author: STONE, J.

text:
    Timothy Duane GAYER, Appellant, v. FINE LINE CONSTRUCTION & ELECTRIC, INC.; Labor Finders of Broward County, Inc.; Labor Finders International, Inc.; and L.F.I. Safety Management Services, Inc., Appellees.
    No. 4D06-2159.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2007.
    Rehearing Denied Jan. 11, 2008.

      Adam Lawrence of Lawrence & Daniels, and Stabinski & Funt, P.A., Miami, for appellant.
    Donna M. Krusbe of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., West Palm Beach, for Appellee-Fine Line Construction & Electric, Inc.
   STONE, J.

Timothy Gayer appeals a summary judgment entered in favor of Fine Line on Gayer’s spoliation of evidence claim. Appearing as an issue of first impression, we conclude that a special employer using a laborer from a help supply services company has a duty under section 440.39(7), Florida Statutes, to preserve evidence for the injured laborer’s claim against a third-party tortfeasor.

Gayer was employed by a help supply services company, Labor Finders of Bro-ward, Inc. (Labor Finders), which leased workers to- construction companies, paid the workers an hourly wage, and provided workers’ compensation benefits. Labor Finders sent Gayer to Fine Line, which directed Gayer to remove metal framing from a ceiling and provided Gayer with a tall folding ladder and an electric drill. Gayer fell from the ladder, sustaining severe injuries. The ladder, subsequently, could not be located.

Gayer first sued Fine Line for negligence but Fine Line successfully raised an affirmative defense of worker’s compensation immunity from tort liability because Gayer was Fine Line’s borrowed employee under section 440.11(2), Florida Statutes. Fine Line ultimately obtained summary judgment on the negligence claim.

Gayer subsequently amended his complaint to allege a spoliation claim for the lost ladder against Fine Line and Labor Finders. Fine Line moved for summary judgment, arguing that it had no duty to preserve the ladder under section 440.39(7), Florida Statutes, because Fine Line was not Gayer’s “employer.” The trial court granted Fine Line’s motion and entered final judgment for Fine Line on the spoliation claim. We reverse.

Reviewing the summary judgment order de novo, we analyze the record in the light most favorable to the non-moving party. E.g., 5th Ave. Real Estate Dev., Inc. v. Aeacus Real Estate Ltd. P’ship, 876 So.2d 1220, 1221 (Fla. 4th DCA 2004).

Generally, to establish a claim for spoliation, the plaintiff must prove six elements: “(1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment and the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.” Flagstar Cos. v. Cole-Ehlinger, 909 So.2d 320, 322-23 (Fla. 4th DCA 2005) (internal quotations omitted).

The issue in the case sub judice is whether element two, duty to preserve, exists. Because a duty to preserve evidence does not exist at common law, the duty must originate either in a contract, a statute, or a discovery request. Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So.2d 843, 845 (Fla. 4th DCA 2004). Gayer does not allege a contractual duty or a duty arising from a discovery request. Citing section 440.39(7), Florida Statutes, Gayer argues that Fine Line had a statutory duty to preserve evidence.

Included in the Florida Workers’ Compensation Act (Act), section 440.39(7) states:

“The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing inspection of premises, but only to the extent necessary for such purpose.”

(emphasis added) The General Cinema Beverages of Miami v. Mortimer, 689 So.2d 276, 279 (Fla. 3d DCA 1995) court explained that the duty to cooperate “must necessarily include a duty to preserve evidence.” Accord Shaw v. Cambridge Integrated Servs., 888 So.2d 58, 61-62 (Fla. 4th DCA 2004) (recognizing that section 440.39(7), Florida Statutes, creates an independent cause of action for spoliation of evidence).

The terms “employer” and “employee” are defined in section 440.02, Florida Statutes, which begins by stating that “[w]hen used in this chapter, unless the context clearly requires otherwise, the following terms shall have the following meanings.” § 440.02, Fla. Stat. (emphasis added). Subsection (15) of section 440.02 then broadly defines “employer” to include, inter alia, “every person carrying on any employment.” “ ‘Employee’ means any person engaged in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed .... ” § 440.02(14)(a), Fla. Stat. “ ‘Employment’... means any service performed by an employee for the person employing him or her.” § 440.02(16)(a), Fla. Stat.

The context of the disputed subsection (7) is section 440.39. “The point of section 440.39 is to preserve causes of action against third-party tortfeasors and to impose a duty of cooperation to that end.” General Cinema, 689 So.2d at 279. Section 440.39 also contains a statutory subro-gation scheme that prevents double recovery to an employee by giving “the entity that paid the workers compensation benefits!,] • ■ • statutory subrogation rights in any third-party suit.” Summit Claims Mgmt. Inc. v. Lawyers Express Trucking, Inc., 913 So.2d 1182, 1183 (Fla. 4th DCA 2005).

An analysis of the employer/employee terms’ meaning does not end with the definitions section. See Hazealeferiou v. Labor Ready, 947 So.2d 599, 602 (Fla. 1st DCA 2007) (“Distinguishing the relevant employer for workers’ compensation purposes in employee leasing context is more complicated, however, than simply determining who might qualify as an employer under chapter 440.”).

Under the doctrine of lent employment, a lending employer, such as a help supply services company, “is known as the ‘general employer’ and the borrowing employer, the ‘special employer.’ ” 3 LaRson’s WORKERS’ Compensation Law § 67.01[1] (2006). At common law, an employee lent by a general employer is presumed to continue working for and be an employee of the general employer, not a borrowed servant of the special employer. See Derogatis v. Fawcett Mem’l Hosp., 892 So.2d 10.79 (Fla. 2d DCA 2004).

The majority rule is “that if the general employer simply arranges for labor without heavy equipment, the transferred worker then becomes the employee of the special employer.” Folds v. J.A. Jones Constr. Co., 875 So.2d 700, 703 (Fla. 1st DCA 2004) (citing 3 LaRson’s Workers’ Compensation Law § 67.05[3] (2003)). “Such [a] rule applies particularly to the furnishing of labor services.” Id. In Florida, “a special employment relationship” exists where “[1] the special employer has assumed control of the employee, [2] the employee has consented to that control, and [3] the work being done is for the benefit of the special employer.” Hoar Constr. v. Varney, 586 So.2d 463, 464 (Fla. 1st DCA 1991) (citations omitted). The Varney court also explained that “the essential element controlling the issue as to [Varney’s] employment status regards the right of control, or the right to direct, the manner in which the work shall be done. The payment of wages is the least important factor.” Id. (citations omitted).

In a workers’ compensation case, section 440.11(2) addresses “the question of which of the two, the general or special employer, should be considered the employer of the temporarily assigned worker at the time of the injury.” Folds, 875 So.2d. at 703. Subsection (2) of section 440.11, “Exclusiveness of Liability,” Florida Statutes, provides in relevant part:

The immunity from liability ... shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company ... when such employees ... are acting in furtherance of the employer’s business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer. The employer shall be liable for and shall secure the payment of compensation to all such borrowed employees as required in s. 440.10, except when such payment has been secured by the help supply services company.

(emphasis added).

For the purposes of section 440.11, “any other employee” of the employer is not subject to an employer’s assumption of risk or fellow servant defenses, for example. See § 440.11(1), Fla. Stat. Further, the statutory employer obtains immunity in exchange for its obligation to secure workers’ compensation, unless the help supply services company fulfills that duty. See Folds, 875 So.2d at 702.

In sum, section 440.11(2) “creates a rebuttable presumption that a special employer using the services of a temporary employment agency ... becomes the statutory employer of the borrowed servant.” Id. at 703; see also 3 Lahson’s WORKERS’ Compensation Law § 67.05[3] n. 24.1 (2006) (“Under a Florida statute, employees from ‘help supply services companies’ are treated, for workers’ compensation purposes, as employees of the employer to whom they have been sent to work.” (citing § 440.11(2), Fla. Stat.)).

Here, the parties fit the broad definitions of “employer” and “employee” under the Act. Additionally, the context of section 440.39(7) does not require another meaning to the term “employer” or “employee.” Subsection (7) aims to preserve an employee’s claim against a third party tortfeasor by requiring an employer to, inter alia, “allow[] inspection of premises.” This duty necessarily must apply to special or statutory employers like Fine Line that control access to the accident site.

Applying the majority rule under the doctrine of lent employment, Gayer is a borrowed employee of Fine Line because Labor Finders merely arranged for Gayer’s labor, without providing heavy equipment. Applying the three Varney factors, Fine Line is also Gayer’s special employer because the record shows that Fine Line assumed control of Gayer by ordering Gayer to work on Fine Line’s site with Fine Line’s tools, Gayer consented by undertaking the assignment and climbing the provided ladder, and the work was for Fine Line’s benefit because Gayer was working on the renovation project awarded to Fine Line. A special employer, in turn, also meets the definition of “employer” because the special employer carries on employment.

Fine Line’s argument that it did not have an employment relationship with Gayer because it did not directly pay or provide benefits to Gayer is not persuasive because Gayer does not assert an actual, but a special employment relationship, where payment of wages is not a factor. Even where an actual employer/employee relationship is argued, the right of control is more indicative than payment of wages.

As a special employer using the services of Labor Finders, a help supply services company, Fine Line is a statutory employer under section 440.11(2), Florida Statutes. Although section 440.11(2) states that “a borrowed employee ... for the purposes of this section, shall be treated as any other employee of the employer,” the emphasized language refers to the defenses in subsection (1) of section 440.11, rather than suggest that a statutory employer is not subject to the rest of the Act.

Finally, whether Fine Line had notice of Gayer’s request to preserve the ladder is not an issue on appeal. We conclude that a special employer of a borrowed employee fits the definition of “employer,” as that term is used in section 440.39(7), and remand for further proceedings on the spoliation claim.

