If applied in this fashion, we agree with Mr. Siplin that this statute would be unconstitutional on both over-breadth and substantive due process grounds.

However, criminal statutes are generally read to include a mens rea element, even when not expressly included in the statute. E.g., State v. Giorgetti 868 So.2d 512, 515-516 (Fla.2004); see also, State v. Oxx, 417 So.2d 287 (Fla. 5th DCA 1982); Deehl v. Knox, 414 So.2d 1089 (Fla. 3d DCA 1982); but see, Suit v. State, 906 So.2d 1013, 1022 (Fla.2005) (recognizing this rule but concluded that the statute in that case was “incapable of a narrower construction because there is no logical way to read a specific intent element into the statute as it is currently written.”). As explained in Giorgetti there are two reasons for this rule. First, because “guilty knowledge or mens rea was a necessary element in the proof of every crime” at common law, it is presumed that the legislature also intends to include a guilty knowledge element in its criminal statutes, absent an express statement to the contrary. 868 So.2d at 515-16. Second, criminal statutes that fail to include a mens rea element usually raise due process concerns, and courts are “obligated to construe statutes in a manner that avoids ... [holding a statute] unconstitutional.” Id. at 518.

Given this precedent, we believe that we must read section 106.15(3) as containing a mens rea requirement. Although this reading of the statute resolves Mr. Siplin’s constitutional challenges to section 106.15(3), it does not cure the fact that the jury in Mr. Siplin’s case was instructed that they could convict him with no mens rea element. Mr. Siplin addressed this issue at trial, and requested that the jury instructions include a mens rea element. Although Ms. Caraballo testified that Mr. Siplin personally pressured her to perform campaign work during state office hours (which, of course, constitutes direct evidence of mens rea), her testimony conflicted with other evidence. For example, Mr. Bosque testified that he never witnessed Mr. Siplin pressuring any employee to work on the political campaign, but did see Ms. Caraballo using work hours for personal matters unrelated to the campaign. He also testified to facts from which a jury could conclude that Ms. Cara-ballo held a personal bias against Mr. Sip-lin. Mr. Bosque testified that while Ms. Caraballo worked as Mr. Siplin’s legislative aide she talked negatively “all the time” about Mr. Siplin, his “opinions on community matters,” “how he.ran his office,” “how he ran his personal life,” and his “politics.” Ms. Cooper also testified that she never saw Mr. Siplin ask any Senate employee to “do campaign work during working hours,” and that the “office culture and policy” was that political campaign work “should not be done” during state work hours. Ms. Cooper also testified that she made sure that there was a complete separation between Mr. Siplin’s campaign office, which she was running, and his legislative office. In addition to the legal requirement for separation, Ms. Cooper testified that she did not trust Ms. Caraballo with any' campaign information because Ms. Caraballo belonged to a different political party.

Because of the evidence conflicting with Ms. Caraballo’s account, and impeaching her credibility based upon personal bias or prejudice, we cannot find that the failure to include a mens rea instruction on count 2, as requested by Mr. Siplin at trial, constituted harmless error. See, e.g., Cox v. State, 966 So.2d 337, 347 (Fla. 2007) (“The harmless error test ... requires the State “as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” ”) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)). Accordingly, even though we are applying a limiting construction to alleviate the potential due process and overbreadth infirmities in the statute, Mr. Siplin’s conviction must be reversed and remanded so that he can have the case tried before a jury properly instructed on the statute, with a mens rea requirement, should the State elect to prosecute the misdemeanor on remand. If the State elects not to proceed to trial on this charge again, it can simply nolle pros count 2. If it elects to go forward on the charge, the matter should be transferred to county court, for proceedings consistent with this opinion.

REVERSED AND REMANDED.

ORFINGER and MONACO, JJ., concur.

      . We capitalize "State” when referring to the State of Florida acting in its prosecutorial role, as a party in this case.

      . When a Senate employee was required to work in excess of forty hours in any given week, the overtime hours were banked as “compensatory time.” Accrued compensatory time could then be used, like accrued vacation time, to secure pay for time away from work.

