text:
    Michael H. WEISSER, Appellant, v. PNC BANK, N.A., Appellee.
    No. 3D07-487.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.

      Coffey Burlington and Daniel F. Blon-sky, Miami, for appellant.
    Shutts & Bowen and Don A. Lynn, and Stephen T. Maher, Miami, for appellee.
    Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The plaintiff, Michael H. Weisser (“Weisser” or “Applicant”), appeals an order granting the defendant’s, PNC Bank, N.A. (“PNC Bank” or “Lender”), motion to dismiss for improper venue. We affirm.

On March 30, 2004, Weisser executed a PNC Bank “Loan Application” (“Application”), dated March 18, 2004, seeking a $22 million loan. The Application contains the following forum selection clause:

30. Choice of Lem; Jurisdiction; Business Day. The Application and any Commitment issued by Lender will be governed by the local laws of the State of Kansas applied without regard to any conflict of law provisions. The parties further consent to the exclusive jurisdiction of either the United States District Court for the District of Kansas or the District Court of Johnson County, Kansas, for the judicial resolution of any disputes arising under, or in anyway related to, the Application and Commitment....

(emphasis added).

After executing the Application, Weisser executed an “Interest Rate Lock Agreement” (“Rate Agreement”), which provides, in part, as follows:

5. Compliance with Commitment. Applicant acknowledges that nothing in this Agreement shall modify the terms of the Commitment, affect Applicant’s obligation to close the Loan in accordance with the Commitment or otherwise relieve Applicant from its duties and obligations under the Commitment. ...
6. Applicable Law; Business Day. This Agreement will be governed by the local laws of the State of Missouri applied without regard to any conflict of law provisions. The parties further consent to the exclusive jurisdiction of either the United States District Court for the Western District of Missouri or the Circuit Court of Jackson County, Missouri, for the judicial resolution of any disputes arising under, or in anyway related to, this Agreement....

(emphasis added). Moreover, the Rate Agreement defines “Commitment” as follows:

Collectively the Application and a Rider to the Application (the “Rider”) issued by Lender and accepted by Applicant pursuant to which Lender agrees to make the Loan to Applicant on the terms and subject to conditions set forth in the Application and Rider. All references herein to the Commitment shall be applicable only to the extent the Application and Rider have both been issued and accepted by Lender and Applicant.

Thereafter, on August 20, 2004, PNC Bank executed a “Rider to Loan Application,” which provides, in part, as follows:

We are pleased to confirm by this Rider to Loan Application (the “Rider”) that PNC Bank, a National Association (“Lender”) has approved the Application dated March 18, 2004 ..., subject to the conditions of the Application and this Rider. The Application and this Rider, and any future amendments thereto, are collectively referred to as the “Commitment ”.

The loan was never funded. Thereafter, Weisser filed suit against PNC Bank, seeking the return of certain deposits required pursuant to the Application and Rate Agreement, contending that the deposits were refundable.

PNC Bank filed a “Motion to Dismiss for Improper Venue or Alternatively for Forum Non Conveniens,” asserting, in part, that pursuant to paragraph 30 of the Application, Weisser “expressly consented to the exclusive jurisdiction of either the U.S. District Court for the District of Kansas or the District Court of Johnson County, Kansas, for the judicial resolution of any disputes arising under, or in anyway related to, the Application and Commitment.” The trial court granted the motion to dismiss for improper venue, but denied the motion to dismiss for forum non con-veniens. Weisser appeals the granting of PNC Bank’s motion to dismiss for improper venue.

The determination of whether the trial court erred by granting PNC Bank’s motion to dismiss for improper venue depends on whether the forum selection clauses in the Application and Rate Agreement are permissive or mandatory, and whether an ambiguity or conflict exists between the two clauses.

The trial court entered an order granting PNC Bank’s motion to dismiss for improper venue based on its interpretation of the forum selection clauses and other contractual language in the Application and Rate Agreement. Consequently, this court’s standard of review is de novo. See DVDPlay, Inc. v. DVD 123 LLC, 930 So.2d 816, 818 (Fla. 3d DCA 2006) (holding that, as the trial court’s order denying the defendant’s motion to dismiss was based on the interpretation of a forum selection clause, the district court’s standard of review was de novo); Regal Kitchens, Inc. v. O’Connor & Taylor Condo. Constr., Inc., 894 So.2d 288, 290 (Fla. 3d DCA 2005) (“The trial court’s interpretation of the contractual venue provision presents a question of law. For this reason, our standard of review is de novo.”).

We begin our analysis with recognition that in Florida, contracting' parties are permitted to agree that any litigation stemming from their contract must be heard in a specific forum. See Dataline Corp. v. L.D. Mullins Lumber Co., 588 So.2d 1078, 1079 (Fla. 4th DCA 1991). There is, however, a distinction .between permissive and mandatory forum selection clauses. “Permissive [forum selection] clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in any other forum.” Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So.2d 273, 274-75 (Fla.1987). In contrast, mandatory forum selection clauses provide “for a mandatory and exclusive place for future litigation.” Id. at 274; see also Shoppes Ltd. P’ship v. Conn, 829 So.2d 356, 357-58 (Fla. 5th DCA 2002) (“Florida courts recognize a distinction between mandatory jurisdiction clauses in contracts which require that a particular forum be the exclusive jurisdiction for litigation concerning the contract, and permissive jurisdiction clauses which only provide that there may be jurisdiction over such litigation in a particular forum.”).

In determining whether a forum selection clause is mandatory or permissive, the language of the clause must be examined. For example, in Quinones, the Florida Supreme Court found that the forum selection clause was permissive, not mandatory, because it provided that the creditor “may” institute legal proceedings in specified courts, not that it “shall” do so. Quinones, 509 So.2d at 275 (emphasis added); see also Regal Kitchens, 894 So.2d at 290 (holding that a forum selection clause is permissive where it provides that “[a]ny litigation concerning this contract shall be governed by the law of the State of Florida, with proper venue in Palm Beach County”) (emphasis added); Cardoso v. FPB Bank, 879 So.2d 1247, 1249 (Fla. 3d DCA 2004) (holding that forum selection clause, which provides that “[a]ny legal action or proceeding against Borrower and/or Guarantor with respect to this Agreement, the Note, the Loan and the Guarantee hereunder may be brought in” specified venues, is permissive) (emphasis added). “Conversely forum selection clauses which state or clearly indicate that any litigation must or shall be initiated in a specified forum are mandatory.” Shoppes Ltd., 829 So.2d at 358 (emphasis added) (citing Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627 (Fla. 1st DCA 1999)).

Weisser conceded at oral argument that the forum selection clause contained in the Application is mandatory, requiring all disputes to be litigated in Kansas. He, however, argues that, because the forum selection clause contained in the subsequently-executed Rate Agreement contains a mandatory forum selection clause requiring disputes under that agreement to be litigated in Missouri, there is an ambiguity or conflict between the two forum selection clauses, and therefore, the forum selection clauses must be treated as permissive. Thus, Weisser argues that he was free to litigate his claims against PNC Bank in Miami, as he resides in Miami-Dade County and PNC Bank conducts business in Miami-Dade County. In support of this argument, Weisser primarily relies on American Boxing Athletic Ass’n v. Young, 911 So.2d 862 (Fla. 2d DCA 2005).

In American Boxing, Stacy Young died while competing in a contest. Prior to competing in the contest, Young executed a release and waiver agreement, containing the following forum selection clause: “If any disputes arise which are related in any way to this document, then I consent and agree that jurisdiction for such dispute shall be in Bay City, Michigan.” The Second District found that the forum selection clause was ambiguous because it employed both permissive language, “consent,” and mandatory language, “shall,” and therefore, the forum selection clause must be construed against the drafter. Id. at 865. Specifically, after acknowledging that forum selection clauses which provide that litigation “shall” or “must” be initiated in a specific forum are “generally considered to be mandatory,” the Second District held that “[a] consent to jurisdiction is a hallmark of a permissive venue provision. Id. Thus, the venue provision at issue here employs contradictory terms, rendering it ambiguous. When a venue clause is susceptible to more than one interpretation, it should be construed against the drafter.” Id. at 865-66 (citations omitted).

We do not agree with the Second District’s position in American Boxing that because the forum selection clause contains the words “consent” and “shall” this creates an ambiguity. Although the forum selection clause contains the words “consent” and “shall,” when read together, it clearly reflects that Young agreed to initiate any litigation arising out of the release and waiver agreement in Bay City, Michigan. This language is unambiguous and it is mandatory, not permissive, as it contains words of exclusivity. See Shoppes Ltd., 829 So.2d at 358 (holding that “the general rule is that [a forum selection] clause will be considered permissive where it lacks words of exclusivity”) (emphasis added).

In Quinones, the Florida Supreme Court specifically held that mandatory forum selection clauses provide “for a mandatory and exclusive place for future litigation.” Quinones, 509 So.2d at 274. In the instant case, the mere use of the word “consent” does not render the forum selection clause in the Application permissive where the forum selection clause includes words of exclusivity specifying the exclusive jurisdiction of specified courts in Kansas for the “judicial resolution of any disputes arising under, or in anyway related to, the Application and Commitment.”