STEVENSON and HAZOURI, JJ., concur.

      . The first element is met because Gayer claims that due to Fine Line negligently losing the ladder, Gayer cannot pursue a product liability claim against the manufacturer or distributor of the ladder.

      . The purpose of the Act is “to benefit employee and employer alike, in that [it] provide[s] for employers a liability that is limited and determinate, and for employees a remedy that is both expeditious and independent of proof of fault.” Shaw v. Cambridge Integrated Servs., 888 So.2d 58, 61-62 (Fla. 4th DCA 2004) (citation omitted).

      .However, in a first party spoliation claim, where the spoliator is also the tortfeasor, the supreme court recently held that no independent cause of action for spoliation exists. Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 347 & 346 n. 2 (Fla.2005) (noting that the decision did not "consider[] whether there is a cause of action against a third party for spoliation of evidence”).

      . This element is also described as requiring "a contract for hire, express or implied, between the special employer and the employee.” Horn v. Tandem Health Care, 862 So.2d 938, 940 (Fla. 2d DCA 2004) ("The evidence of a contract creating a special employment must amount to a clear demonstration of a deliberate and informed consent by the employee.” (internal quotations omitted)).


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Mario DIAZ, Appellant, v. Lynn DIAZ, Appellee.
    No. 4D07-487.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2007.

      Andrew C. Barnard of Andrew C. Barnard, P.A., Miami, for appellant.
    No appearance for appellee.
   POLEN, J.

Appellant Mario Diaz appeals a final judgment of dissolution of marriage and the denial of a motion for rehearing on the final judgment. Diaz raises several issues in this appeal, among them the trial court’s valuation of the parties’ marital assets. Diaz argues the trial court erred by refusing to consider the value of the former wife’s survivor benefits in his pension, in failing to consider the impact of federal income taxes on his Deferred Retirement Option Program account (DROP). We find merit to these arguments and reverse the trial court’s ruling on these two points and affirm on all other points.

“The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.” Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003). “The distribution of marital assets or liabilities must be supported by factual findings in the judgment based on competent substantial evidence.” Crockett v. Crockett 708 So.2d 329, 330 (Fla. 1st DCA 1998). “It is well settled that a spouse’s entitlement to pension or retirement benefits must be considered a marital asset for purposes of equitably distributing marital property.” Johnson v. Johnson, 602 So.2d 1348, 1349 (Fla. 2d DCA 1992). “Once a pension, or other type of retirement benefit, is considered a marital asset, that asset may be treated as property subject to equitable distribution or as a source of support obligations.” Id.

Mario argues the trial court erred in undervaluing the former wife’s share of his pension. Mario is a police officer with the City of Fort Lauderdale and had a pension and DROP account through the City. At some point before the parties decided to divorce, Mario had opted to take an irrevocable option requiring him to name a beneficiary in the event he died before reaching a certain age, and had named the former wife as the beneficiary. The option was irrevocable in the sense that Mario was required to name someone as a beneficiary although he had the option to change who was designated as the beneficiary if he so desired.

When dividing the parties’ marital assets, the trial court assigned a value to Mario’s pension and determined the value of the former wife’s share in this pension without valuing the worth of the former wife’s survivor benefits to the pension. Mario’s expert assigned a value of $155,000 to the former wife’s survivor benefits while the former wife’s expert did not assign a value to the benefits. The trial court refused to consider this valuation as Mario’s pension was received through a municipality, making it not subject to a Qualified Domestic Relations Order (QDRO). A QDRO is, in pertinent part, a “domestic relations order ... which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.” DeSantis v. DeSantis, 714 So.2d 637 (Fla. 4th DCA 1998). As a result, Mario’s employer would not be precluded from allowing Mario to change the beneficiary to someone other than the former wife.

The trial court determined it could not directly enforce the payment of these benefits to the former wife, hence it refused to include them in the valuation of assets. The former wife’s expert testified that it would be difficult for the trial court to valúate the survivor benefits or to enforce the benefits, while Mario’s expert valued the survivor benefits and testified it would not be difficult to secure payment of these benefits to the former wife.

We find the trial court erred in failing to include the value of the survivor benefits of Mario’s pension. Survivor benefits in pensions are considered marital property. See Carlton v. Carlton, 876 So.2d 1267, 1271 (Fla. 2d DCA 2004). While it is true that Mario could change the beneficiary to someone other than the former wife, the evidence showed that at the time of the parties’ divorce, the former wife was the designated recipient of the survivor benefits. Moreover, the decision to appoint a beneficiary was an irrevocable decision that resulted in a ten to twelve percent reduction in Mario’s payout, and changing the beneficiary would result in further reductions. The survivor benefits, which were assigned to the former wife during the course of the marriage, were marital property that should have been included in the valuation of assets and failure to do so resulted in an inequitable distribution of assets.

While the trial court may not be able to issue a QDRO keeping Mario from designating a new beneficiary to the survivor benefits, it can fashion another remedy, such as insurance or giving Mario and his employer the opportunity to agree not to change the beneficiary. “The trial court possesses broad discretionary authority to do equity between the parties when making financial awards in dissolution proceedings.” Carrollo v. Carrollo, 920 So.2d 16, 18 (Fla. 3d DCA 2004). We reverse this issue and remand to the trial court to hold an evidentiary hearing allowing both sides to present evidence of the value of the surviv- or benefits to be used in recalculation of the marital distribution.

Mario next argues the trial court erred in not considering the tax consequences on the distribution of his pension and DROP account. While “a trial court should ordinarily consider income tax consequences in the evaluation of marital assets, we also recognize that ‘a trial court cannot be faulted for not considering the tax consequences if counsel for the parties neglect to present evidence on the subject.’ ” Kadanec v. Kadanec, 765 So.2d 884, 886 (Fla. 2d DCA 2000). When evidence of a tax impact is presented, it is error for the trial court to fail to consider these consequences. Sharon v. Sharon, 862 So.2d 789, 791 (Fla. 2d DCA 2008).

In this case, both parties’ experts agreed that Mario’s pension would be tax-affected. The former wife’s expert testified that Mario’s pension would be taxed at a 22-25% tax rate and that the parties could avoid tax consequences on the DROP account by rolling it over into another retirement account. Mario’s expert testified that the former wife’s portion of the DROP account would be tax-affected as there was no way for her to roll the payout directly over into another retirement account as Mario could not directly assign the money to her and instead had to withdraw the funds with which to pay her portion.

We find the trial court erred in failing to consider the tax consequences to Mario’s pension and DROP account when dividing the parties’ assets, as there was evidence presented that Mario’s pension and his DROP account would be tax-affected. We reverse on this issue and remand to the trial court for an evidentiary hearing to determine the consequences of taxation on Mario’s pension and DROP account, as well as alternative methods of minimizing the tax consequences to both parties.

Mario also raises an issue concerning the trial court’s valuation of the former wife’s automobile when distributing the parties’ assets, asserting the trial court was not following its original valuation date. “The trial court’s valuation must be based on competent evidence.” Augoshe v. Lehman, 962 So.2d 398, 403 (Fla. 2d DCA 2007). The former wife filed several amended financial affidavits prior to trial, listing her vehicles’ worth as $10,000. However, in the schedule of assets and liabilities used as an exhibit for trial, the former wife lists the value of her automobile as $1,500.00. We find there was no error in the trial court’s reliance on the former wife’s exhibit at trial which recalculated the value of the automobile, as there is no evidence that the actual value changed after the filing date, rather than the value being corrected from an erroneous value previously asserted.

We reverse the trial court’s distribution of marital property as it relates to Mario’s pension and DROP account, to consider the value of the survivor benefits to Mario’s pension, as well as to consider the tax impact on the distribution of Mario’s pension and his DROP account, and remand for an evidentiary hearing to allow both parties to present evidence on these two issues. We affirm as to all other issues.

KLEIN and MAY, JJ., concur.


author: WARNER, J.

text:
    STATE of Florida, Appellant, v. Brian HINKLE, Appellee.
    No. 4D06-4527.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2007.
    Rehearing Denied Jan. 11, 2008.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellant.
    Jonathan S. Friedman of Jonathan S. Friedman, P.A., Fort Lauderdale, for ap-pellee.
   WARNER, J.

The state appeals an order granting ap-pellee Hinkle’s motion to dismiss the charge of carrying a concealed weapon pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). Because the questions of whether the weapon was accessible and concealed were disputed, we reverse.

A Broward County deputy sheriff pulled over a vehicle, operated by Hinkle, for speeding. As the deputy approached, Hin-kle placed both hands outside the driver’s side window and said “he did have a firearm in the vehicle and did not have a concealed weapons permit.” In response to the deputy’s inquiry into the gun’s location, Hinkle stated that it was on the front passenger’s seat. However, because it was Mother’s Day, the gun was under a bouquet of flowers he had recently purchased. At the officer’s direction, Hinkle lifted the bouquet to reveal a small stainless steel automatic weapon. The firearm was not loaded. Hinkle was charged with unlawfully, and knowingly, carrying a concealed firearm on or about his person, contrary to section 790.01(2), Florida Statutes (2006).

Hinkle filed a sworn motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). He argued that the undisputed facts failed to establish a prima facie case. The state did not file a traverse, maintaining that the issue was one of law as to whether the facts constituted carrying a concealed weapon. The trial court granted the motion, and the state appeals.

Because a motion to dismiss pursuant to rule 3.190(c)(4) requires the lower court to make a pretrial determination of the law of the case when the facts are not in dispute, the standard of review on appeal is de novo. State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002). The state need only establish a prima facie case and “is entitled to the most favorable construction of evidence, and all inferences should be resolved against the defendant.” Id.