      . Although the Senate’s routine practice had been to send monthly pay summaries to each local Senate office for distribution to employees, this practice was suspended (at least for Mr. Siplin's office), in response to the disruption caused by the 2004 hurricane season. Mr. Siplin’s local Senate office was rendered uninhabitable as a result of storm damage, and he had to relocate the office to temporary quarters. Several State witnesses testified that because Ms. Cooper’s state pay summaries were sent to her home during the entire time she was working on Mr. Siplin’s campaign, Mr. Siplin's office would not have received any documentation that would have put him on notice that Ms. Cooper was being paid her state salary for the months of August, September and October of 2004.

      . Because Siplin did not testify during the trial, there is no direct evidence of what he knew or believed other than the somewhat confusing Senate document he signed.

      . Mr. Bosque testified that he was hired onto Mr. Siplin’s Senate staff shortly before Hurricane Charley struck Central Florida in August of 2004. Charley was soon followed by Hurricanes Frances and Jeanne. Mr. Bosque explained that his primary role in the office quickly became community outreach, or a "campaign" to connect citizens affected by the storms with needed services. Although Mr. Bosque testified to his joint efforts with Mr. Siplin, during work hours, on the "campaign,” he clarified that he was referring to this informational campaign, and not to Mr. Siplin's political campaign. Mr. Bosque testified that he never saw Mr. Siplin pressure anyone on his Senate staff to work on the political campaign — but that the pressure was simply to help the community in the wake of the storms.

      . Although the State presented sufficient evidence from which a jury could conclude that Mr. Siplin knew of Ms. Caraballo’s campaign activities, on his behalf and during work hours, the type of standing requirement applicable to Mr. Siplin’s Vagueness challenge does not apply to his overbreadth or due process claims. An overbreadth challenge based upon infringement of First Amendment rights may be raised “even by one who does not show that his own conduct is innocent and not subject to being regulated by a narrowly drawn statute.” State v. Ashcraft, 378 So.2d 284, 285 (Fla.1979). In other words, a litigant need not show that his conduct is protected by the First Amendment, but rather, that enforcement of the statute may cause "others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). This relaxed standing requirement is allowed for First Amendment overbreadth challenges because statutes that restrict the exercise of First Amendment rights may have a chilling effect on such rights and must be "narrowly tailored” to address compelling government interests. Id. at 611-12, 93 S.Ct. 2908 (1973). Additionally, the State has not raised a standing challenge to Siplin’s substantive due process claim, and we are not aware of such a requirement in this context.

      .Overbreadth "refers to a challenge to a statute on the constitutional ground that it achieves its governmental purpose to control or prevent activities properly subject to regulation by means that sweep too broadly into an area of constitutionally protected freedom.” State v. Gray, 435 So.2d 816 (Fla.1983) (citing Broadrick, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830). Here, the State obviously has a legitimate interest in guarding state funds by restricting its employees from engaging in personal activities on state time. However, when judged in relation to the statute’s legitimate purpose, we conclude that the lack of a mens rea requirement in the statute would result in a real and substantial infringement of First Amendment rights by subjecting candidates who unwittingly violated the statute (while simply running a campaign in the legitimate exercise of First Amendment rights) to criminal prosecution.

      . The right of substantive due process arising out of the Fourteenth Amendment to the United States Constitution and Article 1, Section 9 of the Florida Constitution prevents the government from engaging in conduct that "shocks the conscience” or interferes with rights “implicit in the concept of ordered liberty.” Hudson v. State, 825 So.2d 460, 465 (Fla. 1st DCA 2002) (quoting United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). Generally, it violates substantive due process to criminalize purely innocent conduct. See, e.g., Giorgetti, 868 So.2d 512 (Fla.2004).

      . This can easily be accomplished by simply inserting the word "knowingly” into the statute before the word “use.” Thus, the statute would read as follows: “A candidate may not, in the furtherance of his or her candidacy for nomination or election to public office in any election, knowingly use the services of any state, county, municipal, or district officer or employee during working hours.” (emphasis added). This construction protects innocent activity, and thereby saves the statute.


text:
    Jose A. FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-510.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2008.
    Jose A. Fernandez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ and LAGOA, JJ.
   PER CURIAM.