We, therefore, find that the forum selection clause in the Application is unambiguous and contains words of exclusivity, and that the clause is mandatory, not permissive. See Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So.2d 827, 829 (Fla. 4th DCA 2004) (holding that forum selection clause, which provides that “[t]he parties hereto consent to Broward County, Florida, as the proper venue for all actions that may be brought pursuant hereto,” was mandatory because the use of the word “the” refers to only one “proper venue,” to the exclusion of other venues) (emphasis added); see also Regal Kitchens, 894 So.2d at 291 (holding that where a forum selection clause lacks mandatory language or words of exclusivity to show that venue is proper in only the specified forum, the clause is permissive, not mandatory).

Likewise, in the instant case, the forum selection clause in the Application contains words of exclusivity, and Weisser agrees that while the Application provides that “[t]he parties further consent to the exclusive jurisdiction” in specified courts in Kansas “for the judicial resolution of any disputes arising under, or in anyway related to, the Application and Commitment,” the forum selection clause in the Application is mandatory, (emphasis added).

Although Weisser does not agree with the Second District’s conclusion that the forum selection clause in American Boxing is ambiguous, he relies on the Second District’s additional finding that when a forum selection clause is ambiguous, it must be construed as permissive. As we have already stated, we disagree with the Second District’s premise that the language of the forum selection clause creates an ambiguity. Additionally, we conclude that Avierican Boxing is not applicable to the instant case where the forum selection clause in the Application is unambiguous and the Rate Agreement contains a provision which precludes the modification of the provisions in the Application. Paragraph 5 of the Rate Agreement specifically provides, in part, that the “Applicant acknowledges that nothing in this [Rate] Agreement shall modify the terms of the Commitment.”

Weisser argues that although the Application contains an unambiguous mandatory forum selection clause, because the Rate Agreement also contains an unambiguous mandatory forum selection clause and the two forum selection clauses conflict, we must conclude that this conflict creates an ambiguity which requires a finding that the forum selection clauses are permissive. We disagree.

Although the Application provides that the parties “consent to the exclusive jurisdiction” of specific courts in Kansas to resolve disputes, and the Rate Agreement, which was executed approximately six months after the Application, provides that the parties “consent to the exclusive jurisdiction” of specific courts in Missouri to resolve disputes regarding the Rate Agreement, paragraph 5 of the Rate Agreement, which provides that the “Applicant acknowledges that nothing in this [Rate] Agreement shall modify the terms of the Commitment,” eliminates any potential conflict between the two forum selection clauses. Because the forum selection clause in the Application cannot be modified by any provision contained in the Rate Agreement, the forum selection clause contained in the Rate Agreement has no effect, is unenforceable, and does not render the forum selection clause in the Application or any Riders to the Application, permissive. We, therefore, find that the trial court properly granted PNC Bank’s motion to dismiss for improper venue.

Affirmed.

      . The term ''Commitment” is defined as the Application and any Rider to the Application.

      . Citing to an internet dictionary, Weisser argues that the term "modify” means “to make minor changes in,” and therefore, the term only applies to minor modifications, and that modifying the forum selection clause is not a minor modification. We find this argument unpersuasive. Blacks Law Dictionary defines "modify” as follows: "To alter; to change in incidental or subordinate features; enlarge, extend; amend; limit, reduce. Such alteration or change may be characterized, in quantitative sense, as either an increase or decrease.” Black's Law Dictionary 905 (5th ed.1979).


source: Caselaw Access Project

author: MAY, J.

license: Public Domain

text:
    Denis DEONARINE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D05-2926, 4D06-671.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.
    Rehearing Denied Oct. 29, 2007.

      Richard G. Lubin, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The dangers of prescription drug abuse and the State’s efforts to curb the improper prescription of these drugs form the framework for this appeal. The defendant appeals his conviction and sentence for one count of trafficking in a Schedule II drug over 28 grams, one count of trafficking of a Schedule II drug over 4 grams but less than 14 grams, five counts of delivery of a Schedule IV drug, one count of racketeering, two counts of Medicaid fraud, one count of insurance fraud, and one count of a fraudulent insurance claim. He raises several arguments; we affirm on all issues but one. We reverse his conviction on the count for trafficking of a Schedule II drug over 28 grams, but affirm in all other respects.

In February 2001, one of the defendant’s patients died from a drug overdose. The patient’s death brought law enforcement’s attention to the defendant, Denis Deona-rine, M.D. Law enforcement reviewed various pharmacy records, patients’ medical histories, Medicaid records, and interviewed numerous individuals. During the investigation, a senior investigator from the Office of the Attorney General posed as a patient and sought treatment from the defendant. He secretly recorded conversations within the defendant’s office.

Based upon affidavits of that investigator, an investigator of the Palm Beach County State Attorney’s Office, and a special agent of the Food and Drug Administration’s Office of Criminal Investigations, the court issued a search warrant for the defendant’s medical office. Law enforcement executed the warrant and created a nineteen-page inventory of items seized.

In its Second Amended Information, the State charged the defendant with five counts of Medicaid fraud, one count of insurance fraud, and one count of a false and fraudulent insurance claim. (Case number 01CF005383B02 [5383], covering events occurring between January and April 2001). Based upon a grand jury’s second re-filed indictment, the State charged the defendant with eighty offenses, including one count of first degree murder, one count of racketeering, fifty-three counts of trafficking of a Schedule II drug (oxycodone), and twenty-five counts of sale/delivery of Schedule IV drugs (dia-zepam/alprazolam). (Case number 01CF008126A02 [8126], covering events between September 1999 and April 2001). The trial court consolidated the cases as the result of an agreed-upon motion. Subsequently, the trial court severed the counts of insurance fraud and the false and fraudulent insurance claim based upon a defense motion.

The defendant moved to suppress the evidence seized from his office, claiming the warrant was insufficient on its face, and that the affidavit failed to establish probable cause. He argued that law enforcement intentionally and recklessly obscured the lack of probable cause from the court. He also claimed the warrant was overbroad.

At the hearing on the motion to suppress, the State presented testimony from two of the investigators. The witnesses were able to detail the source of the information contained in the affidavit, but admitted to some omissions and inaccurate paraphrasing. The trial court ruled:

With the exception of the fact that there being other evidence, for whatever reason, was not included because it was superfluous, because it was irrelevant or was just extraneous to the real issues of probable cause.... And uh, and the only other issue is that the, the factual issues presented by the witnesses are such that the Court finds that the, the witnesses before the Court are honest, straightforward, and that if there was any important evidence that was not included in the, in the Affidavit which supported the search warrant, it would not have made any difference in the Court’s view to the ultimate outcome of the determination of probable cause, and accordingly the defendant’s motion is denied.

I, THE TRAFFICKING COUNTS

At trial, the State entered the defendant’s medical records for numerous patients as well as the testimony of several of them; however, the trafficking charges related only to Patient #1.. When Patient # 1 first met the defendant, she was homeless, staying with friends, and on Medicaid. She wanted stronger medication for pain; her friend gave her one of the defendant’s business cards. She hoped to get a prescription for OxyContin.

Her initial visit was on January 10, 2001. At that time, the defendant prescribed sixty 80 mg- tablets of OxyContin, Roxyeo-done, and Halcion. She recalled that the defendant did not review her general medical history, but relied on the MRI report she brought with her. The defendant did not inquire about her limitations in activity, and did not discuss alternatives to pain medication. During the examination, she disclosed her personal problems and the fact she was homeless. Before she left, the defendant asked her to dinner.

Sixteen days later, the defendant severed the doctor-patient relationship with Patient # 1, but Continued to prescribe opiates for her. The defendant then employed her to work in his office and bought her a 2000 Jaguar. Several weeks later, they went to Jamaica on vacation.

The defendant wrote prescriptions for her regularly. Between Febrüary and May 2.001, the defendant increased her OxyContin prescription from one pill every twelve hours to two pills three times a day.

On several occasions the defendant accompanied her to the pharmacy to fill them. He was aware that she was using multiple pharmacies to fill the prescriptions, and that both her health insurance through her employment with him and Medicaid paid for them. She knew that Medicaid coverage was no longer valid once she acquired health insurance.

A. Count #12

The State’s evidence against the defendant on Count 12 for trafficking of a Schedule II drug in an amount of 28 grams or more centered on two different sets of prescriptions written for Patient #1. In one set, the State introduced a print-out of Patient # l’s profile from Walgreen’s pharmacy, focusing on the prescriptions for Oxycodone, OxyContin, and OxylR, prescribed by the defendant and filled by the pharmacy, between January 29, 2001, and March 31, 2001. The total weight of active ingredient was 38.37 grams.

As the second set, the State also introduced seven of ten written prescriptions and a pill bottle containing OxyContin that were seized from Patient # l’s purse during the search of the defendant’s office. The total weight of Oxycodone from the seven written prescriptions was 21.45 grams while the pill bottle constituted the balance for the offense.

B. Count #15

The State’s evidence supporting the trafficking in Schedule II drugs in an amount between 4 and 14 grams (Count 15) consisted of proof that Patient # 1 presented two prescriptions at Eckerd Pharmacy on February 21, 2001. The pharmacist on duty that day testified that one of the prescriptions raised suspicion. The defendant was present at the counter and discussed the prescription with the pharmacist, but could not produce his credentials. Not only was the pharmacist dissatisfied with the defendant’s verification of his identity, she did not have a sufficient stock of OxyContin to fill the prescriptions. The pharmacist returned both prescriptions unfilled.