Section 790.001(2) defines a concealed firearm as “any firearm ... which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.” In Ensor v. State, 403 So.2d 349, 354 (Fla.1981), the supreme court established a two-pronged test under this statute, explaining:

For a firearm to be concealed, it must be (1) on or about the person and (2) hidden from the ordinary sight of another person. The term “on or about the person” means physically on the person or readily accessible to him. This generally includes the interior of an automobile and the vehicle’s glove compartment, whether or not locked. The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life.

The court also held that “a weapon need not be totally hidden from view to constitute a ‘concealed weapon’....” Id. at 353-54 (emphasis added). The outcome will turn on the facts in each case and “[i]n all instances, common sense must prevail.” Id. at 354-55. In Dorelus v. State, 747 So.2d 368, 371 (Fla.1999), the supreme court noted that the issue of whether the weapon is hidden from the ordinary sight of another turns on various factors including, “the location of the weapon within the vehicle” and whether the weapon is covered or obstructed by something. Whether a weapon is concealed is ordinarily a question for the trier of fact. Id.

Taking the facts of this case in a light most favorable to the state, the firearm was on the seat next to Hinkle, readily accessible to him. Although Hinkle placed his hands outside the driver’s window, the firearm was still within ready reach of Hinkle. In those cases which have determined that a firearm found in a vehicle is not on or about the defendant’s person, the defendant has been outside the vehicle when the firearm is discovered. See Gehring v. State, 937 So.2d 169 (Fla. 2d DCA 2006); White v. State, 902 So.2d 887 (Fla. 1st DCA 2005); Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996).

The firearm was covered by a bouquet of flowers which had to be removed to reveal its presence. For the purpose of a motion to dismiss, the evidence presented a prima facie case of concealment. Therefore, the court erred in granting the motion to dismiss.

Hinkle points to the fact that he placed his hands outside the car and told the officer of the presence of the gun as negating his offense. Intent, however, is not an element of the crime, Dorelus, 747 So.2d at 371, although it may influence a jury in determining that the firearm was not being carried in a manner to conceal its identity.

Giving the evidence the most favorable construction for the state, we conclude that the state presented a prima facie case. The court erred in granting the motion to dismiss. We therefore reverse and remand for further proceedings.

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


author: PER CURIAM.

text:
    Jerome BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3066.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2007.
    Rehearing Denied Jan. 9, 2008.
    Jerome Bailey, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The issue presented in the motion has already been decided adversely to the appellant on numerous occasions. See Bailey v. State, 877 So.2d 836, 838 (Fla. 4th DCA 2004); Bailey v. State, No. 4D05-2602 (Fla. 4th DCA Aug. 11, 2005) (dismissing petition for writ of habeas corpus as legally insufficient); Bailey v. State, 933 So.2d 535 (Fla. 4th DCA 2006) (Table). Because the denial of this issue — on the merits, the first time it was raised — was affirmed on appeal, the denial is the law of the case with respect to this issue. See State v. McBride, 848 So.2d 287, 289-90 (Fla.2003) (noting that law of the case doctrine requires that questions of law decided on appeal must govern the case through all subsequent stages). Furthermore, there is no manifest injustice in the failure to correct an illegal sentence if the defendant is serving concurrent sentences of the same length, or if a correction has the potential of resulting in an increased term. Id. at 292. Both of these exceptions would apply to appellant.

However, in his initial brief filed in the instant appeal, appellant raises a new issue which was not raised in the instant motion, is not mentioned in the summary record provided to this court in connection with this appeal, and which he does not indicate he ever raised before at the trial court level. He claims that the judge who ruled on his postconviction motions had recused himself from his initial case, and thus orders entered by the recused judge were void. If his allegations are true, there is some authority to support his position. See Goolsby v. State, 914 So.2d 494 (Fla. 5th DCA 2005). This issue cannot be raised for the first time on appeal. We affirm but without prejudice to raising this issue in a properly filed motion.

WARNER, POLEN and HAZOURI, JJ., concur.


text:
    Rebecca CANCEL and Ernesto Cancel, Appellants, v. OLEN PROPERTIES CORP., a Florida corporation; Olen Residential Realty Corp., a foreign corporation; John Doe Corp., Florida corporations; and Jane Doe Corp., foreign corporations, Appellees.
    No. 4D06-4582.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 2007.
    Rehearing Denied Jan. 4, 2008.
    Marlowe J. Blake of Marlowe J. Blake, P.A., Hallandale Beach, for appellants.
    Gene Reibman, Fort Lauderdale, for Appellee-Olen Properties Corp.
   PER CURIAM.

Cancel sued both Olen Properties and Olen Realty under the Florida Civil Rights Act for incidents arising out of her employment. The trial court granted summary judgment to Olen Properties on grounds that it was not her employer, and that the employer was Olen Realty. Cancel worked for Weston Place apartments as a leasing agent. Olen Realty had registered a fictitious name for Weston Place. Cancel, on the other hand, had documents and other evidence indicative that Olen Properties, in other contexts, had acknowledged being her employer.

The record reflects that Olen Properties has failed to conclusively prove the nonexistence of genuine issues of material fact on whether it was Cancel’s employer. Accordingly, we reverse and remand for further proceedings.

STONE, STEVENSON and HAZOURI, JJ., concur.


text:
    Robert DICKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3525.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2007.
    Jeffrey A. Siegmeister, Lake City, for Petitioner.
    Bill McCollum, Attorney General; Donna A. Gerace and Giselle Lylen Rivera, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

Having entered a plea and been sentenced on a charge of dealing in certain stolen property in Union County, Robert Franklin Dicks petitions this court for prohibition relief to preclude his continued prosecution in Columbia County on charges of grand theft of the same property. The state concedes that under Florida law, double jeopardy principles preclude a person from being convicted of both the theft of certain goods and dealing in the same stolen goods in connection with one scheme or course of conduct. See Hall v. State, 826 So.2d 268 (Fla.2002); Kilmartin v. State, 848 So.2d 1222 (Fla. 1st DCA 2003). The state also correctly acknowledges that because both the Union County and Columbia County charges relate to the same property, the use of “and/or” language to describe the property in the Union County information to which Dicks entered a plea does not operate to permit the continued prosecution of the theft charges relating to the same property in Columbia County. See Corvo v. State, 916 So.2d 44 (Fla. 3d DCA 2005).

Accordingly, the petition for writ of prohibition is GRANTED.

VAN NORTWICK, LEWIS, and THOMAS, JJ., concur.


text:
    Stevie T. STEVERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-437.
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 2007.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Grice v. State, 967 So.2d 957 (Fla. 1st DCA 2007).


text:
    Darris HOWARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5729.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2007.
    Darris Howard, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BROWNING, C.J., KAHN and ROBERTS, JJ., concur.


author: HAZOURI, J.

text:
    Laurence GRAHAM, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, and Catholic Charities of The Diocese of Palm Beach, Inc., Appellees.
    No. 4D07-996.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.
    Rehearing Denied Jan. 4, 2008.

      Joseph S. Shook of Law Office of Joseph S. Shook, Coral Gables, for appellant.

      Edward A. Shipe, Boca Raton, for appel-lee Luke Graham.
    Ronald E. Crescenzo of Casey Ciklin Lubitz Martens & O’Connell, West Palm Beach, for appellee Catholic Charities of the Diocese of Palm Beach, Inc.
   HAZOURI, J.

Appellant, Laurence J. Graham (Laurence Graham), appeals the following orders entered by the trial court: (1) Judgment of Guilt on Order to Show Cause Why Laurence Graham Should Not be Held in Contempt of Court; (2) Order Appointing Plenary Guardian of Person and Property Over Betty Pat Graham (Betty Graham)/Letters of Plenary Guardianship of Person and Property of Betty Pat Graham; and (3) Denial of Laurence Graham’s Motion for Continuance. Luke Graham, Laurence’s brother, is the only appellee who filed an answer brief in this case, in which appellee, Catholic Charities of the Diocese of Palm Beach, Inc. (Catholic Charities), joined. We reverse.

On November 8, 2005, the Department of Children and Families (DCF), filed a petition for appointment of plenary guardian, alleging that Betty Graham, Laurence and Luke Graham’s mother, was incapacitated by mental illness. The petition alleged that Betty, a 61-year old woman, was presently located in a psychiatric facility in Fair Oaks Pavilion on the campus of Delray Medical Center. The petition alleged further that Betty had over $500,000 of real estate assets and $350,000 in a Merrill Lynch account. DCF claimed that Laurence and Luke Graham were trying to hide Betty from one another and get her assets in their respective names. However, DCF determined that Luke is the son who most has Betty’s best interests in mind. Finally, the petition alleged that the situation is an emergency because DCF learned that the Merrill Lynch account was closed, and the money was suspected to be in Laurence’s name. Simultaneously, DCF filed a petition for appointment of emergency temporary guardian, raising the same allegations.

The trial court appointed Catholic Charities as Betty’s emergency temporary plenary guardian. Upon Catholic Charities’ petition following its discovery that $200,000.00 was transferred from Betty’s joint account with her son Laurence, made payable to “Laurence Graham ITF Betty Graham,” the trial court entered an order securing Betty’s assets, freezing her accounts, and directing Betty’s financial institutions and accountant(s) to provide information to Catholic Charities.

Shortly thereafter, Laurence Graham filed a petition for appointment as Betty’s guardian. Laurence alleged he was being denied access to Betty and was denied his right to exercise health care decisions for Betty in violation of a health care advance directive (“the Directive”) executed by Betty on July 22, 2006, designating Laurence as her health care surrogate. Catholic Charities filed a verified petition for an order compelling Laurence to disclose Betty’s location and show cause why he should not be held in contempt of court. The trial court granted the petition and entered an order accordingly. The order mandated that Laurence appear before the trial court on a date certain, to show cause why he should not be held in indirect criminal contempt of court. Laurence filed a response to the order to show cause, motion to dismiss order and request for statement of particulars, but did not appear before the trial court. Luke Graham filed a petition to be appointed as Betty’s permanent plenary guardian. The trial court granted the petition, appointing Luke Graham as temporary plenary guardian of Betty’s person and property.