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

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Napoleon BROWN, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-1838.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2008.
    Napoleon Brown, in proper person.
    Bill McCollum, Attorney General, and Richard Polin, Assistant Attorney General, for respondent.
    Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

We grant Napoleon Brown’s petition for writ of mandamus to compel the trial court to rule on his Motion for Post Conviction Relief, filed on September 7, 2005.

As we are hopeful that the lower court will comply forthwith, we withhold issuance of the formal writ for thirty (30) days.


text:
    Mark Randall SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2757.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2008.

      Mark Randall Smith, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ and LAGOA, JJ.
   PER CURIAM.

Petitioner appeals the trial court’s denial of his motion to correct an illegal sentence. We will treat this as a timely-fíled 3.800 motion and deny as the same issue has been raised in a previous motion and been ruled upon and denied. See Smith v. State, 669 So.2d 1133 (Fla. 3d DCA 1996).


text:
    Myrna GALLO, Appellant, v. CELEBRATION POINTE TOWNHOMES, INC., d/b/a Rancho Margate Mobile Home Park and United Homes International, Inc., Appellees.
    No. 4D07-496.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Rehearing Denied Feb. 21, 2008.

      Janet R. Riley, Plantation, for appellant.
    Carl R. Peterson, Jr. of Jolly & Peterson, P.A., Tallahassee, and Clark Cochran of Billing, Cochran, Heath, Lyles, Mauro & Anderson, Fort Lauderdale, for appel-lees.
   WARNER, J.

Appellant, a mobile home owner, appeals the dismissal of her declaratory judgment action against the mobile home park owner who sent notice of eviction to all of the park residents to pursue a change in use of the property. The owner sought rezoning of the property to construct townhomes, but the rezoning was not commenced prior to the notices of eviction. Appellant claims that the owner did not act in good faith in accordance with section 723.021, Florida Statutes (2005), because the eviction notice required her to abandon her mobile home prior to rezoning and a finding by the governmental body that other suitable facilities exist for the mobile home owners, as required by section 723.083, Florida Statutes. We affirm the dismissal of her complaint, concluding that section 723.083 does not create any good faith obligation on the part of the park owner to forestall eviction until rezoning is accomplished.

Appellant, Myrna Gallo, resided in Ranch Margate Mobile Home Park in Margate, Florida, in a mobile home she purchased in 2001. In February 2006 the park owner, Celebration Point Town-homes, Inc. (“Celebration”), sent a Notice of Park Closing to all park residents, pursuant to section 723.061(l)(d). This statute provides:

(1) A mobile home park owner may evict a mobile home owner, a mobile home tenant, a mobile home occupant, or a mobile home only on one or more of the grounds provided in this section.
(d) Change in use of the land comprising the mobile home park, or the portion thereof from which mobile homes are to be evicted, from mobile home lot rentals to some other use, provided all tenants affected are given at least 6 months’ notice of the projected change of use and of their need to secure other accommodations. The park owner may not give a notice of increase in lot rental amount within 90 days before giving notice of a change in use.

§ 723.061(l)(d), Fla. Stat. (2005).

The letter informed Gallo that she must vacate the lot and find an alternative location for her mobile home by September 30, 2006. Celebration intended to assist the mobile home park tenants by purchasing their mobile homes based upon a set formula. The tenants could also elect to seek funding assistance from the statutorily created Florida Mobile Home Relocation Trust Fund.

Within ninety days of the notice, Gallo filed a complaint for declaratory judgment. She alleged the foregoing facts, as well as the fact that while Celebration had applied for a rezoning of the mobile home park, the City of Margate had not granted the rezoning so that no change in use was authorized at the time of the notice. She claimed that she would be forced to vacate the mobile home prior to the change in use and thus abandon the protection afforded by section 723.083, Florida Statutes (2005), which provided:

No agency of municipal, local, county, or state government shall approve any application for rezoning, or take any other official action, which would result in the removal or relocation of mobile home owners residing in a mobile home park without first determining that adequate mobile home parks or other suitable facilities exist for the relocation of the mobile home owners.

Gallo’s complaint contended that by notifying the tenants of their eviction prior to approval of the zoning change, Celebration violated its obligation of good faith and fair dealing required in section 723.021, which provides that “[e]very rental agreement or duty within this chapter imposes an obligation of good faith and fair dealings in its performance or enforcement.” § 723.021, Fla. Stat. (2005).