II. THE DEFENDANT’S MOTIONS FOR JUDGMENT OF ACQUITTAL

At the close of the State’s case-in-chief, the defendant moved for a judgment of acquittal and argued the State failed to prove that he unlawfully sold, delivered, or possessed with the intent to sell or deliver any controlled substances. The trial court denied the motion. At the close of all the evidence, the defendant renewed his motion for judgment of acquittal. The trial court denied the renewed motion.

The jury found the defendant guilty of ten counts: one count of trafficking over 28 grams of a Schedule II drug (count 12), one count of trafficking of a Schedule II drug over 4 grams but less than 14 grams (count 15), five counts of delivery of a Schedule IV drug, one count of racketeering, and two counts of Medicaid fraud.

The defendant renewed his motion for judgment of acquittal. The defendant argued there was no proof of the weight of the drugs involved on Counts 12 and 15, the trafficking counts. For the first time, he argued the State could not combine multiple transactions to give rise to the level of trafficking in Count 12. Along with his renewed motion for judgment of acquittal, the defendant moved for new trial, making the same arguments. The trial court heard both motions and denied them.

The trial court adjudicated the defendant guilty and sentenced him to 25 years imprisonment with a mandatory minimum of 25 years on the major trafficking count; 150 months (12.5 years), mandatory minimum three years, on the minor trafficking count; five years on each delivery count; 150 months (12.5 years) on the racketeering count; and five years on each Medicaid fraud count. All sentences ran concurrently.

III. THE APPEAL

The defendant raised numerous issues on appeal. We "write to address the convictions on the two trafficking counts and the racketeering count. We find no merit in the other issues raised.

The defendant argues the trial court erred when it denied his motions for judgment of acquittal because there was insufficient evidence to support a conviction on any of the counts. He claims there was insufficient evidence of drug weight to support the trafficking counts and that it is impermissible to add the prescriptions together to reach the requisite weight. The gravamen of the defendant’s position is that the State cannot combine the drug weights from multiple prescriptions, written at different times, to create an aggregate weight to support the trafficking charges.

A motion for judgment of acquittal challenges the legal sufficiency of the State’s evidence. Boyce v. State, 638 So.2d 98, 99 (Fla. 4th DCA 1994). We review motions for judgment of acquittal de novo. “In moving for a judgment of acquittal, a defendant admits all the facts and evidence adduced at trial, as well as every conclusion favorable to the State that a jury might fairly and reasonably infer therefrom.” Id. (citing Peacock v. State, 498 So.2d 545, 546 (Fla. 1st DCA 1986)).

In State v. Vinson, 298 So.2d 505, 507 (Fla. 2d DCA 1974), the Second District Court of Appeal recognized that in enacting its drug laws, “the Legislature intended to encompass a situation where a doctor, by reason of his right to issue prescriptions, does so in bad faith and thereby provides a user with the vehicle with which to obtain the drug he could not otherwise acquire.” It is the act of prescribing the controlled substance in bad faith that subjects the physician to criminal prosecution. Id. This is so regardless of whether the prescription is filled. Thus, “[t]he physician who has issued a prescription for a drug in bad faith and not in the course of his professional practice has done everything he can do toward committing the crime.” Id. at 509.

Since that time, our supreme court has dealt with the nuances of applying the trafficking statute. In State v. Weeks, 335 So.2d 274 (Fla.1976), the court held that the trafficking statute was not unconstitutionally vague as applied to a physician. In Hayes v. State, 750 So.2d 1 (Fla.1999), the court held that the ability to consider the weight of a “mixture” for purposes of the trafficking statute is restricted to Schedule I and II drugs and does not apply a drug that can be classified as either a schedule II or III drug.

In State v. Travis, 808 So.2d 194, 196 (Fla.2002), the supreme court held that the total weight of a Schedule II drug could be multiplied by the number of tablets to determine whether the amount met the threshold under the trafficking statute. In doing so, the court noted that “nothing in this section prohibits aggregating the number of tablets possessed by the defendant in order to meet the threshold amount for drug trafficking.” Id.

What no Florida court appears to have addressed is whether the State can convict a physician for trafficking by aggregating the amounts in multiple prescriptions written by the physician. However, one Florida decision and one from outside the state shed light on the subject.

The Court of Criminal Appeals of Alabama wrestled with the issue outside the medical context in Townsend, v. State, 823 So.2d 717 (Ala.Crim.App.2001). It was faced with a defendant charged with trafficking based upon the aggregation of two separate stashes of the drug. Id. at 719. The defendant argued he should have been charged with multiple counts of possession instead of a single charge of trafficking. Id. After reviewing the applicable statutory language and the law on double jeopardy as it applied to the facts, the court found no prohibition to aggregating separate amounts of drugs for purposes of the trafficking statute. In doing so, however, the court acknowledged that whether smaller amounts of drugs could be aggregated to increase the charge and penalty depended on the circumstances of the case. Id. at 724.

This court held in Davey v. State, 914 So.2d 529, 530 (Fla. 4th DCA 2005), that it is the “spatial and temporal aspects of the surrounding circumstances” that determine whether separate amounts of a drug can support separate charges or run afoul of a double jeopardy challenge. What we must decide is whether the “spatial and temporal aspects of the surrounding circumstances” are close enough in time to support the aggregation of the prescribed amounts of drugs to support a trafficking charge. In essence, the issue here is the polar opposite of that found in double jeopardy challenges.

First, we conclude, as did the Court of Criminal Appeals of Alabama, that our statutory language does not prohibit the aggregation of amounts of drugs to support a trafficking charge. Second, we con-elude that the “spatial and temporal time” between the writing of prescriptions is a viable means by which to determine if the defendant had sufficient time to form a new criminal .intent thereby committing separate crimes.

Given these parameters, we find the facts giving rise to Count 12 do not allow for the aggregation of the amounts of the prescribed controlled substances to support the defendant’s conviction for trafficking. Here, the State relied upon prescriptions issued over a three-month period of time, from January 29 to March 31, 2001, to support Count 12. These prescriptions occurred over a significant “spatial and temporal time” that allowed the defendant “to pause, reflect, and form a new criminal intent between the occurrences.” Id. We therefore reverse the defendant’s conviction on Count 12 and remand the case to the trial court for entry of the lesser included charge of delivery.

As to Count 15, however, the State relied upon two prescriptions presented by Patient # 1 to the Eckerd Pharmacy on February 21, 2001. The defendant was present at the time the prescriptions were presented. In fact, he attempted to intercede when the pharmacist questioned Patient # 1 about filling the two prescriptions at the same time. We find this evidence sufficient to support the defendant’s conviction on this count.

Lastly, the defendant suggests the State failed to establish that the alleged trafficking activity was conducted as part of a continuing course of conduct through an enterprise. He argues that his multiple violations of chapter 893 do not constitute racketeering as defined by section 895.02, Florida Statutes (2001). The State responds that the defendant’s medical practice satisfied the statutory definition of an enterprise and that his multiple convictions for delivery and trafficking satisfied the statute’s requirement of “racketeering.” We agree with the State.

Section 895.03(3), Florida Statutes (2001) provides: “It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.” An enterprise is defined as “any individual, sole proprietorship, ... corporation, ... or other legal entity, or ... group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental, as well as other, entities.” § 895.02(3). We find that the defendant’s medical practice is equivalent to the law firm found to constitute an enterprise in State v. Jackson, 677 So.2d 938 (Fla. 2d DCA 1996). The multiple convictions of delivery, the trafficking charge, and the two counts of Medicaid fraud were more than sufficient to satisfy the racketeering element of the statute.

For these reasons, we reverse the defendant’s conviction on Count 12, and remand the case to allow entry of a lesser included crime of delivery. We affirm in all other respects.

Affirmed in part and reversed in part.

GUNTHER and GROSS, JJ., concur.

      . Reserving his right to appeal the validity of the search, the defendant pled nolo contendere to one count of insurance fraud and one count of a false and fraudulent insurance claim.

      . While the renewed motion for judgment of acquittal raised this issue as it related to Count 12 only, the defendant has raised this issue as it relates to both Counts 12 and 15 on appeal.

      . The defendant also argues the State failed to prove that the prescriptions for Patient # 1 were not written in good faith. We disagree. There was competent, substantial evidence that Patient # 1 ceased being a patient, and yet the defendant continued to prescribe large doses of opiates for her. This is sufficient evidence that the physician did not prescribe the drugs in “good faith.” State v. Weeks, 335 So.2d 274, 277 (Fla.1976).


author: PER CURIAM.

text:
    Alshon BRADSHAW, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1933.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.
    Alshon Bradshaw, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Foster v. State, 810 So.2d 910, 914 (Fla.2002) (affirming the summary denial of defendant’s post-conviction motion because, in part, the record attachments conclusively refuted the defendant’s claims).


text:
    Pierre A. ROCHE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1695.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.
    Pierre A. Roche, in proper person. Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for ap-pellee.
    Before GREEN, WELLS and SUAREZ, JJ.
   PER CURIAM.

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

Because we cannot determine from the lower court’s order or record attachments whether the defendant waived his credit for time served, we reverse and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post conviction motion, the court shall attach record excerpts conclusively showing that the appellant waived jail credit at sentencing, or, if he did not, the trial court shall award proper credit for the time the defendant spent in jail.

Reversed and remanded for further proceedings.


author: MONACO, J.

text:
    AMERUS LIFE INSURANCE CO., Appellant, v. Michael H. LAIT and Michael H. Lait, P.A., Appellee.
    No. 5D06-3875.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2007.
    Robin Sobo Moselle of Jacobson, Sobo & Moselle, Plantation, for Appellant.