Thereafter, Laurence filed an emergency motion for continuance of the hearing on the petition for appointment of a permanent guardian and motion for order for rule to show cause. His counsel claimed he did not have adequate time to prepare for the hearing because he had just been retained by Laurence Graham, and there was additional evidence necessary for the court to make a meaningful determination of the issues. The trial court denied the motion for continuance. After the hearing, the trial court denied the motion to dismiss and request for statement of particulars, and entered a judgment of guilt on the order to show cause why Laurence Graham should not be held in contempt of court. Specifically, the trial court stated:

As to the merits of the alleged contempt, the Court finds that Laurence Graham is in fact in violation of the Court’s Orders, voluntarily and freely, knowing at all times that he has been in violation, and having at all times the ability to comply with the Court’s Orders. The Court is convinced beyond a reasonable doubt, based on the record before it, that Laurence Graham is in contempt of Court as described in the Order to Show Cause, i.e., his participation in the removal and disappearance of Betty Pat Graham from this jurisdiction and his subsequent failure to immediately disclose her location, in violation of this Court’s Order Appointing Emergency Temporary Guardian (dated November 8, 2006) and the Letters of Emergency Temporary Guardianship (dated November 9, 2006), both of which delegated plenary emergency temporary guardianship powers to Catholic Charities of the Diocese of Palm Beach Inc.

The trial court scheduled sentencing, and ordered Laurence Graham to appear in person with Betty Graham at that time.

At the sentencing hearing, the trial court withheld sentencing for 90 days. The trial court encouraged the parties to determine what is best for Betty during that time and “revise these proceedings with the Court in its guardianship capacity rather than in its contempt capacity if necessary.” This appeal followed.

Laurence Graham argues first that the trial court erred in finding him guilty of indirect criminal contempt on two grounds: (1) the court failed to comply with the procedural requirements of Florida Rule of Criminal Procedure 3.840; and (2) there was no evidence that he violated a court order. Because we agree with the first ground, we do not reach the second.

Failure to strictly follow the dictates of Rule 3.840, governing indirect criminal contempt, constitutes fundamental, reversible error. Hagan v. State, 853 So.2d 595, 597 (Fla. 5th DCA 2003).

Laurence Graham argues that the trial court’s order is based upon a statement from Catholic Charities, which is not in affidavit form and was not issued upon personal knowledge, that he did not receive notice of the contempt proceedings, and that he was not properly served. Rule 3.840(a) provides:

The judge, on the judge’s own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.

Fla. R.Crim. P. 3.840(a). We reject without comment Laurence’s arguments concerning an insufficient affidavit and lack of notice, but agree with his contention that he was not properly served.

The order indicates that copies were furnished to Laurence and his attorney; however, this is insufficient service under Rule 3.840. In Giles v. Renew, 639 So.2d 701 (Fla. 2d DCA 1994), the Second District reversed an adjudication of guilt for indirect criminal contempt where the trial court and state did not strictly comply with Rule 3.840 in serving the appellant with the order to show cause. The court held: “Giles was entitled to have the order served upon him, not sent by facsimile to his attorney.” Giles, 639 So.2d at 702; see also Transp. & Gen. Ins. Co., Ltd. v. Receiverships of Ins. Exch. of the Ams., 576 So.2d 1351, 1352 (Fla. 1st DCA 1991) (concluding that the trial court erred in denying appellant’s motion to dismiss order to show cause in the absence of proper service of process). It is undisputed here that Laurence was not personally served with the order to show cause and thus, reversal is warranted. See Van Hare v. Van Hare, 870 So.2d 125, 127 (Fla. 4th DCA 2003) (reversing order of criminal contempt for lack of compliance with Rule 3.840).

Laurence Graham contends next that, in appointing Luke Graham as Betty’s temporary plenary guardian, the trial court effectively revoked Betty’s valid Directive, and did so without the necessary proof under section 765.105, Florida Statutes (2007), and without notice and a hearing, in violation of section 744.3115, Florida Statutes (2007). We agree in part.

“Statutory interpretation is a question of law subject to de novo review.” BellSouth Telecomm. Inc., v. Meeks, 863 So.2d 287, 289 (Fla.2003).

Section 744.3115, Florida Statutes (2007), governing advance directives for health care, states:

In each proceeding in which a guardian is appointed under this chapter, the court shall determine whether the ward, prior to incapacity, has executed any valid advance directive under chapter 765. If any advance directive exists, the court shall specify in its order and letters of guardianship what authority, if any, the guardian shall exercise over the surrogate. Pursuant to the grounds listed in s. 765.105, the court, upon its own motion, may, with notice to the surrogate and any other appropriate parties, modify or revoke the authority of the surrogate to make health care decisions for the ward. For purposes of this section, the term “health care decision” has the same meaning as in s. 765.101.

In appointing Luke Graham as Betty’s temporary plenary guardian, an act which effectively revoked her Directive, the trial court failed to comply with the requirements of section 744.3115. The court failed to determine whether the Directive was valid before appointing a guardian. When the trial court appointed Catholic Charities as Betty’s emergency temporary guardian, it accepted the Directive as valid, when it stated in its order: “The guardian shall not exercise any authority over any health care surrogate appointed by any valid advance directive executed by the Ward pursuant to Chapter 765, Florida Statutes, nor designate a health care surrogate pursuant to Chapter 765, Florida Statutes, except upon further order of this Court.” However, when the trial court issued its letters of plenary guardianship appointing Luke as' Betty’s temporary guardian, it stated that Luke’s authority under the letters “shall exist irrespective of any valid advanced [sic] directive executed by the Ward under Chapter 765 of the Florida Statutes.” These letters essentially revoked Betty’s Directive without expressing which grounds supported revocation and absent evidence of any of the grounds set forth in section 765.105. See § 744.3115, Fla. Stat. (2007).

We reject Laurence Graham’s claim that he did not receive proper notice, as the letters were provided to Laurence’s attorney, and there is no authority for the proposition that any specific form of notice was required.

Luke Graham argues in response that this court should interpret section 744.331(6)(b), Florida Statutes (2007), as mandating that “[a] person possessing a health care surrogate has the burden to come forward, present that instrument to the court, and permit the parties and the court to address the issue of the instrument’s validity.” Section 744.331(6)(b) provides:

When an order determines that a person is incapable ' of exercising delegable rights, the court must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. A guardian must be appointed to exercise the incapacitated person’s delegable rights unless the court finds there is an alternative. A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person.

§ 744.331(6)(b), Fla. Stat. (2007). Nothing in this section places the burden on a health care surrogate to come forward with the instrument to prove its validity, and Luke Graham asserts no authority to that effect. Moreover, section 765.202(7), Florida Statutes (2007), provides: “A written designation of a health care surrogate executed pursuant to this section establishes a rebuttable presumption of clear and convincing evidence of the principal’s designation of the surrogate.” Luke Graham does not argue that the Directive was not executed properly pursuant to section 765.202 and there is no evidence of such. The Directive, as it appears in the record, complies with the dictates of section 765.202, and thus it “establishes a rebutta-ble presumption of clear and convincing evidence” of Betty’s intent to designate Laurence as her health care surrogate. Accordingly, no authority mandates that Laurence come forward and establish the validity of the Directive.

Therefore, we reverse and remand on this issue for a determination by the trial court of whether Betty’s Directive is valid, and if so, what grounds under section 765.105 require its revocation.

After finding Laurence in contempt, the trial court found that Betty’s incapacity was established and appointed Luke Graham as her temporary plenary guardian. Laurence claims the trial court erred in doing so without sufficient evidence of Betty’s incapacity pursuant to section 744.331, Florida Statutes. We agree.

A trial court’s ruling on mental capacity cannot be disturbed “unless the evidence shows it is clearly erroneous.” Fleming v. Fleming, 352 So.2d 895, 898 (Fla. 1st DCA 1977) (citing Waterman v. Higgins, 28 Fla. 660, 10 So. 97 (1891)). “In the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence.” § 744.331(5)(c), Fla. Stat. (2007). Further, section 744.331(5)(a), Florida Statutes (2007), states:

Upon appointment of the examining committee, the court shall set the date upon which the petition will be heard. The date for the adjudicatory hearing must be set no more than 14 days after the filing of the reports of the examining committee members, unless good cause is shown. The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process.

Laurence Graham relies on LeWinter v. Guardianship of LeWinter, 606 So.2d 387 (Fla. 3d DCA 1992), which is analogous to the instant case. In LeWinter, the Second District reversed a finding of incapacity and the appointment of a guardian, concluding that there was no competent evidence to support the order. The court found that although the report of the examining committee established under section 744.331(3)(a) contained findings that the ward lacked the capacity to perform the functions that served the basis for the guardianship, it was filed over six weeks before the hearing, and there was evidence that the ward’s condition had improved in the meantime. LeWinter, 606 So.2d at 388.

Similarly, in the instant case, two of the three examining committee reports were filed two months or more before the hearing. The hearing took place on February 8, 2007. One report was filed on November 21, 2006, and another on December 8, 2006. Further, Laurence Graham submitted a sworn affidavit dated January 20, 2007, from Dr. Clyde Rouse Jr., who was Betty’s previous psychiatrist for 2 years, and again evaluated her in January 2007, stating that Betty’s condition had improved. Dr. Rouse claimed, inter alia: “She looks very well and shows no evidence of any psychiatric symptoms. She reviewed her health care advance directive with me and verbally acknowledged that she had named her son Larry as her surrogate in that document.” He also stated that her condition improved due to medication and in his opinion she “is perfectly competent to make financial decisions, to execute any legal documents such as power of attorney, health care advance directives, etc.” Notably, a report by Dr. David Trader, board certified in general psychiatry and geriatric psychiatry, dated February 14, 2007, a few days after-the hearing in question, indicated that “[t]he present examination suggests that Betty Graham has sufficient mental capacity to make financial, medical, testamentary and general personal decisions at this time.”