In its pleading opposing the complaint, Celebration contended that section 723.083 did not apply to it and instead only applied to state action. It also pointed to section 723.061(3) which provides, “The provisions of s. 723.083 shall not be applicable to any park where the provisions of this subsection apply.” § 723.061(3), Fla. Stat. (2005) (footnote omitted).

The matter was referred to a magistrate who issued a report and recommendation to dismiss the complaint, as section 723.061(3) exempts the park owner from the application of section 723.083. In other words, defendants’ only statutory responsibility, when evicting tenants for a change in use, is to comply with the notice requirements found in section 723.061. Because the defendants had complied with the statute, Gallo had no claim against Celebration. The circuit court adopted the general magistrate’s report in all respects and dismissed the claim with prejudice. Although the court technically dismissed Gallo’s complaint, it actually declared her rights with respect to the statutes involved, upon which she sought a declaration, concluding that they were inapplicable to Gallo. Gallo appeals.

Mobile home park owners and tenants have experienced a difficult relationship in Florida law. As noted in Harris v. Martin Regency, Ltd., 576 So.2d 1294, 1297 (Fla.1991):

Where mobile homes are concerned, substantial constitutional property rights are implicated on both sides of the debate. See art. I, § 2, Fla. Const. It is clear that a mobile home park owner has a constitutional property right to use the land for any lawful purpose. It is just as clear that mobile home owners are not mere tenants-they are home owners, and, as we recognized in Stewart, “[h]ome ownership is an important aspect of family life.” [Stewart v. Green, 300 So.2d 889, 892 (Fla.1974) ]. Hence, we observed that “a hybrid type of property relationship exists between the mobile home owner and the park owner and ... the relationship is not simply one of landowner and tenant. Each has basic property rights which must reciprocally accommodate and harmonize.” Id.

To accommodate those diverging interests, the legislature enacted various statutes to protect both interests. It permitted the park owner to evict its tenants because of a change in use of the land comprising the mobile home park, but required at least six months’ notice of eviction. See § 83.759(l)(d), Fla. Stat. (1983). The statute did not require the owner to specify the nature of the projected changes. Harris, 576 So.2d at 1296.

In 1984, the legislature substantially rewrote and renumbered the mobile home statute. It continued, however, to permit a park owner to evict its tenants where a change in use was contemplated. In that rewrite, it also added section 723.083, regarding the duty of governments considering a rezoning petition to determine that “adequate mobile home parks or other suitable facilities existed for the relocation of the mobile home owners.” § 723.083, Fla. Stat. (1984).

Due to “substantial problems within the mobile home industry,” Fla. H.R. Comm, on Judiciary, HB 766 (1986) Staff Analysis 1 (April 21, 1986), the legislature again modified its statutes, particularly with respect to the eviction of mobile home tenants for a change in use. It retained the right of the park owner to evict for change in use but increased the notice period to one year of any projected change. § 723.061(l)(d), Fla. Stat. (1986). It adopted section 723.061(2) which required homeowners objecting to a change in use to file a petition for administrative or judicial remedies within ninety days from the date of their notice of eviction or be barred from relief. A homeowner was not prevented by this provision from objecting to a zoning change. § 723.061(2), Fla. Stat. The legislature also included a requirement that the park owner elect to either buy the mobile home owner’s home, relocate it to another park, or pay the homeowner to relocate. § 723.061(2)(a), Fla. Stat. Where this purchase/relocation provision applied, “The provisions of s. 723.083 shall not be applicable .... ” § 723.061(2)(d), Fla. Stat.

This requirement that the park owner purchase the tenant’s home or relocate it was declared unconstitutional in Aspen-Tarpon Springs Limited Partnership v. Stuart, 635 So.2d 61 (Fla. 1st DCA 1994). The court found that it constituted a taking of property without just compensation and went “far beyond the legitimate goal of reasonably accommodating conflicting interests....” Id. at 67-68.