      No Appearance for Appellee.
   MONACO, J.

The issue presented in this appeal is whether the trial court erred in concluding that the motion of the appellant, AmerUs Life Insurance Co., was untimely under the bright line rule set forth in rule 1.525, Florida Rules of Civil Procedure. We agree with the trial court that the motion was not timely made.

The facts are uncomplicated. After a non-jury trial the trial court rendered a final judgment in favor of AmerUs Life and against the appellees, Michael H. Lait and Michael H. Lait, P.A. (collectively “Lait”), in the amount of $125,867.57. The judgment contained a recitation that Lait was “liable to the plaintiff’ for prejudgment interest, court costs and attorneys’ fees, “which are reserved at this time.” Eight months later, AmerUs Life moved the trial court for entry of an “Amended Final Judgment” so that it could establish the award of interest, fees and costs. Along with the motion AmerUs Life filed an affidavit concerning its claimed costs and interest, as well as an affidavit regarding attorneys’ fees that suggested a fee of $4,672.50. The trial court promptly entered an amended final judgment in accordance with the affidavits. A few weeks later the trial court rendered a “Second Amended Final Judgment” in which it simply corrected a few scrivener’s errors that were contained in the amended judgment.

Apparently about a month thereafter AmerUs Life filed yet another motion to amend the final judgment. At the hearing on that motion Lait orally moved to vacate the previously entered amended judgments based on the failure of AmerUs Life to comply with the time requirements specified in rule 1.525. After considering the rule and the Florida Supreme Court’s decision in Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006), the trial court granted Lait’s motion and vacated the amended and second amended final judgments, effectively awarding no fees or costs. AmerUs Life timely appealed.

Rule 1.525, entitled “Motions for Costs and Attorneys’ Fees,” reads as follows:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

The Supreme Court in Saia related specifically that when it adopted this rule, “we established a bright-line time requirement for motions for costs and attorney fees which the Rules of Civil Procedure had not previously contained.” Id. at 600. The court, agreeing with the analysis of Judge Altenbernd in Diaz v. Bowen, 832 So.2d 200 (Fla. 2d DCA 2002), held that it was no longer sufficient for parties seeking fees to plead a basis for them only in pretrial pleadings. The motion described in rule 1.525 filed within the bright-line period was also required.

Of importance to our consideration is the fact that the Supreme Court specifically noted that our sister court in the underlying Saia decision, as well as another district court of appeal in an earlier decision, decided that when the final judgment contains a reservation of jurisdiction on fees and costs, the time requirement of rule 1.525 does not apply. The Supreme Court, however, disagreed with that approach. Id. at 600.

While the result is harsh, we are as bound as the trial court was by Saia. We, accordingly, affirm the order vacating the amended and second amended final judgments. We do so, however, without prejudice to AmerUs seeking a determination of prejudgment interest, a subject not covered by the language of rule 1.525.

Finally, we note that the Third District Court of Appeal has reached a contradictory conclusion on this issue in Chamizo v. Forman, 933 So.2d 1240 (Fla. 3d DCA 2006). We, therefore, certify conflict with Chamizo in accordance with rule 9.030(a)(2)(A)(vi), Florida Rules of Appellate Procedure.

AFFIRMED.

SAWAYA and LAWSON, JJ., concur.

      . Saia Motor Freight Line, Inc. v. Reid, 888 So.2d 102 (Fla. 3d DCA 2004).

      . Fisher v. John Carter & Assocs., Inc., 864 So.2d 493 (Fla. 4th DCA 2004).


author: ROTHENBERG, Judge.

text:
    Kevin JONES and Virgil Swindle, Petitioners, v. Timothy P. RYAN, Director, Miami-Dade County Corrections and Rehabilitation Department, Respondent.
    Nos. 3D07-2429, 3D07-2422.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2007.

      Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for petitioners.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for respondent.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

In these consolidated cases, Kevin Jones (“Jones”) and Virgil Swindle (“Swindle”) seek habeas corpus relief based upon their confinement for 179 days and 240 days respectively, as a result of being found in civil contempt of court by the trial court for failure to comply with its orders. Because the orders issued by the trial court and the court history of each of the petitioners differ, we briefly address them separately.

JONES

A final domestic violence injunction was entered against Jones on September 14, 2006. The final judgment ordered Jones to report to the Advocate Program within twenty-four hours and to enroll in and successfully complete a certified batterer’s program and a substance abuse program, and to obtain a mental health evaluation and treatment through a licensed mental health professional.

Jones, however, failed to comply with the court’s order, which resulted in several notices and hearings for civil contempt. On February 6, 2007, the trial court entered an order finding Jones in civil contempt of court for failing to complete the Advocate Program; he was ordered to be confined at the Dade County Jail for 179 days commencing on February 13, 2007; and was given an opportunity to purge the order of contempt by re-enrolling in the Advocate Program within twenty-four hours and successfully completing it. Jones failed to avail himself of the purge provisions of the trial court’s civil contempt order, in that he failed to report to the Advocate Program, even after the trial court gave Jones several opportunities to do so. In justifiable frustration, the trial court noticed Jones for another contempt hearing, and ultimately found Jones to be in civil contempt for failing to comply with its orders, and sentenced Jones to 179 days in the Miami-Dade County jail.

SWINDLE

Swindle was likewise referred to the Advocate Program and ordered to enroll in and to complete various programs as a result of a domestic violence final judgment of injunction. When Swindle failed to comply with this order, the trial court twice noticed Swindle for contempt hearings, at which he failed to appear, and which resulted in warrants being issued for his arrest. The third such notice, and subsequent hearing, resulted in Swindle being found in civil contempt of court. The trial court’s order sentenced Swindle to sixty days in the Miami-Dade County jail and contained a purge provision of enrollment and successful completion of the Advocate Program.

Swindle continued to fail to comply with the trial court’s orders, even after being brought before the trial court on several occasions for civil contempt hearings. After at least seven separate notices being-issued for contempt proceedings and several findings of civil contempt, Swindle was ultimately sentenced to 240 days in the Miami-Dade County jail.

ANALYSIS

Each contempt order issued by the trial court for Jones and Swindle, excluding the last orders by the trial court finding each to be in civil contempt of court and sentencing Jones to 179 days and Swindle to 240 days incarceration, contained a purge provision and is not under review. The last orders issued by the trial court, finding each to be in civil contempt of court, and sentencing each to incarceration, do not contain a purge provision. Jones and Swindle, therefore, argue that the contempt orders under review are criminal in nature, governed by Rule 3.840, Florida Rules of Criminal Procedure, and that the provisions of this rule were not complied with. We agree.

Civil contempt and criminal contempt are quite different. Civil contempt is designed to obtain compliance with a court order, whereas, the purpose of criminal contempt is to punish. See Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985). Because incarceration is utilized to obtain compliance in a civil contempt proceeding, the contemnor must be given the ability to comply with the court’s order. Therefore, a civil contempt sanction must include a purge provision. Parisi v. Broward County, 769 So.2d 359, 365 (Fla.2000) (finding that a civil contempt order must include a purge provision); Bowen, 471 So.2d at 1277 (“Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply.”).

Because it is clear that the trial court was no longer attempting to obtain compliance from either Jones and Swindle, but rather, to punish each for their contemptuous disregard for its orders, the contempt orders under review are criminal in nature, requiring that the contemnors be afforded constitutional due process protections afforded criminal defendants. Parisi, 769 So.2d at 364-65. These include the right to be represented by counsel and, if indigent, to have counsel appointed. Id. Additionally, in the criminal contempt context, if the sanction involves imprisonment for more than six months, the contemnor has the right to a jury trial, and the trial court must issue a written order articulating the factual basis for the contempt finding. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826-27, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (“For ‘serious’ criminal con-tempts involving imprisonment of more than six months, these protections include the right to jury trial.”); Fla. R.Crim. P. 3.840(f) (providing that an order finding the defendant in criminal contempt include a recital of the facts constituting the contempt).

CONCLUSION

Because the orders under review do not contain a purge provision, we grant the petitions as the defendants are not legally being detained under these contempt orders. We further instruct the trial court, if it wishes to impose a punishment for failing to comply with its orders, that it must comply with Rule 3.840, Florida Rules of Criminal Procedure, including (1) the issuance of an order to show cause to be served upon the defendants stating the facts upon which each defendant must answer; (2) the appointment of counsel if the defendant is indigent; (3) the opportunity for the defendant to elect a jury trial, if the sentence the trial court seeks to impose is greater than six months; and (4) upon a finding of guilt, to afford the defendant with an opportunity to show good cause why the sentence should not be imposed and to offer evidence of mitigation. During the pendency of the matter, the trial court may consider and set bail in the manner provided by law in criminal cases. See Fla. R.Crim. P. 3.840(e).

Petitions granted, orders quashed, and Petitioners’ immediate release from the custody of Miami-Dade County Corrections and Rehabilitation Department ordered.

This opinion shall take effect immediately, notwithstanding the filing of any motions for rehearing.


author: CORTINAS, Judge.

text:
    H & H ELECTRIC, INC., Dominick R. Zanti, and Stephen J. Nix, Appellants, v. Fernando J. LOPEZ, Appellee.
    No. 3D07-145.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.