Because Dr. Rouse’s report indicated an improvement in Betty’s condition and the committee member reports were filed two months prior to the hearing, the record evidence failed to establish Betty’s incapacity by clear and convincing evidence. Thus, we reverse -and remand with directions to dismiss the guardianship proceeding. See LeWinter, 606 So.2d at 388.

We need not reach Laurence’s argument that the trial court erred in denying his motion to continue, as this argument is moot in light of the foregoing.

Reversed and Remanded with Directions.

STONE and STEVENSON, JJ., concur.

      . Sheridan Weissenborn (Weissenborn), Betty Graham’s attorney, previously filed a petition for writ of certiorari in this court, attempting to seek review of the lower court’s denial of a motion to discharge an emergency, temporary guardian and to dismiss the guardianship proceedings, but the petition actually sought review of the trial court’s denial of Weissen-born’s ore terms request to substitute counsel. See Weissenborn v. Graham, 963 So.2d 275, 276 (Fla. 4th DCA 2007). The trial court had found that Weissenborn had no standing to bring motions on behalf of Betty Graham. Id. This court denied the petition, but Weissen-born filed for rehearing, arguing that the guardianship proceedings pending below violated Betty Graham's right to due process of law. Id. This court denied rehearing on the basis that Weissenborn was not properly substituted as counsel and was actually working on behalf of Laurence Graham, and thus, was not permitted to represent Betty Graham. Id. Although this court denied rehearing, it wrote to address Weissenborn’s claim that Florida's continued exercise of jurisdiction in the case violates due process because Betty Graham is living in California. It concluded that “[Laurence’s] improper act of subsequently removing Betty from Florida to a 'secret location' cannot divest the Florida court of jurisdiction.” Weissenborn, 963 So.2d at 279.


text:
    Mathew J. MIGDAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3210.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.
    Rehearing Denied Jan. 4, 2008.

      Carey Haughwout, Public Defender,.and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

In this belated appeal from his conviction and sentence, appellant claims that,his sentence violates double jeopardy. The court sentenced the appellant to six concurrent five-year terms for four counts of grand theft and other charges, and one term of fifteen years for grand theft from a person sixty-five years of age or older. After sentencing, the court determined that the grand theft from a person over sixty-five years was a third-degree felony, and thus the fifteen-year sentence was illegal. As one of the grand theft charges for which a five-year sentence was imposed was actually a second-degree felony, the court “corrected” the sentence by imposing a fifteen-year sentence on that charge. In doing so, the court violated the double jeopardy provision of the constitution. We reverse.

Migdal was charged by information with numerous counts in six separate cases and was further charged with violation of probation in another case. One of the charges in the information alleged in its title a charge of grand theft from a person sixty-five years of age or older in an amount in excess of $10,000, which is a second-degree felony. See § 812.0145(2)(b), Fla. Stat. In the body of the information, however, the state alleged that he had taken an amount of $300 or more, an amount which would indicate a third-degree felony. See § 812.0145(2)(c), Fla. Stat. However, rather than citing this subsection, the body of the information cited 812.0145(2)(b).

Migdal entered an open plea of guilty to some of the charges, and the state nolle prossed the remaining charges. Specifically, Migdal pled guilty to violation of probation with an underlying charge of grand theft (case no. 99-12529), two counts of obtaining property in return for a worthless check (case no. 02-12347), three counts of grand theft (case nos. 03-5300, 03-5302, 03-5303), one count of grand theft from a person sixty-five years of age or older (case no. 03-5301), and one count of grand theft over $20,000 (case no. 03-9145). The negotiated settlement listed case no. 03-5301 as a third-degree felony. At the plea hearing, the court explained to Migdal that each of the counts carried a five-year sentence, except for case no. OS-9145, which carried a fifteen-year sentence. The maximum sentence for all charges would be fifty years.

A presentence investigation report was prepared. In it, both case no. 03-9145 for grand theft over $20,000 and case no. 03-5301 for grand theft from a person sixty-five years of age or older, were listed as second-degree felonies, the latter being listed as a violation of section 812.0145(2)(b). At the sentencing hearing, the court expressed greatest concern for the grand theft from a person over sixty-five years. The court characterized Mig-dal as a “predator” of older people. “He has come into these homes, he has charmed these people who I think probably are more receptive to someone with this kind of personality, and he charmed them and made them vulnerable, they were vulnerable, and took their money and their savings, and that’s a bad crime.... ” The court pronounced a fifteen-year sentence as to case no. 03-5301 and sentences of five years for each of the other charges. The state attorney requested clarification as to case no. 03-9145, the charge of grand theft in excess of $20,000, noting that it was a second-degree felony. The court then stated:

I’ll tell you, that is — it’s not the $20,000.00 that I’m so concerned with, although that is a significant amount of money. It’s still to me a Grand Theft and it just has to do with amounts. The one that I am concerned about with most of all, and the one for which I am sentencing him to fifteen years is the Grand Theft of Persons 65 Years or Older, the second degree felony there. So on that 03-9145, the Court will still sentence him only to five years there.

The court ordered all of the sentences to run concurrently. Thus, Migdal would serve fifteen years in prison.

Seven days after the sentence the court issued an Agreed Order Clarifying Sentence, stating:

THIS CAUSE, having come before the Court pursuant to an agreement between the State of Florida, by and through Assistant State Attorney Frank Castor, and Allen Geesey, Attorney for the Defendant, the Court hereby ORDERS AND ADJUDGES that the Defendant’s Sentence be clarified as follows:
1. In case number 03-005301CF A02, the PSI mistakenly stated that the charge of Grand Theft From Person 65 Years of Age or Older is a 2nd degree felony. This charge is actually a 3rd degree felony. The Court hereby sentences the Defendant to 5 years DOC on this charge.
2. In case number 03-009145CF A02, the Defendant plead [sic] guilty to the charge of Grand Theft Over $20,000, a 2nd degree felony. The victims in this case are Evelyn Rosenfield (age 86), who testified at the sentencing hearing, and Matthew Rosenfield (age 89). The Defendant stole $27,228.00 from the Rosen-fields. The Court hereby sentences the Defendant to 15 years DOC on this charge.
3. The sentences in the cases listed above shall run concurrent with each other and concurrent with the sentences on all other active cases being served.

Despite the order being “agreed,” Migdal was not consulted as to this change. No appeal was taken at the time from the judgment and sentence.

Eight months later, Migdal, pro se, filed a Motion to Vacate Plea or Set Aside or Correct Sentence pursuant to rule 3.800. Migdal alleged that he was sentenced to five years in prison and that the sentence was later changed in open court to fifteen years without his permission, knowledge, consent, or presence. Migdal requested that the original five-year sentence be reimposed.

A hearing was held before a successor judge due to the retirement of the original judge. The court orally denied the 3.800(a) motion, finding that the predecessor judge merely corrected a technical error. The court further observed that the correction resulted in no net increase in sentence. In accordance with its oral pronouncement, the court issued a written order entitled “Amended Order Denying Defendants Motion to Vacate Plea or Set Aside Sentence.” The court stated that the PSI had mistakenly stated that the charge of grand theft from a person sixty-five or older was a second-degree felony. The court also stated that the case numbers were transposed on the PSI and therefore the judge clarified a technical error in the Agreed Order Clarifying Sentence. Mig-dal appealed this order, which this court treated as an appeal of a motion for post-conviction relief pursuant to rule 3.850 and affirmed without opinion.

Migdal then filed a petition for belated appeal of his original sentence as amended, which this court granted. During the appeal, Migdal filed a motion to correct his sentence pursuant to rule 3.800(b)(2). He asserted that the improper increase of his original five-year sentence in case 03-9145 to a fifteen-year sentence was a violation of double jeopardy. Once the. five-year sentence was imposed in open court and Migdal commenced serving the sentence, it could not be increased without violating double jeopardy. The trial court denied the motion, and this issue is included in his appeal.

The issue of the illegality of the sentence was preserved by the filing of a timely 3.800(b) motion to correct sentence error. See Yisrael v. State, 938 So.2d 546, 547 n. 1 (Fla. 4th DCA 2006); Drayton v. State, 791 So.2d 522, 524 (Fla. 4th DCA 2001). As it involves a question of law, we review it de novo. Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005).

A court’s pronouncement of a sentence becomes final when the sentencing hearing ends. Comtois v. State, 891. So.2d 1130, 1131 (Fla. 5th DCA 2005); Troupe v. Rowe, 283 So.2d 857, 858 (Fla.1973). “Once a sentence has been imposed and the person begins to serve the sentence, that sentence.may not be increased without running afoul of double jeopardy principles.” Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003). That is not to say, however, that once a sentence is orally pronounced, it is forever etched in stone. “Florida has long recognized a court’s inherent power to correct clerical errors.” Drumwright v. State, 572 So.2d 1029, 1031 (Fla. 5th DCA 1991). “A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet....” Fla. R.Crim. P. 3.800(a).

Migdal’s sentence became final when the sentence was pronounced and the sentencing hearing ended. Comtois, 891 So.2d at 1131; Troupe, 283 So.2d at 858. Because he pled to a third-degree felony for the grand theft from a person age sixty-five years of age or older, the fifteen-year sentence the court imposed exceeded the statutory maximum and was illegal. The five-year sentence for grand theft in excess of $20,000 was a legal sentence, being within the statutory maximum for a second-degree felony. After he commenced serving the sentence, it could not be increased without violating double jeopardy principles. Ashley, 850 So.2d at 1267.