The legislature responded in 2001 and again modified the statute, eliminating the purchase/relocate requirement. It reverted to requiring six months’ notice of eviction for change in use of the park. § 723.061(l)(d), Fla. Stat. (2001). It eliminated section 723.061(2), regarding the purchase/relocation obligation of the park owner, except for subsection (2)(d) regarding the application of section 723.083, which it renumbered subsection (3). Thus, that subsection read, “The provisions of s. 723.083 shall not be applicable to any park where the provisions of this subsection apply.” § 723.061(3), Fla. Stat. The statutory revisors included a Note: “The reference to ‘this subsection’ appears as it did prior to the amendment by s. 6, ch. 2001-227. Prior to the amendment, subsection (3) was paragraph (2)(d).” § 723.061(l)(d), Fla. Stat. (2001).

To replace the purchase/relocation obligation, the legislature created the Florida Mobile Home Relocation Corporation to provide relocation assistance to mobile home tenants required to move pursuant to an eviction for change in use of the park. § 723.0611, Fla. Stat. (2001). The corporation would operate the Florida Mobile Home Relocation Trust Fund. § 723.06115, Fla. Stat. Mobile home park owners seeking to evict its tenants for a change in land use would make payments to the fund for each mobile home owner who applied for relocation assistance. This statute was in existence when Celebration sent its notice of change of use eviction to Gallo.

From this review of the statutes, it is apparent that the obligation of the government to consider the adequacy of parks for relocation, required pursuant to section 723.083, is independent of the park owner’s right to evict a tenant for change in use, pursuant to section 723.061. Harris makes this clear, as a park owner does not have to specify what change of use it sought. 576 So.2d at 1296. Section 723.083 does not place any burden on the mobile home park owner; the park owner’s only obligation upon filing an application for rezoning is to give notice of the application to the park tenants. § 723.081, Fla. Stat. (2005). It is the government’s obligation to determine that adequate space is available for the mobile home owners or “other suitable facilities.” § 723.083, Fla. Stat. .

Since 1986, the legislature sought to provide relief to mobile home park tenants where park owners sought eviction to change the use of the park. It provided assistance for relocation first by requiring the park owner to purchase or relocate and then, after that provision was declared unconstitutional, from a special fund it created. Where this relief was provided, the legislature did not require compliance with section 723.083 by the government. See § 723.061(2)(d), Fla. Stat. (1986). This makes sense, because where the tenants’ mobile homes are bought or relocated by the park owner or through the assistance of the State Fund, it would affect the zoning authority’s calculation of the adequacy of remaining facilities. The legislature continued this exemption from section 723.083 when it amended the statute again in 2001 and set up the trust fund.

When the legislature revised the statute, it eliminated the subsections of the former section 723.061(2), except subsection (d), providing for the inapplicability of section 723.083. It merely renumbered it as subsection (3). The legislature obviously did not' intend to eliminate the substance of the provision. It is a cardinal rule of statutory construction that appropriate effect should be given to all the terms of the statute when it can be done without violating legislative intent. See Davis v. Florida Power Co., 64 Fla. 246, 60 So. 759, 765 (1913). Gallo’s interpretation would render section 723.061(3) meaningless.

The review of the history of the provisions makes it clear that the legislature did not intend to require compliance with section 723.083 where it had provided for alternative compensation to the mobile home owner for relocation. Because the legislature expressly rendered section 723.083 inapplicable to change of use evictions, we conclude that the trial court correctly determined that the statutory obligation Gallo asserted the park owner violated did not exist. The park owner had no obligation to await the results of the rezoning decision before sending its notice of eviction, which is essentially what Gallo maintains should occur. We therefore affirm.

KLEIN and GROSS, JJ., concur.


author: STONE, J.

text:
    Luis CONCHA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-776.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Rehearing Denied Feb. 13, 2008.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Concha was adjudicated guilty of felony driving under influence.

The primary issue on appeal is whether the prosecutor’s questioning was fairly susceptible of being interpreted as a comment on Concha’s right to remain silent. We conclude that it was, and accordingly reverse.

A police officer stopped Concha for an unrelated violation. The officer then observed Concha with bloodshot, glossed over eyes, and smelled alcohol on Concha. Concha subsequently failed to successfully complete roadside balance tests and was taken to an alcohol testing center (BAT) where he refused to perform any tests. At trial, a testifying officer stated that Con-cha:

refused to do ... any tests whatsoever.
* * *
Q. And was he given the opportunity to take a breath test?
A. Yes, he was.
⅜ * ⅜
That’s when he said he no longer spoke any English. Through the course of
that we then brought in [someone] who did speak Spanish. He refused to take any other tests at that time.