      Billing, Cochran, Heath, Lyles, Mauro & Anderson and Donna M. Krusbe, West Palm Beach and Vivian H. Fazio, Ft. Lauderdale, for appellants.
    Lauri Waldman Ross and Theresa L. Girten, Miami; Leesfield, Leighton & Partners and Thomas Scolaro, Miami, for appellee.
    Before WELLS and CORTINAS, JJ., and FLETCHER, Senior Judge.
   CORTINAS, Judge.

Appellants, H & H Electric, Inc.'(“H & H”) and Dominick R. Zanti (“Zanti”), seek review of a final judgment awarding damages in the amount of $435,968.16 to the appellee, Fernando J. Lopez (“Lopez”), pursuant to a jury verdict. Appellants contend that the trial court committed reversible error by precluding commentary by Dr. Robert Cantana, the appellants’ expert, regarding how surveillance video footage procured by appellants contradicted Lopez’s claims of injury and how viewing the video changed Dr. Cantana’s opinion. Appellants also allege that the trial court erred in denying their request for a jury instruction on pre-existing injury, instructing the jury that the accident in question was the legal cause of Lopez’s injuries, and in giving an instruction on aggravation of a pre-existing condition. We affirm.

I.Standard of Revieiv

We review discretionary issues involving the admission of evidence and the issuance of jury instructions for abuse of discretion. See Blanco v. State, 452 So.2d 520 (Fla.1984); Town of Palm Beach v. Palm Beach County, 460 So.2d 879 (Fla.1984) (stating that the scope of subjects about which an expert can testify is governed by the abuse of discretion standard); Hart v. Stern, 824 So.2d 927 (Fla. 5th DCA 2002); Westerheide v. State, 767 So.2d 637 (Fla. 5th DCA 2000); Jimenez v. Gulf & W. Mfg. Co., 458 So.2d 58 (Fla. 3d DCA 1984).

II.Factual Background

Lopez was injured when his motorcycle was struck from behind by a truck driven by Zanti, who at the time was an employee of H & H. As a result of being struck by Zanti, Lopez suffered various injuries. Prior to trial, the parties agreed on causation for Lopez’s pelvic and elbow injuries, prompting the trial court to partially grant Lopez’s motion for summary judgment, “on the issue of causation for [Lopez’s] injuries to his elbow, pelvic area and sacroiliac junctions as a result of this incident .... ” The cause of Lopez’s lower back injury, however, remained contested. During the course of litigation, and approximately sixteen months after the accident, appellants procured a surveillance video of Lopez washing his car and riding his motorcycle over the course of a particular weekend. Among those who viewed the video was Dr. Cantana who asserted that his opinion of Lopez’s injuries changed after viewing the video. Consequently, Dr. Cantana issued an addendum to his previously-issued independent medical examination report on Lopez’s injuries. The parties argued over whether or not the video should be admitted into evidence, and ultimately it was allowed. However, Dr. Cantana’s commentary on the video • and how it contradicted the injuries claimed by Lopez was precluded. Dr. Cantana was also not permitted to testify as to how viewing the video led him to change his opinion of Lopez’s injuries.

III.Preclusion of Dr. Cantana’s Commentary and Testimony as to the Surveillance Video

Appellants argue that the preclusion of Dr. Cantana’s commentary constitutes reversible error. The record reveals that the trial court examined and analyzed the need for admission of the video into evidence as well as whether it was appropriate to allow Dr. Cantana’s testimony regarding the video. These issues were addressed at a pretrial hearing, where ruling was deferred, and were ultimately revisited during trial. After hearing arguments from appellants and Lopez, as well as voir dire testimony of Dr. Cantana during trial, the court determined that, although the video would be shown to the jury, Dr. Cantana would not be allowed to comment on the video or its impact on his opinion. Notably, Dr. Cantana did not testify that his medical opinion on causation changed as a result of the video. The trial court took into account the fact that Lopez never represented that he was unable to perform any of the activities depicted in the video and, therefore, the video could not be used to impeach him. The record also shows that the trial court allowed appellants to make any and all arguments concerning the video to the jury, but determined that allowing an expert to comment on the video would “elevate” the video in the eyes of the jury. Moreover, the court reasoned that the jury would be able to properly make its own determination as to the content of the video.

We find no abuse of discretion by the court. Where a trial court has weighed probative value against prejudicial impact before reaching its decision, an appellate court shall not overturn such a decision absent a clear abuse of discretion. Trees v. K-Mart Corp., 467 So.2d 401 (Fla. 4th DCA 1985). Moreover, the content of the video was addressed during trial through the testimony of Sidney Davis, the private investigator who filmed the video. During their closing argument, appellants were also able to discuss points regarding the video similar to those upon which Dr. Cantana was intended to comment. As such, there is no abuse of discretion by the trial court, as its actions do not fall within the parameters of being “arbitrary, fanciful, or unreasonable.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (citing Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)).

IV. Issuance of Jury Instructions

Over appellants’ objection, the court gave the following jury instructions, among others:

The court has determined and now instructs you as a matter of law that Defendants H & H Electric, Incorporated and Dominick Zanti were negligent and the legal cause of Plaintiffs, Fernando Lopez’s, injuries.
If you find that H & H Electric, Incorporated, and Dominick Zanti caused a bodily injury and that injury resulted in an aggravation of an existing disease or physical defect or activation of a latent disease or defect you should determine what portion of Fernando Lopez’s condition resulted from the aggravation or activation.

Appellants contend that the jury instructions as given were “misleading or confusing,” in part because appellants had not conceded liability as to the lower back pain and because one instruction specified that appellants were the cause of the injuries while the other referenced the jury being able to “find” that appellants caused the bodily injury. We disagree. Although the court instructed the jury that appellants “were negligent and the legal cause of [Lopez’s] injuries,” this instruction was tempered by the subsequent instruction that “[i]f you find that [Defendants] ... caused a bodily injury and that injury resulted in an aggravation of an existing disease or physical defect or activation of a latent disease or defect you should determine what portion of Fernando Lopez’s condition resulted from the aggravation or activation.”

The key to reading the jury instructions in tandem lies in the conjunction between being able to “find” that appellants “caused a bodily injury” and that such “injury resulted in an aggravation of an existing condition.” This instruction can reasonably be read in harmony with the previous jury instruction so as to qualify that, although there was causation of the injuries by appellants, a particular portion of the damages, if not all, may be proportionately reduced if a prior existing condition had been aggravated by the injuries. The court explained that the instructions given provided appellants with the opportunity to argue the extent of any such preexisting injuries. The court also noted, however, that there was no medical testimony stating that pre-existing injuries were the cause of Lopez’s lower back pain.

Decisions regarding jury instructions are within the sound discretion of the trial court and absent prejudicial error, shall not be disturbed on appeal. Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990). “Prejudicial error requiring a reversal of judgment or a new trial occurs only where ‘the error complained of has resulted in a miscarriage of justice.’” Id. § 59.041, Fla. Stat. (2006). Furthermore, “[a] ‘miscarriage of justice’ arises where instructions are ‘reasonably calculated to confuse or mislead’ the jury.” Goldschmidt, 571 So.2d at 425 (citing Fla. Power & Light Co. v. McCollum, 140 So.2d 569 (Fla.1962)). In the instant case, there is no evidence that the jury instructions given were reasonably calculated to mislead the jury, particularly in light of the fact that the trial court expressly stated that the appellants had the opportunity to argue as to the extent and percentage of the damages that may be attributable to a preexisting condition. As such, we find no reversible error in the issuance of these instructions.

Appellants further argue that the court’s failure to give the jury a portion of a particular instruction constituted reversible error. In order to demonstrate that failure to give a jury instruction constitutes reversible error, “an appellant must establish that the requested instruction contained an accurate statement of the law, the facts in the case supported a giving of the instruction, and the instruction was necessary for the jury to properly resolve the issues in the case.” Barkett v. Gomez, 908 So.2d 1084, 1086 (Fla. 3d DCA 2005). With respect to the factual requirement, the trial court specifically noted that there was no medical testimony substantiating appellants’ assertion of a pre-existing-condition. The trial court determined that the jury instructions ultimately given were the most appropriate for this particular case. Additionally, as the trial court explained, the instructions that were actually given to the jury regarding the “aggravation of an existing disease or physical defect or activation of a latent disease” allowed appellants the opportunity to argue as to the extent or percentage of Lopez’s pain caused by the pre-existing condition. As the jury was instructed to determine what part, if any, of Lopez’s condition resulted from the aggravation of a pre-exist-ing injury, the need for the omitted portion of the jury instruction requested by appellants was obviated and such was not necessary for the jury to properly resolve the issues before it.

Because the appellants failed to demonstrate an abuse of discretion as to the preclusion of Dr. Cantana’s testimony and as to the issuance of the jury instructions, we affirm the jury verdict in favor of Lopez.

Affirmed.

      . Stephen J. Nix was previously dismissed from the lawsuit.

      . The omitted portion of appellants' proposed . jury instruction read:
      On the first defense, the issue for your determination is: whether the disability or disfigurement alleged by Fernando J. Lopez is the result of a pre-existing condition and not caused by or aggravated by any acts of the Defendants.


author: WELLS, Judge.

text:
    Debra J. SIEGEL, Appellant, v. Franklin J. SIEGEL, Appellee.
    No. 3D06-961.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.

      Franklin & Criscuolo and Barry S. Franklin and Donald G. Criscuolo, North Miami Beach, for appellant.
    Bette Ellen Quiat; Jay M. Levy, Miami, for appellee.
    Before WELLS and CORTINAS, JJ., and FLETCHER, Senior Judge.
   WELLS, Judge.