We reject the state’s contention that this was a clerical error, which could be corrected without violating double jeopardy. “Generally, the oral pronouncement prevails [over the written sentence] unless the oral pronouncement is in error due to a clerical error such as the calculation of jail credit.” Id. at 1268. A scrivener’s error refers to “clerical or ministerial errors in a criminal case that occur in the written sentence, judgment, or order of probation or restitution,” i.e., “a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record, but not those errors that are the result of judicial determination or error.” Id. at 1268 n. 3.

Here, the written sentence was not at variance with the oral pronouncement. In fact, the court explicitly found that it would not sentence the second-degree felony for the fifteen years. It is true that the court made a mistake. Migdal had pled to a third-degree felony of grand theft from a person over sixty-five, but the PSI listed the charge as a second-degree felony, thus misleading the court. However, the court was not misled as to the second-degree felony of grand theft over $20,000 and could have sentenced Migdal to fifteen years for that felony but specifically elected not to do so.

The state cites to Grage v. State, 717 So.2d 547 (Fla. 5th DCA 1998), for support. Grage, however, involved an appeal of the denial of a motion for postconviction relief. In that case, Grage was sentenced to time served in one case and to ten years as a habitual felony offender in the second case. The state filed a motion to correct the sentences when it realized that the trial court had transposed the case numbers. The trial court conducted a hearing, and Grage’s counsel consented to correction of the court’s error in Grage’s presence. Accordingly, the trial court amended the sentence. Several months later, Grage filed an amended motion for correction of illegal sentence, asserting that the sentence correction violated double jeopardy. The' lower court denied the motion, and the appeal was dismissed for failure to prosecute. Subsequently, Grage attempted to raise this claim in a rule 3.850 motion. The Fifth District held that even if the claim was not procedurally barred,

this was the correction of a technical error that resulted in no net increase in the sentence to the appellant. The sentence received was consistent with Grage’s plea agreement. The correction was expressly agreed to by counsel for appellant in appellant’s presence, and the court and the state acted in reliance on that agreement in changing the sentence in both this case and the companion case.

Id. at 548. Unlike Grage, not only does it appear that Migdal was not present when the court “corrected” the sentence, this is not a mere correction of a technical error. The numbers were not transposed in the PSI. Instead, the PSI listed the wrong charge in case no. 03-5301 and thus the wrong maximum sentence. The court intended to impose a fifteen-year sentence for Migdal’s conduct in stealing from elderly people, but it did not intend to impose a fifteen-year sentence in case no. 03-9145 simply based upon the greater amount stolen.

This was undoubtedly a simple mistake on the part of the trial judge, but this does not permit a trial court to increase a sentence and violate double jeopardy principles. In Ashley, where the trial court sentenced the defendant as a habitual felony offender and subsequently brought the defendant back to resentence him as a habitual violent felony offender, the supreme court found that such a correction of a mistake violated double jeopardy. It said:

We recognize that the trial court’s failure to state during its oral pronouncement of sentence that it was sentencing Ashley as a habitual violent felony offender may have been a simple mistake. However, based on the prior precedent from this Court, we must approve the Fourth District’s opinion in Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996) ] and disapprove the First District’s decision in Ashley [v. State, 772 So.2d 42 (Fla. 1st DCA 2000) ], because the oral pronouncement of sentencing controls. To hold otherwise does serious harm to the double jeopardy principles which have guided our courts for centuries.

850 So.2d at 1268-69. The same may be said of the sentence imposed upon Migdal in this case.

We therefore reverse and remand for resentencing. As Migdal has appealed his original sentencing, on resentencing the court is bound by the principles of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969), as we have interpreted it with respect to consecutive or concurrent sentencing. See Norton v. State, 731 So.2d 762 (Fla. 4th DCA 1999).

SHAHOOD, C.J., and STEVENSON, J., concur.


text:
    Reggie SMITH, Appellant, v. Stephen H. SHELTON and Thomas M. Shelton, Appellees.
    No. 4D06-4588.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.
    Rehearing Denied Jan. 14, 2008.
    H.T. Maloney and Heather Trailer of Patterson & Maloney, Fort Lauderdale, for appellant.
    Charles M. Kramer and Romney C. Rogers of Rogers, Morris & Ziegler LLP, Fort Lauderdale, for appellees.
   WARNER, J.

We affirm the trial court’s final summary judgment in favor of appellees on appellant’s claim of breach of contract. Appellant, an employee of several corporations owned by appellees, sued on a contract which allegedly entitled appellant to 10% of the net proceeds generated on ap-pellees’ sale of their business. Appellees claimed that this obligation was released by a termination of employment agreement signed by appellees. We agree that the termination agreement released the prior obligation.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Here, the issue was one of contract interpretation. “The interpretation or construction of a contract that is clear and unambiguous is a matter of law that is reviewed de novo.”. Lipton v. First Union Nat’l Bank, 944 So.2d 1256, 1258 (Fla. 4th DCA 2007) (quoting Caulkins Indiantown Citrus Co. v. Nevins Fruit Co., 831 So.2d 727, 735 (Fla. 4th DCA 2002)). Whether an ambiguity exists in a contract also is a question of law. Torwest, Inc. v. Killilea, 942 So.2d 1019, 1020 (Fla. 4th DCA 2006); N. Star Beauty Salon, Inc. v. Artzt, 821 So.2d 356, 358 (Fla. 4th DCA 2002). Where the wording of an agreement is ambiguous, its interpretation involves questions of fact, precluding summary disposition. Barone v. Rogers, 930 So.2d 761, 764 (Fla. 4th DCA 2006). “Whether a document is ambiguous depends upon whether it is reasonably susceptible to more than one interpretation. However, a true ambiguity does not exist merely because a document can possibly be interpreted in more than one manner.” Lambert v. Berkley S. Condo. Ass’n, 680 So.2d 588, 590 (Fla. 4th DCA 1996) (citation omitted).

The termination of employment agreement unambiguously stated that its purpose was to settle all of the rights, obligations, and liabilities between all of the parties, which specifically included the appellee Sheltons. By the terms of the agreement, appellant Smith released his employer (three corporations owned by the Sheltons) and its officers, which included the Sheltons, from any claims which Smith may have related to his employment. Under the . agreement, Smith received $350,000 “in return for Employee’s release of any rights, title, interest or claim ... to any stock in any company which [Thomas and Stephen Shelton] either have now or may have in the future, including but not limited to stock or equity interest in Employer.” (emphasis supplied). The earlier agreement on which Smith sued provided that Smith was to obtain a 10% interest in the profit generated on sale of the businesses, which were the “employer” under the termination agreement. We have no trouble in concluding that the termination agreement clearly and unambiguously released this interest, because it constituted, at the very least, an equity interest in the Sheltons’ corporations.

Affirmed.

KLEIN and GROSS, JJ., concur.

      . The agreement stated, in part: "WHEREAS, THOMAS M. SHELTON and STEPHEN H. SHELTON (hereinafter collectively referred to as 'Stockholders’) are each fifty percent (50%) stockholders of each of the above stated corporations; and WHEREAS, Stockholders join with Employer and Employee to collectively agree to settle all rights, obligations and liabilities between dll these parties .... ” (emphasis supplied).


author: KLEIN, J.

text:
    Dwayne FILLMORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1444.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.
    Dwayne Fillmore, Bowling Green, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Defendant appeals an order summarily denying his rule 3.800(a) motion to correct illegal sentence, contending that he should not have been given a mandatory minimum three years for possession of a firearm. We reverse.

Defendant was found guilty of second degree murder with a firearm as well as attempted second degree murder with a firearm, and received lengthy sentences with a three-year mandatory minimum for possession of a firearm. Although defendant’s direct appeal was affirmed without opinion in 1997, he could still benefit from elimination of the mandatory minimum as to gain time, because gain time does not accrue during the serving of a mandatory minimum sentence. § 775.087(2)(a); Young v. State, 638 So.2d 532 (Fla. 2d DCA 1994) (noting challenge to consecutive nature of mandatory minimum terms was not moot, though terms had been fully served, because of possible effect of gain time).

Defendant alleges that his three-year mandatory minimum was improper because the co-defendant was the shooter and defendant only drove the vehicle and did not possess a gun. With respect to each count, the verdict asked the jury, if it found defendant was guilty of that count, to determine “did he carry, display, threaten to use, or attempt to use a firearm during the commission of that crime?”. The jury checked “yes” as to each count. This language was taken from section 775.087(1), Florida Statutes, which provides for enhancement of the level of the felony.

Defendant’s argument is grounded on section 775.087(2), Florida Statutes (1993), which provides for the three-year mandatory minimum for a defendant convicted of offenses including murder and attempted murder who has “in his possession a firearm.” He alleges that he was found by the jury to have carried, displayed, etc. a firearm based only on the principal theory, which is not sufficient to impose a minimum mandatory sentence. McGill v. State, 878 So.2d 1270 (Fla. 5th DCA 2004) (reversing firearm minimum mandatory on direct appeal); Freeny v. State, 621 So.2d 505 (Fla. 5th DCA 1993).

The trial court summarily denied the motion on the authority of State v. Mancino, 705 So.2d 1379 (Fla.1998); however, Mancino is distinguishable from the present case. In Mancino the mandatory minimum for possession of a firearm was imposed on a sentence resulting from a plea, and the legality of that sentence could have been determined only after an evi-dentiary hearing, which was not available on Mancino’s rule 3.800(a) motion. In the present case, in which the sentences were imposed following a trial, defendant alleges that the trial transcript shows that it was undisputed that he did not possess a firearm. We accordingly reverse.