On re-direct, the state asked the officer:

Q. And when you got to the BAT facility that morning, did he [Concha] demand to show the jury any roadsides, any exercises, meaning through the video?
[Concha’s counsel]: Objection. It bears on my client’s 5th Amendment right.
THE COURT: Overruled.
Q. You said previously he demanded in the car I want to do the roadsides and breath test. Right?
A. Yes.
Q. When he got to the BAT facility did he say now that I’m on video I demand to show the jury at a later point in time how I perform on the roadsides?
A. No. When he got there I guess— see, the facility—
A. Just stop right there. Did he demand to do it, to do the roadsides?
A. Prior to getting there, yes.
Q. But when he got to the BAT, so that the jury can see, did he demand to do the roadsides at the BAT?
A. No.
Q. Did he demand to do a breath test?
A. No.
Q. To the contrary, did he refuse?
A. He did refuse.

During its closing argument, the state again emphasized Concha’s failure to ask for more tests:

This is a person with a guilty conscience ... who knew full well if he gave a breath test, you all would know how guilty he was. I’m not drunk he says. Okay. Prove it. No, no, no. No, no, no. I’m not going to let the jury see that. No, no, no, the jury is not going to see how I’m going to perform on the video.

Concha’s defense theory was that police rushed their duties that night, and the state failed to prove beyond a reasonable doubt that Concha’s normal faculties were impaired.

A prosecutor’s question that is fairly susceptible of being interpreted by the jury as a comment on a defendant’s right to remain silent is improper. Shabazz v. State, 928 So.2d 1267, 1268-69 (Fla. 4th DCA 2006); see also Rodriguez v. State, 753 So.2d 29, 37 (Fla.2000) (emphasizing that the “fairly susceptible” test is a very liberal rule); Mitchell v. State, 911 So.2d 1278, 1279 (Fla. 4th DCA 2005) (citing Ruiz v. State, 378 So.2d 101, 102 (Fla 3d DCA 1979) (noting that a prosecutor cannot comment on a suspect’s failure to make a statement to an arresting or investigating police officer)); Giorgetti v. State, 821 So.2d 417, 422 (Fla. 4th DCA 2002) (“The cases generally condemn any attempt to establish that defendant did not protest his arrest by declaiming his innocence in some way when he was being arrested.”); Harris v. State, 726 So.2d 804, 805 (Fla. 4th DCA 1999) (“Under Hoggins, any reference, either through testimony or in argument, to a defendant’s exercise of silence after the arrest is impermissible.”) (citing State v. Hoggins, 718 So.2d 761, 768, 772 (Fla.1998)).

We recognize that a DUI suspect’s refusal to submit to pre-arrest field sobriety tests may be admissible. See State v. Taylor, 648 So.2d 701 (Fla.1995) (holding that Taylor’s refusal was not elicited in violation of the Fifth Amendment privilege against self-incrimination, and “that the refusal is probative of the issue of consciousness of guilt”). However, we deem the Taylor circumstances distinguishable.

Here, the state suggested Concha knew he was intoxicated because he did not ask to perform the sobriety tests when he had the opportunity at the BAT facility. The state’s inquiry into Concha’s failure to demand the tests was fairly susceptible of being interpreted as a comment on Con-cha’s right to remain silent. Concha had a right not to say anything and not to demand an exculpatory procedure. See Giorgetti 821 So.2d at 422; Harris, 726 So.2d at 805.

The state argues that its examination of the officer was admissible to impeach Con-cha’s explanation as to why he refused to take the sobriety tests at the BAT facility. However, even if post-arrest silence could be used under such circumstances to impeach a defendant, Concha did not take the stand until after the officer testified. Thus, the state’s re-direct could not have been used to impeach non-existent testimony.

Finally, we do not construe the admission of the testimony as harmless. Evidence of Concha’s impairment was not overwhelming and consisted solely of the roadside observations. Moreover, the state furthered the error by highlighting it in closing arguments.

Therefore, we reverse and remand for a new trial.

STEVENSON and MAY, JJ., concur.