Debra J. Siegel appeals from a final judgment of dissolution of marriage claiming that the trial court erred in determining that an account titled solely in the name of her former husband, Franklin J. Siegel, was non-marital property. Because we agree that the account is a non-marital asset, we affirm.

The parties were married on July 26, 1981, and are the parents of three children, all of whom attained majority before the marriage was dissolved. Mr. Siegel is a sole practitioner attorney who earned a modest living during the marriage; Mrs. Siegel worked periodically during the marriage and currently holds a masters degree in social work which she earned shortly before the marriage ended.

Without doubt, the parties lived comfortably, although modestly, during their marriage. After twenty-two years of marriage, the parties had acquired only three assets of significance: Mr. Siegel’s retirement account, valued at $39,000; a life insurance policy with a $24,500 cash value; and the marital home, with an equity value between $675,000 and $775,000. The only other asset owned by either party was a Vanguard brokerage account, valued at $223,000, titled in Mr. Siegel’s name alone.

The testimony regarding this account is not in dispute. Commencing in 1989, and continuing until 2003, Mr. Sie-gel’s mother, Roslyn, gave him a check in the amount of $10,000 each year as a birthday gift. These checks were payable solely to Mr. Siegel and stated “Happy Birthday” on them faces. Mr. Siegel deposited each of these checks into an account titled in his name alone — the Franklin J. Siegel R.S. Gift Account. The funds deposited into this account were never used by Mr. Siegel for any purpose, were not co-mingled with any marital funds, and were never traded or manipulated by Mr. Siegel in any manner. All increases in value of this account came solely from market increases or interest and dividend payments. Mrs. Siegel claims that this account was a marital asset, and that the trial court erred in declaring this account non-marital, because Mr. Siegel had told his accountant that the purpose of the account was to save for “their” future or retirement, for emergencies, and for expenses such as them daughters’ weddings. We find no error in the trial court’s conclusion regarding this asset.

Section 61.075 governing distribution of property in dissolution actions expressly requires trial courts to determine whether assets are marital or non-marital and to segregate to each party his or her non-marital assets and then distribute the marital assets:

(1) In a proceeding for dissolution of marriage ... the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the parties’ marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal....

§ 61.075(1), Fla. Stat. (2006); see also Riley v. Edwards-Riley, 963 So.2d 829 (Fla. 3d DCA 2007) (“the trial court must set apart to each spouse that spouse’s nonmar-ital assets and liabilities and then distribute the marital assets and liabilities”); Green v. Green, 650 So.2d 181, 182 (Fla. 1st DCA 1995) (remanding for the trial court to set aside the nonmarital assets and liabilities and then to equitably distribute the marital assets and liabilities); Green v. Green, 542 So.2d 466, 467 (Fla. 5th DCA 1989) (confirming that non-marital assets should not be placed in the “marital asset pot” for distribution).

To facilitate the equitable distribution of assets, section 61.075 defines marital and non-marital assets and places within the definition of non-marital assets those assets “acquired separately by either party by noninterspousal gift.” § 61.075(5)(b)(2), Fla. Stat. (2006). Thus, without a doubt, the funds given to Mr. Siegel annually by his mother were non-marital assets.

We agree with the trial court that Mr. Siegel’s intent regarding the funds deposited into the Franklin J. Siegel R.S. Gift Account is evidenced by his actions in keeping this account titled in his name alone, in not commingling the funds in this account with marital funds, and in expending no marital efforts on this asset, and not by a never acted upon statement that he intended to use this account for “their”meaning his and Mrs. Siegel’s-retirement, for their daughters’ weddings, or to defray business expenses. “Obvious evidence of an intent that [a noninterspousal gift] remain non-marital arises where the non-marital property is placed into a separate account, no other funds are deposited into it, and the account is never intermingled with the parties’ other funds.” Lakin v. Lakin, 901 So.2d 186, 190 (Fla. 4th DCA 2005); see also Spielberger v. Spielberger, 712 So.2d 835, 837 (Fla. 4th DCA 1998) (concluding that no presumption of gift arose as to non-marital funds placed in a joint account following marriage because the funds were traceable to a pre-marital source belonging solely to the husband; there had been no commingling with the marital funds; and the wife had never accessed the account). Mr. Siegel’s statements also do not evidence an actual enforceable gift to Mrs. Siegel.

We have previously outlined the principles used for determining whether there has been a valid gift:
It is well settled that to effectively pass title by gift there must be a surrender of dominion over the res, coupled with the intent then and there to pass title. In other words, there must be an immediate vesting of some interest in the donee, complete and irrevocable. If the donor withholds divestiture it is not a legal gift. A delivery which does not confer the present right to reduce the res into possession of the donee is insufficient.
Kuebler v. Kuebler, 131 So.2d 211, 215 (Fla. 2d DCA 1961); see also Ritter v. Shamas, 452 So.2d 1057 (Fla. 3d DCA 1984); Winner v. Winner, 370 So.2d 845 (Fla. 3d DCA 1979). Accordingly, “a mere intention to give in the future, however well shown, gives rise to no obligation which the law will recognize or enforce.” In re Slawson’s Estate, 41 So.2d 324, 327 (Fla.1949) (internal quotation marks omitted).

Rasmussen v. Rasmussen, 909 So.2d 969, 970 (Fla. 2d DCA 2005) (emphasis added); see also Farrior v. Farrior, 736 So.2d 1177, 1178-79 (Fla.1999) (stock kept in a safe deposit box which was neither traded nor intermingled with marital assets and which remained in the name of the original owner spouse, remained a non-marital asset even though it was used as collateral for joint debts); Lakin, 901 So.2d at 191 (confirming that use of a portion of non-marital funds does not convert the remaining funds into a marital asset).

In this case, Mr. Siegel never used the Franklin J. Siegel R.S. Gift Account for any purpose and was careful to keep this asset separate from the couple’s marital assets. Although he may have intended to make a gift of some or all of the money in this account at some time in the future, he never actually made a gift of any part of it. Since we find no merit in any of the other issues raised by Mrs. Siegel with regard to this account, we affirm the trial court’s finding that the account at issue was a non-marital asset.

The final judgment under review is, therefore, affirmed.


text:
    Everett A. OLIVER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1730.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.

      Everett A. Oliver, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. We reverse because the record before us does not conclusively refute the claims that are raised.

In case number 3D07-961, Everett A. Oliver claimed that he was sentenced to eighteen months in the Department of Corrections, followed by eighteen months’ probation. Subsequent to his release from incarceration, he was charged and found guilty of willfully violating the probation portion of his sentence. Oliver claims that before sentencing, on September 21, 2006, the prosecutor brought to the attention of the trial court the fact that he already had served eighteen months of incarceration in this case. He contends that at the sentencing hearing, the trial court stated that because he already had served eighteen months, the trial court was only going to sentence him to another eighteen months’ incarceration for the violation of his probation. Oliver claims, however, that the written sentencing order reflects that he was sentenced to three years in the Department of Corrections.

On March 7, 2007, Oliver filed a motion for post-conviction relief, asking the trial court to vacate his sentence and enter a new order comporting the written sentencing order with the trial court’s oral pronouncement at the sentencing hearing on September 21, 2006. On March 20, 2007, the trial court summarily denied the motion. On April 5, 2007, Oliver appealed the summary denial of his 3.850 motion to this Court. On May 23, 2007, we reversed the trial court’s summary denial and remanded for the attachment of records that would conclusively show that Oliver was not entitled to relief. See Oliver v. State, 957 So.2d 700 (Fla. 3d DCA 2007).

On June 7, 2007, the trial court again summarily denied the motion, and directed the clerk of the trial court to attach the judgment and sentence dated November 18, 2003. The clerk of the trial court did not attach the judgment and sentence, so this Court, on August 6, 2007, directed that the clerk of the trial court transmit those documents.

A review of the record reveals that the trial court still has not attached the appropriate documents. The November 18, 2003 sentencing order does not refute Oliver’s claim that the sentencing court orally pronounced, on September 21, 2006, that it was sentencing him to only eighteen months incarceration for the violation of his probation, as opposed to three years.

On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D). Because the record now before us fails to make the required showing, we again reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the trial court shall attach record excerpts conclusively showing that Oliver is not entitled to any relief, specifically, the transcript of the sentencing hearing held on September 21, 2006, and any sentencing orders entered by the sentencing court as a result of that hearing.

Reversed and remanded for further proceedings.


text:
    J.V., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Appellees.
    No. 3D07-887.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.
    Sanford Rockwitz, for appellant.
    Karla Perkins, Assistant District Legal Counsel, for appellee, Department of Children and Family Services; Hillary S. Kambour, for appellee, Guardian Ad Litem Program.
    Before COPE, GREEN, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

J.V. (“the mother”) appeals the trial court’s order adjudicating her infant son, J.T., dependent. As we conclude that the adjudicatory order entered by the trial court, finding that the mother and A.T. (“the father”) physically abused J.T., is supported by competent substantial evidence, we affirm.

J.T. was born on March 26, 2006. Shortly thereafter, the mother lost custody of her older child. On June 15, 2006, J.T. was taken into custody by the Department of Children and Family Services (“the Department”) based upon allegations of domestic violence between the mother and father. On June 23, 2006, however, J.T. was returned to his parents’ custody over the Department’s objection. Approximately three weeks after J.T. was returned to his parents, they took J.T. to the hospital when it became apparent that J.T. was suffering from pain to his left leg. It was ultimately determined that J.T., who was only three-and-a-half months old at the time, had sustained a fracture to his left femur. After a full trial, the trial court found that J.T.’s injury was a result of physical abuse by his parents. The father appealed the trial court’s order, and this court affirmed. See A.T. v. Dep’t of Children & Family Servs., 959 So.2d 736 (Fla. 3d DCA 2007).