STONE and TAYLOR, JJ., concur.


text:
    Jonathan D. FROST, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4466.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 2007.
    Rehearing Denied Jan. 9, 2008.
    Jonathan D. Frost, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Gathers v. State, 798 So.2d 829 (Fla. 4th DCA 2001), approved, 838 So.2d 504 (Fla.2003).

SHAHOOD, C.J., GROSS and HAZOURI, JJ., concur.


author: STRINGER, Judge.

text:
    In re COMMITMENT OF Michael REILLY. Michael K. Reilly, Petitioner, v. State of Florida, Respondent.
    No. 2D07-2789.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 2007.

      Joseph Cerino, Fort Myers, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Yvette Acosta MacMillan, Assistant Attorney General, Tampa, for Respondent.
   STRINGER, Judge.

In this petition for writ of certiorari, Michael Reilly contends that the trial court departed from the essential requirements of the law when it found him incompetent to proceed based on his counsel’s stipulation to the findings of a competency evaluation that was over six months old. Because this stale report did not provide competent, substantial evidence as to Reilly’s present competence to proceed, we grant the petition.

From the extremely limited record before this court, it appears that Reilly was charged with resisting arrest with violence and battery on a law enforcement officer for events that occurred on October 26, 2004. These new charges apparently also triggered an affidavit of violation of probation in a separate case.

In August 2005, the trial court ordered a competency evaluation of Reilly. Pursuant to that order, Dr. Frederick Schaerf examined numerous records concerning Reilly’s history and behavior, but he never met with Reilly in person. In a report dated May 20, 2006, Dr. Schaerf declared Reilly incompetent to proceed. On October 25, 2006, Dr. Paul Kling met with Reilly and conducted an in-person competency examination. In a report dated October 31, 2006, Dr. Kling found Reilly incompetent to proceed.

On March 5, 2007, counsel for Reilly and counsel for the State stipulated to the “findings and the treatment recommendations of the October 25, 2006[sic] forensic competency evaluation provided to the Court by Dr. Paul S. Kling.” This stipulation was entered pursuant to section 916.12(2), Florida Statutes (2006), which permits the trial court to adjudicate a person incompetent if the parties stipulate to a finding of incompetence by one mental health expert. Subsequently, on May 4, 2007, the trial court held a hearing at which it accepted the parties’ stipulation, adjudicated Reilly incompetent, and committed him for treatment. Reilly was present at the hearing and objected to the stipulation and the finding of incompetence. Reilly now seeks review of this adjudication and commitment by petition for writ of certiorari.

As a general rule, certiorari is the proper vehicle for seeking this court’s review of orders committing an individual involuntarily. M.H. v. State, 901 So.2d 197, 198 (Fla. 4th DCA 2005); Mosher v. State, 876 So.2d 1230 (Fla. 1st DCA 2004); K.D. v. Dep’t of Juvenile Justice, 694 So.2d 817 (Fla. 4th DCA 1997). “[T]o obtain a writ of certiorari, there must exist ‘(1) a departure from - the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)). “Where competent, substantial evidence does not support the trial court’s finding regarding competency or involuntary commitment, the trial court has departed from the essential requirements of the law.” M.H., 901 So.2d at 200; see also Dep’t of Children & Families v. C.R.C., 867 So.2d 592 (Fla. 5th DCA 2004).

When considering whether a defendant is competent to proceed, the question for the trial court is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (emphasis added); see also Peede v. State, 955 So.2d 480, 488 (Fla.2007); Mora v. State, 814 So.2d 322, 327 (Fla.2002); Brockman v. State, 852 So.2d 330, 333 (Fla. 2d DCA 2003). Thus, the trial court’s focus must be on the defendant’s mental state at the time of the proceeding in question, not at some time in the past, and stale mental health reports will not support an adjudication of incompetency.

For example, in Brockman, the trial court based its competency determination on reports from two mental health experts who had examined Brockman four months and eleven months previously. 852 So.2d at 333. This court held that the reports were stale and could not support the trial court’s finding of incompetence because they did not speak to Brockman’s present competence to proceed. Id. Similarly, in LeWinter v. Guardianship of LeWinter, 606 So.2d 387, 388 (Fla. 3d DCA 1992), the court held that an examining committee’s report that was filed six weeks before the competency proceeding was not competent evidence of LeWinter’s present mental state and ability to care for himself.

In this case, the trial court based its May 4, 2007, determination that Reilly was incompetent on a report dated October 31, 2006. However, this six-month-old report did not, and could not, speak to Reilly’s present ability to consult with his lawyer with a reasonable degree of rational understanding or his present rational and factual understanding of the proceedings against him. Accordingly, it did not provide competent, substantial evidence to support the trial court’s finding that Reilly was presently incompetent to proceed. While we recognize that section 916.12(2) permits the trial court to adjudicate a defendant incompetent based on the stipulation of the parties to one mental health expert’s findings, we do not believe that section 916.12(2) permits the court to rely on a stipulation to an expert’s report that is so stale that it no longer speaks to the defendant’s present competence.

Because Dr. Kling’s report in this case was too stale to be relevant to Reilly’s present competence, the trial court departed from the essential requirements of the law in relying upon it despite the parties’ stipulation. Accordingly, we grant the petition and remand for further proceedings.

Petition granted; remanded for further proceedings.

WHATLEY and CASANUEYA, JJ., Concur.


text:
    AMICA MUTUAL INSURANCE COMPANY, Appellant/Cross-Appellee, v. Scott DRUMMOND and David Auslander, Appellees/Cross-Appellants.
    No. 2D06-5692.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 2007.

      Douglas M. Fraley of Molhem & Fraley, P.A., Tampa, for Appellant/Cross-Appel-lee.
    Mary E. Kestenbaum of Merlin Law Group, P.A., Tampa, for Appellees/Cross-Appellants.
   STRINGER, Judge.

AMICA Mutual Insurance Company (“AMICA”) seeks review of the final judgment, which declared that AMICA was obligated to pay insureds Scott Drummond and David Auslander Medical Payment benefits (“Med Pay benefits”) for treatment occurring prior to October 5, 2004. Drummond and Auslander cross-appeal the partial declaratory judgment in which the court determined that AMICA was not obligated to pay Med Pay benefits for treatment occurring after October 5, 2004. Because Drummond and Auslander refused to perform a condition precedent to AMICA’s duty to provide Med Pay benefits, AMICA was not obligated to pay any outstanding Med Pay benefits. Therefore, we reverse the final judgment and affirm the partial declaratory judgment.

Drummond was the driver of an AMICA insured automobile involved in an accident on June 11, 2004. Auslander was a passenger in that vehicle and had his own AMICA 'policy. Drummond sought Med Pay benefits under his policy, and Auslan-der sought Med Pay benefits under both policies.

AMICA sought to investigate the accident and injuries to both Drummond and Auslander. Drummond and Auslander, through their attorney, agreed to give sworn statements at their attorney’s office on July 23, 2004. However, Drummond and Auslander did not complete the sworn statements. AMICA then elected to exercise its right under the policies to require Drummond and Auslander to submit to Examinations Under Oath (“EUOs”).

By letters dated July 23, 2004, directed to Drummond and Auslander’s attorney, AMICA requested Drummond and Auslan-der appear for EUOs on August 3, 2004. The letters referenced “claims arising from the June 11, 2004 accident including PIP and UM claims.” Drummond and Auslander’s attorney agreed to present his clients for the EUOs, but informed AMI-CA he had a scheduling conflict. The attorneys rescheduled the EUOs for August 26, 2004. On August 25, 2004, Drum-mond and Auslander’s attorney advised AMICA by letter that his clients would not appear for their scheduled EUOs because they were not pursuing a UM claim and there was no requirement for EUOs for PIP claims. Drummond and Auslander did not appear for EUOs on August 26, 2004. By this time, Auslander had exhausted the Med Pay benefits under his policy; he proceeded with his claim for benefits under Drummond’s policy.

On September 17, 2004, AMICA sent counsel for Drummond and Auslander a letter for each insured scheduling EUOs on October 5 and stating, “Please be advised that due to your client’s failure to attend his previously scheduled EUO any Med Pay benefits due for treatment occurring after August 26, 2004 will be suspended until he attends the above-requested EUO.” On September 29, 2004, AMICA’s claims department sent Drummond and Auslander a letter confirming the suspension of their benefits. On October 4, 2004, counsel for Drummond and Auslander informed AMICA that they would not appear for the EUOs. To date, neither Drummond nor Auslander has appeared for an EUO to give testimony regarding the accident.

On November 5, 2004, AMICA filed a complaint for declaratory judgment regarding whether Drummond and Auslan-der’s failure to submit to EUOs relieved AMICA of its duty to pay outstanding Med Pay benefits. The trial court subsequently entered a partial declaratory judgment, finding that AMICA was not obligated to pay Drummond and Auslander Med Pay benefits for treatment occurring after October 5, 2004, due to Drummond and Aus-lander’s failure to appear for the October 5 EUOs. The trial court made the following findings on the record:

[T]he court does find that the Defendants, Scott Drummond and David Aus-lander, are not entitled to the medical payments benefit under the policy based upon their refusal to submit to the Examination Under Oath as required by the policy, and not withstanding the fact that initially there was some confusion regarding PIP coverage and/or UM claims. But even after that confusion was dispelled by subsequent letters from Arnica’s counsel making Defendant’s aware that the EUO was requested pursuant to the medical payment benefit provision of the policy, and they were given an opportunity to appear in October, it was communicated to Arnica that, indeed, they would not be appearing for that.

The court thereafter entered a final judgment on the remaining declaratory judgment issues, finding that AMICA was obligated to pay Med Pay benefits for treatment occurring prior to October 5, 2004.

On direct appeal of the final judgment, AMICA argues that the trial court erred in ruling that it was required to pay Med Pay benefits for treatment occurring prior to October 5, 2004. AMICA argues that Drummond and Auslander materially breached the insurance contract by failing to appear for the October EUOs. Therefore, AMICA argues that it was within its rights in refusing to pay Med Pay benefits for treatment- occurring after August 26, 2004.

Because this case involves a question of contract interpretation, our review is conducted de novo. Am. Strategic Ins. Co. v. Lucas-Solomon, 927 So.2d 184, 186 (Fla. 2d DCA 2006). There is no dispute that Drummond and Auslander had a duty to submit to EUOs under the insurance policies. The question is whether Drummond and Auslander’s failure to appear for the scheduled EUOs relieved AMICA of its duty to provide Med Pay benefits coverage prior to the date the trial court found the breach occurred,' which was October 5, 2004.

“An insured’s refusal to comply with a demand for an examination under oath is a willful and material breach of an insurance contract which precludes the insured from recovery under the policy.” Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 303 (Fla. 4th DCA 1995); accord S. Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922, 932 (1909); Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145, 146 (Fla. 3d DCA 1993). The policy at issue in Goldman provided that “ ‘no action shall be brought unless there has been compliance with the policy provisions.’ ” 660 So.2d at 301. The dispositive issue was whether the provision requiring submission to an EUO constituted a condition precedent, which must be performed to trigger the insured’s rights under the policy, or a condition subsequént. Id. at 303 n. 5. The Fourth District decided that the provision constituted a condition precedent and held that the trial court did not err in granting summary judgment in favor of the insurer based on the insured’s failure to submit to an EUO. Id. at 306. Thus, the insured was foreclosed from bringing suit against the insurer to compel the insurer to pay benefits under the policy. See also Nationwide Ins. Co. v. Nilsen, 745 So.2d 264, 267 (Ala.1998) (“Nil-sen’s policy required him to submit to an examination under oath in order to recover under the contract. Therefore, in order to recover on his claim alleging breach of contract, Nilsen was required to first comply with the condition precedent that he submit to an examination under oath as reasonably required by Nationwide.”).

In this case, the insurance policy contains an express provision stating that AMICA has “no duty to provide coverage ... unless there has been full compliance” with the EUO requirement. The policy provides, in pertinent part, as follows:

PART E — DUTIES AFTER AN ACCIDENT OR LOSS
We have no duty to provide coverage under, this policy unless there has been full compliance with ■the following duties:
A. We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses.
B. A person seeking any coverage must:
1. Cooperate with us in the investigation, settlement or defense of any claim or suit.
2. Promptly send us copies of any notices or legal papers received in connection with the accident or loss.
3. Submit, as often as we reasonably require:
a. To physical exams by physicians • we select. We will pay for these exams.
b. To examination under oath and subscribe the same.

(Emphasis added.)

Thus, Drummond and Auslander’s failure to submit to the EUOs was a material breach of a condition precedent to AMI-CA’s duty to provide coverage under the policy. Because the condition precedent was never met, AMICA was within its rights in refusing to pay Med Pay benefits for treatment occurring after August 26, 2004. Therefore, the trial court erred in determining that AMICA was obligated to pay Drummond and Auslander Med Pay benefits for treatment occurring prior to October 5, 2004.

Drummond and Auslander argue that AMICA has waived any denial of benefits prior to the October 5, 2004, breach by paying some benefits before it requested the EUOs. As AMICA argues in reply, Drummond and Auslander did not raise this waiver issue in their pleadings or in the trial court below. Therefore, the issue is not preserved for our review. See Louie’s Oyster, Inc. v. Villaggio Di Las Olas, Inc., 915 So.2d 220, 223 (Fla. 4th DCA 2005).

On cross-appeal, Drummond and Auslander argue that AMICA breached the contract first by suspending their benefits on September 29, 2004. AMICA argues that it did not breach any contractual provisions by suspending benefits until Drummond and Auslander submitted to the EUOs as requested. AMICA’s argument is correct for three reasons.

First, the insurance policy does not provide any time certain for AMICA to investigate Med Pay claims or provide Med Pay benefits. Second, AMICA did not state that it was refusing to pay Med Pay benefits, but that it was suspending benefits until Drummond and Auslander submitted to EUOs. See Nilsen, 745 So.2d at 268 (rejecting argument that insurer breached by informing insured that it would not make any more payments under the policy until the insured complied with his duty to supply expense receipts so the claim could be investigated). Third, as set forth previously, the submission to EUOs was a condition precedent to AMICA’s duty to provide coverage.

Because Drummond and Auslander refused to perform a condition precedent to AMICA’s duty to provide coverage, AMI-CA had no duty to provide Med Pay benefits for any claims pending on the insurance policy. Accordingly, the trial court erred in determining that AMICA had a duty to pay Med Pay benefits as set forth in the final judgment but did not err in determining that AMICA had no duty to pay benefits as set forth in the partial declaratory judgment. We reverse the final judgment and affirm the partial declaratory judgment. We remand with directions for the court to enter . final judgment in favor of AMICA.

Affirmed in part; reversed in part; and remanded.

ALTENBERND, J., and BAILEY, JENNIFER D., Associate Judge, Concur.


author: THOMAS, J.

text:
    Haywood L. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4500.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2007.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; Thomas D. Winokur and Edward C. Hill, Jr., Assistant Attorneys General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals his conviction for resisting an officer without violence, arguing that the trial court committed fundamental error by failing to sua sponte clarify the standard jury instruction given on resisting arrest without violence and also' by failing to instruct the jury regarding the justifiable use of force. Because we find that any errors are unpreserved and do not constitute fundamental error, we affirm Appellant’s conviction. We write only to address Appellant’s initial argument.

At trial, Appellant argued that he did not know he was being arrested, therefore, he could not have resisted arrest. The trial court instructed the jurors, stating:

In count 2, to prove the crime of resisting an officer with violence, the State must prove the following elements beyond a reasonable doubt. One, Haywood L. Thomas knowingly and willfully resisted, obstructed or opposed William R. Brown, Travis Knight and/or Brandon Cutcliffe by offering to do violence to them or doing violence to them. Two, at the time William R. Brown, Travis Knight and/or Brandon Cutcliffe were engaged in the lawful execution of a legal duty. Three, at the time William R. Brown, Travis Knight and/or Brandon Cutcliffe were officers.
I now instruct you that every Leon County sheriffs deputy is an officer within the meaning of this law. I further instruct you that effecting an arrest constitutes a lawful execution of a legal duty.

The court also instructed the jury on the lesser-included offense of resisting an officer without violence, again stating, “I further instruct you that effecting an arrest constitutes lawful execution' of á legal duty.” Appellant did not request any special instructions and made no objection to the instructions as read. The jury found Appellant guilty of the lesser-included offense of resisting an officer without violence.

We find that the court properly instructed the jury with the standard generic instruction on resisting an officer with and without violence. See State v. Anderson, 639 So.2d 609 (Fla.1994) (holding that the standard instruction is proper and distinguishing it from an improper case-specific instruction which takes the issue of the lawfulness of the arrest from the jury). As the supreme court explained,

in those cases where the defendant maintains that the arrest was unlawful and requests that the jury be instructed on that defense, an instruction should be given to insure that the jury understands that it must decide the issue. Although no such instruction was requested here, the addition of the word “lawful” to the standard instruction served to clarify that the legality of the arrest was an issue for the jury and certainly did not affect the defense’s ability to argue that the arrest was unlawful.

Id. at 610-11.

Because the lawfulness of his arrest was in dispute, had Appellant asked the court to either modify the standard instruction or give the same instruction as in Anderson, stating that “effecting a lawful arrest constitutes lawful execution of a legal duty,” id. at 609, and the trial court refused, it would have committed reversible error. See Hampton v. State, 733 So.2d 1137 (Fla. 4th DCA 1999) (reversing the appellant’s conviction for resisting arrest because the court erred in denying the appellant’s request for a special jury instruction); Bratcher v. State, 727 So.2d 1114, 1117 (Fla. 5th DCA 1999) (same); Brannen v. State, 453 So.2d 428, 429 (Fla. 1st DCA 1984) (same).

Appellant never asked the trial court to give a special jury instruction, however, and made no objection to the instructions as read; therefore, the issue is not preserved for review. See State v. Delva, 575 So.2d 643, 644 (Fla.1991) (explaining that jury instructions are subject to the contemporaneous objection rule and will not be considered on appeal unless a timely objection was made below or the error constitutes fundamental error). Our sister courts have also concluded that an erroneous instruction regarding the resisting arrest instruction does not constitute fundamental error. See Kyle v. State, 650 So.2d 127, 128 (Fla. 4th DCA 1995) (reversing appellant’s conviction for resisting arrest without violence on other grounds, but noting that while the trial court erred in giving a case-specific instruction rather than the generic instruction approved of in Anderson, appellant did not preserve the issue because he failed to object to the erroneous instruction); see also; McBride v. State, 604 So.2d 1291,1292 (Fla. 3d DCA 1992) (holding that trial court did not err by giving standard instruction, noting that appellant did not object and appears to have agreed to substance of instruction given). In addition, the supreme court noted in Anderson that the appellant failed to preserve the issue, and addressed it only to resolve conflict. 639 So.2d at 610. We agree with these cases that a contemporaneous objection was required to preserve any objection to the trial court’s failure to specify that the lawfulness of Appellant’s arrest was an issue for the jury’s determination. Thus, we affirm Appellant’s conviction.

AFFIRMED.

VAN NORTWICK and LEWIS, JJ., concur.

      . Fla. Std. Jury Instr. (Crim.) 21.2 (2004).