In this appeal, the mother contends that there was insufficient competent evidence introduced at trial to support the trial court’s findings that J.T. had, in fact, sustained a fracture to his femur, and that the complained-of injury was a result of physical abuse by her.

Dr. Walter Lambert, a board certified pediatrician and an expert in child abuse, testified that J.T. had a fracture to his left femur. He explained that although the initial x-rays performed at Memorial West Hospital did not reveal the fracture to J.T.’s femur, the CT Scan performed at Joe DiMaggio Children’s/Memorial Regional Hospital did reveal the fracture. In concluding that J.T.’s femur was fractured, Dr. Lambert testified that he was relying on both the radiological reports from the hospitals as well as his own evaluation of the x-rays and CT Scan.

The mother contends that because Dr. Lambert is not a radiologist, he was not qualified to render an opinion based upon his reading of the x-rays and CT Scan, and that it was error to permit Dr. Lambert to rely upon medical records authored by the radiologists. We disagree.

The Florida Supreme Court and this court have recognized that it is generally within the trial court’s discretion to determine the sufficiency of a witness’qualifications to permit the witness to render an opinion as an expert,' and that the trial court’s decision whether or not to accept the witness as an expert will not be reversed absent a clear showing of error. See Ramirez v. State, 542 So.2d 352, 355 (Fla.1989); Johnson v. State, 438 So.2d 774, 777 (Fla.1983); Davis v. Caterpillar, Inc., 787 So.2d 894, 897 (Fla. 3d DCA 2001) (citing Geralds v. State, 674 So.2d 96, 100 (Fla.1996)).

Dr. Lambert testified that “looking at x-rays is part of [his] general practice .... I probably have more experience at looking at children’s films than does a given radiologist.” Given Dr. Lambert’s extensive experience as a pediatrician and expert in child abuse cases, as well as his experience in reading x-rays and CT Scans in the normal course of his practice, we find no fault with the trial court’s decision to permit Dr. Lambert to provide expert testimony regarding the nature of J.T.’s injury. “A physician is not incompetent to testify as an expert merely because he is not a specialist in the particular field of which he speaks.” Hawkins v. Schofman, 204 So.2d 336, 336 n. 1 (Fla. 3d DCA 1967) (quoting Wong Ho v. Dulles, 261 F.2d 456, 460 (9th Cir.1958)).

J.V. argues that Dr. Lambert should not have been permitted to rely on the hospital radiologist’s report that the x-ray and CT Scan showed a fracture. That objection was properly overruled. In G.V. v. Department of Children & Families, 795 So.2d 1043 (Fla. 3d DCA 2001), this court held that Dr. Lambert was allowed to base his testimony on x-ray reports of a pediatric radiologist. “ ‘If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.’ ” Id. at 1048 (quoting § 90.704, Fla. Stat. (1998)).

J.V. argues, however, that this analysis has been undercut by Linn v. Fossum, 946 So.2d 1032 (Fla.2006). We disagree. The Linn case involved an expert who testified in court about opinions she solicited from multiple other experts who had no knowledge of the case and did not testify at trial. Id. at 1034-35. The Linn court prohibited an expert from serving as a mere conduit for such a “curbside consult.” Id. at 1035-39. In so holding, the Linn court “emphasized that our opinion today in no way precludes experts from relying on facts or data that are not independently admissible in evidence ‘[i]f the facts or data are a type reasonably relied upon by experts in the subject.’ ” Id. at 1033 (quoting § 90.704, Fla. Stat. (2005)). Dr. Lambert’s reliance on the radiologists’ reports is consistent with Linn.

The second issue raised by the mother is the sufficiency of the evidence that the injury suffered by J.T. was a result of physical abuse by his parents. Dr. Lambert testified that based upon the child’s age (he was three-and-a-half months old at the time), he could not have suffered a traumatic event sufficient to result in a fracture of his femur without alerting his caretaker(s). Neither parent offered a history of events which could have explained the fracture when they discussed the issue with Dr. Lambert initially. The only explanation they offered was that on July 12, 2006, the day before the injury was discovered, J.T.’s four-year-old brother allegedly picked J.T. up out of the bouncer J.T. was seated in, and he was carrying J.T. when the mother returned to the room and discovered him with the baby in his arms. The mother, however, testified that J.T. was not crying; did not appear to be injured; and showed no signs of distress throughout the day, that night, or the following morning. Dr. Lambert testified that a fracture to the child’s femur required force and trauma; the injury was painful to the child because pieces of the bone were rubbing against each other causing internal swelling around the fractured bone; and, therefore, if J.T. was injured by his brother, J.T. would have first exhibited signs of distress to his leg on July 12th, which is the day J.T.’s brother visited the household, not on July 13th, as claimed by the mother.

The undisputed evidence is that J.T. suffered a fracture to his left femur. This injury was as a result of a traumatic event. The child’s parents, however, failed to offer any evidence of a traumatic event, and were the child’s only caretakers. We, therefore, conclude that as there was sufficient evidence to support the trial court’s finding that the Department established by a preponderance of the evidence that the mother and father had physically abused J.T., we affirm the trial court’s order adjudicating J.T. dependent. See C.W. v. Dep’t of Children & Family Servs., 904 So.2d 588, 590 (Fla. 3d DCA 2005) (holding that circumstantial evidence is as probative as direct evidence and may be relied upon in establishing a case of child abuse); see also A.D. v. Dep’t of Children & Families, 837 So.2d 1078, 1079 (Fla. 5th DCA 2003) (“In order to adjudicate a child dependent, the trial court must find by the preponderance of the evidence that the child has been abused, abandoned, or neglected, or is at substantial risk of imminent abuse, abandonment, or neglect.”).

Affirmed.


text:
    Christine DERRICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-350.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.
    Bert Winkler, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Smiley v. State, 966 So.2d 330 (Fla.2007).

SHAHOOD, C.J., FARMER and TAYLOR, JJ., concur.


author: GROSS, J.

text:
    Jay GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4432.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.
    Rehearing Denied Oct. 10, 2007.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING AND CLARIFICATION

GROSS, J.

We grant the state’s motion for clarification, withdraw our previous opinion on the motion for rehearing and issue the following.

The motion for rehearing criticizes the panel opinion for pre-determining the sufficiency of the evidence. On remand, double jeopardy bars retrial for any charge for which Gordon was found not guilty. The imprecision of the original contempt finding raises many issues on remand which we cannot prejudge at this time. Our discussion of the nature of the evidence was in response to what we perceived to be the constitutional argument that reversal was required because no view of the evidence supported a conviction.

The motion for rehearing also disapproves of the opinion’s holding on the independent prosecutor issue.

Contempts are among the most difficult issues faced by a trial court. Although this case involves criminal contempt, one member of this panel has seen the greatest abuses in civil contempt cases, which do not carry the constitutional protections of criminal contempt. This case was not the typical case and hard cases make it difficult to fashion a general rule. In 'many criminal contempt cases where the attorney for the moving party is appointed to “assist” the court under Rule 3.840(b), the attorney’s involvement amounts to nothing more than calling witnesses, conducting examinations, and making argument at a contempt hearing; such involvement assists a judge who might otherwise handle the hearing “without assistance of counsel,” and be in the difficult position of both a “quasi” prosecutor and judge, a situation sanctioned by contempt jurisprudence. Fla. R. Crim. P. 3.840(b). When conducted in this way, the contempt proceeding is similar to other problem-solving exercises where the.primary issues are how to rectify violations of a court order and how to secure future compliance with it.

There is a great difference between an “appointed” prosecutor who develops facts to support a finding and one who misuses the appointment for injustice and oppression. The record in this case contains facts which support the latter conclusion, and events related in the motion for rehearing filed by Mr. Gordon indicate that this conduct continues. Unlike a state attorney who is responsible to all the voters in a circuit, an attorney appointed under rule 3.840(b) has a constituency of one— the judge who made the appointment. This case did not review a trial court’s refusal to remove an abusive and oppressive prosecutor; it addressed the question of whether appointment of a party’s attorney to organize and present evidence at a criminal contempt at a hearing was barred in all cases. Nothing in this opinion precludes or prejudges a motion in the circuit court to remove the appointed prosecutor in this case.

The motion for rehearing is denied.

.WARNER and POLEN, JJ., concur.


text:
    John J. CARROLL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2104.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.
    Rehearing Denied Nov. 1, 2007.
    John J. Carroll, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before. GREEN, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Appellant John J. Carroll, pro se, appeals a circuit court order denying his petition for writ of habeas corpus and motion to correct illegal sentence. We affirm-both because both the petition and motion were facially insufficient and because they were successive and time-barred. Thomas v. State, 949 So.2d 319 (Fla. 3d DCA 2007).

Affirmed.


text:
    Pilar BANOS-HILL, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 3D07-1533.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.
    Pilar Banos-Hill, in proper person.
    John D. Maher, Tallahassee, for appel-lees.
    Before GERSTEN, C.J., and WELLS, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002).


text:
    Efrain ESPINOSA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2113.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.
    Karina Acevedo, Coral Gables, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002); State v. Oakley, 715 So.2d 956 (Fla. 4th DCA 1998).


text:
    Larry PALMER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2175.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.
    Rehearing Denied Nov. 1, 2007.

      Larry Palmer, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GREEN, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

The appellant’s prior motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850 was denied by the sixteenth judicial circuit on June 2, 2006, and his appeal from that order was affirmed on the merits by this Court on December 27, 2006. Palmer v. State, 946 So.2d 28 (Fla. 3d DCA 2006). The “second amended motion” therefore is barred as successive, and it was correctly dismissed under Florida Rule of Criminal Procedure 3.850(f). See Frazier v. State, 898 So.2d 1183, 1184 (Fla. 3d DCA 2005). Affirmed.


author: KLEIN, J.

text:
    Jose MENA, Appellant, v. Liliana MENA, Appellee.
    No. 4D06-5025.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.
    Rehearing Denied Nov. 19, 2007.
    Richard J. Winkis of Richard J. Winkis, P.A., West Palm Beach, for appellant.
    No brief filed for appellee.
   KLEIN, J.

Appellant pays child support for five children, two from his first marriage and three from his second. In this proceeding he was moving for downward modification of child support for the children from his first marriage. He argues that the trial court erred under the guidelines, when the court refused to deduct child support for the subsequent children from his gross income. We affirm.

When appellant’s first wife moved for an upward modification of child support, he responded by seeking a downward modification based on his obligations arising out of his second marriage. For the children of his first marriage, appellant is paying total child support of $1,259 a month. Appellant and his second wife agreed he would pay her child support of $3,323 a month and alimony of $400 a month, making a total obligation of $3,723 a month. This agreement is incorporated in a court order.

Section 61.30(3)(f), Florida Statutes (2005) provides that “court-ordered support for other children which is actually paid” is an allowable deduction from gross income for purposes of determining child support. Leaving aside the applicability of the statute, which is the entire basis of appellant’s argument, his problem is that, at the time he agreed to pay $3,323 a month in child support for his subsequent children, and $400 a month in alimony to his second wife, his net monthly income was only $4,482. The trial court concluded that the agreement with the second wife was not bona fide, and there is ample evidence to support that finding, since appellant’s child support and alimony payments totaled approximately $5,000, which was more than his net income. In addition, the agreement establishing child support and alimony in connection with the second marriage was made suspiciously close in time to the first wife’s petition seeking an increase in child support.

In Pohlmann v. Pohlmann, 703 So.2d 1121, 1125 (Fla. 5th DCA 1997), the court affirmed a denial of modification, suggesting that the husband and his second wife had attempted to “manufacture a substantial change in circumstances,” by attempting to use child support for subsequent children to reduce his obligations to the children from his first marriage. We agree with Pohlmann and conclude that the same thing occurred here. We need not reach the question of whether, under section 61.30(3)(f), support for children from a second marriage should be deducted from gross income when considering the downward modification of child support for children from a first marriage. See section 61.30(12), which addresses specific circumstances, and provides in section (12)(c) that in those circumstances support for subsequent children can only be raised in a proceeding for upward modification of support for children of a prior marriage. Pohlmann (section 61.30(12) prescribes a preference for a child protected by an existing child support order over subsequent children of payor parent); Robinson v. Robinson, 657 So.2d 958 (Fla. 1st DCA 1995) (absent special circumstances, subsequent children will not justify deviation from child support guidelines).

Affmned.

WARNER and GROSS, JJ., concur.


text:
    William C. HAUK, Appellant, v. Tina M. BROWN, Appellee.
    No. 3D07-558.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.
    Rehearing Denied Nov. 9, 2007.

      William C. Hauk, in proper person.
    Greenman & Manz and David L. Manz, Marathon, for appellee.
    Before COPE, GREEN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


text:
    KNOWLES AFFILIATES, INC., Appellant, v. The FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Jake Garcia, Appellees.
    No. 3D07-594.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.
    Allen, Norton Blue and York M. Flik, Coral Gables, for appellant.
    John D. Maher, Tallahassee, for appel-lee, Commission.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   WELLS, Judge.

Affirmed. See § 443.036(29), Fla. Stat. (2006) (providing that only willful violations or careless acts of such a degree or recurrence as demonstrate a substantial disregard for an employer’s interests are sufficient to support denial of unemployment compensation benefits for misconduct connected with a former employee’s work); Spink v. Unemployment Appeals Comm’n, 798 So.2d 899, 901-02 (Fla. 5th DCA 2001) (“An employer must show more than an employee’s inefficiency, unsatisfactory conduct, or failure to perform. Inefficiency, unsatisfactory conduct, inability, inadvertence, and ordinary negligence do not constitute misconduct connected with work.... Poor judgment is not misconduct. The failure to follow rules or a violation of the employer’s rules is generally not misconduct, but rather poor judgment.”) (citations omitted); Webb v. Rice, 693 So.2d 1109, 1111 (Fla. 3d DCA 1997) (“Courts should narrowly construe the disqualification provisions [of chapter 443], and should liberally construe the statute in favor of the claimant when determining whether a claimant’s actions constitute misconduct in accordance with its remedial nature.”); Ritenour v. Unemployment Appeals Comm’n, 570 So.2d 1106, 1108 (Fla. 5th DCA 1990) (“Reaching a different conclusion of law from, that of the referee is within the scope of review of the commission.”).


text:
    Scott L. MANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2839.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.
    Rehearing Denied Nov. 19, 2007.

      Scott L. Manley, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s rule 3.850 motion. We conclude that none of the grounds, including those raised in his amended motion, warrant an eviden-tiary hearing. We reject his argument that the trial court, when it denied his motion for rehearing, failed to consider his amended motion. Affirmed.

WARNER, KLEIN and STEVENSON, JJ., concur.


text:
    Abdullah K. RASHEED, Petitioner, v. STATE of Florida or John Rutherford, Sheriff of Duval County, Florida, Respondents.
    No. 1D07-3880.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2007.
    Abdullah K. Rasheed, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DISMISSED. Logan v. State, 846 So.2d 472 (Fla.2003).

BROWNING, C.J., BARFIELD and BENTON, JJ., concur.


text:
    Vernon GOINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3969.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2007.
    Vernon Goins, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Dominguez v. Barakat, 609 So.2d 664 (Fla. 3d DCA 1992).

BROWNING, C.J., BARFIELD and BENTON, JJ., concur.


author: PLEUS, J.

text:
    Enrique PENATE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-2450.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2007.
    Matthew A. Leibert, Orlando, for Petitioner.
    No Appearance for Respondent.
   PLEUS, J.

Enrique Penate seeks second-tier certio-rari review of a circuit court’s decision, entered while sitting in its appellate capacity, which dismissed his appeal for lack of jurisdiction. Because the petition to this Court was untimely filed, we lack jurisdiction, and the petition must be dismissed.

The circuit court’s opinion was rendered May 30, 2007. The certiorari petition to this Court was not filed until July 19, 2007. Florida Rule of Appellate Procedure 9.100(c)(1) requires the petition to be filed within 30 days from the date of rendition.

Petitioner argues that although the circuit court’s opinion was rendered on May 30, 2007, the circuit court did not mail the court’s opinion to Petitioner until the mandate was issued June 20, 2007. Petitioner supports his ai'gument by noting that the opinion itself does not include a “certificate of mailing.” We accept as true that the petitioner did not receive the circuit court’s opinion until June 23, 2007.

Even if this Court accepts the assertions of Petitioner as to the time line, the instant petition must be dismissed with prejudice. Petitioner acknowledges receipt of the circuit court’s appellate opinion on June 23, 2007, which was the 24th day after rendition of the circuit court’s appellate opinion. Petitioner argues that this late receipt of the circuit court appellate opinion did not provide him with “fan- or adequate time to prepare a Writ ... within the jurisdictional time.” There was, however, sufficient time within which to file a timely (albeit “bare bones”) petition for writ of certiora-ri, while requesting an immediate extension of time from this Court within which to amend his petition based on the circumstances surrounding his receipt of the opinion. While not an ideal scenario, Petitioner clearly had sufficient time to file the instant petition within 30 days from the rendition of the opinion.

This Court has required a similar standard from pro se litigants. In Neal v. State, 915 So.2d 746 (Fla. 5th DCA 2005), this Court dismissed the appellant’s rule 3.850 appeal as untimely because the appellant had failed to file a timely motion for rehearing in the lower court, thus, his time for filing a notice of appeal was not tolled. This Court noted the appellant’s argument in Neal, that he did not receive the trial court’s order until there were only six days (of the normal 15 days) remaining to file the motion for rehearing. This Court stated in response to the appellant’s argument that even though the order may have been received late, it “was still within the fifteen-day period for filing a motion for rehearing.” Id. at 747. Accordingly, this Court dismissed Neal’s appeal.

We have considered Cohen v. Majestic Distilling Co., Inc., 765 So.2d 276 (Fla. 4th DCA 2000), and find the opinion in Cohen demonstrates that the appellant never received a copy of the relevant order in those proceedings and therefore could not file a timely notice of appeal. See id. at 277-278. Conversely, in the instant case, not only did Petitioner receive a copy of the circuit court’s opinion, he received it within a sufficient period of time to file a timely petition for writ of certiorari.

For the foregoing reasons, the petition is dismissed with prejudice.

DISMISSED.

LAWSON and EVANDER, JJ., concur.