author: SHAHOOD, J.

text:
    STATE of Florida, Appellant, v. Joshua OLAVE, Appellee.
    No. 4D06-2889.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellant.
    No appearance for appellee.
   SHAHOOD, J.

The State of Florida appeals the trial court’s ruling granting Joshua Olave’s motion to suppress evidence he alleges was illegally obtained as the result of custodial interrogation. We reverse.

Officer Guy Prosper (“Prosper”) of the Coral Springs Police Department was working the evening shift as a patrol officer at around 11:00 p.m. when he observed a white van with the taillight out. Prosper stopped the van which was being driven by Olave.

Prosper asked Olave for his driver’s license and Olave provided it. Prosper ran a check of the license by radio and the status of the license came back restricted to “business purposes only.” Prosper inquired if Olave was on his way to work, and Olave said he was on his way to Port St. Lucie. Prosper asked if Olave was going to work, and Olave said that he worked the next day at one o’clock. Officer Matthew Brilakis (“Brilakis”) arrived as backup. Prosper informed Brilakis that he had stopped Olave for the taillight violation. He also told Brilakis about the license restriction.

Prosper asked Olave to step out of the van and stand alongside the road with Brilakis. Prosper testified he did this for safety reasons. Prosper left Olave talking with Brilakis while Prosper went back to his squad car to further check the status of Olave’s driver’s license by running it through a computer. As Prosper returned, he heard Brilakis ask appellant if he had any drugs or weapons in his pockets. Olave responded that he had some pills in his pocket. Brilakis asked Olave if Olave would consent to a search of his person. Olave consented. Brilakis found one and one-half pills of Xanax in Olave’s left front pocket. Olave was not given Miranda warnings prior to Brilakis asking him if he had anything in his pockets.

Olave was cited for the misdemeanors of violation of a driver’s license restriction and driving with defective equipment. He was charged by information with one count of possession of alprazolam.

Olave filed a motion to suppress the statements and evidence obtained as a result of the stop. Olave argued that it was unreasonable for Prosper to have asked Olave to exit his vehicle and that the failure to give him Miranda warnings resulted in an illegal custodial interrogation. The trial court suppressed the evidence. The trial court found that Olave was “clearly detained” when Prosper asked him to exit the vehicle, the consent given to Brilakis was not voluntary, and the resulting search was illegal.

It is axiomatic that the trial court’s ruling on a motion to suppress is presumed correct; therefore, the reviewing court’s task is to interpret the evidence, including reasonable inferences, in the manner most favorable to sustaining the trial court’s ruling. McNamara v. State, 357 So.2d 410 (Fla.1978); Porter v. State, 765 So.2d 76, 77 (Fla. 4th DCA 2000).

The initial stop of Olave for driving with a broken taillight was proper and was not contested. See State v. Breed, 917 So.2d 206, 208 (Fla. 5th DCA 2005). In addition, Prosper did not violate the Fourth Amendment by asking Olave to exit his vehicle. Florida courts have followed the holding of the United States Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), that police may ask drivers to exit their vehicles as a matter of routine procedure for police safety during traffic stops. See, e.g., Breed, 917 So.2d at 208; Moore v. State, 874 So.2d 42, 43 (Fla. 2d DCA 2004).

In Hewitt v. State, 920 So.2d 802, 803 (Fla. 5th DCA 2006), Orlando Police legally stopped Hewitt’s car for a traffic violation. The officer conducting the stop asked for Hewitt’s driver’s license, and Hewitt admitted she was driving without a valid license. Id. at 803. The officer asked Hewitt to step out of her car, which Hewitt did. “For officer safety reasons, [Officer] Peek asked Hewitt if she had a gun, knives or drugs on her person. Hewitt started crying and said she had some ‘weed’ on her.” Id. The officer retrieved the marijuana, arrested Hewitt, and conducted a search incident to arrest that also revealed cocaine. Id. The trial court denied the motion to suppress. Id. at 804.

The Fifth District upheld the trial court’s ruling, reasoning that “[t]he critical question then is whether, at the time Officer Peek initiated questioning, Hewitt was merely being temporarily detained pursuant to a routine traffic investigation or had been ‘subjected to treatment’ to the extent her freedom of action was curtailed to a degree associated with formal arrest.” Id. The court held that Hewitt was not under arrest because a reasonable person in her situation would not' have believed they would be arrested merely for driving without a valid driver’s license. Id. at 805; see also State v. Dykes, 816 So.2d 179, 180 (Fla. 1st DCA 2002)(reversing grant of motion to suppress responses to questioning where police pulled Dykes over for routine traffic stop and one officer briefly questioned him while other officer wrote traffic citation, on basis that roádside questioning alone does not trigger Miranda warnings).

As in Hewitt, police in this case pulled over Olave for a valid reason and then discovered another possible violation that provided a legitimate reason to detain and further investigate. The trial court found that the encounter turned into an investigatory stop. Like the Fifth District in Hewitt, we find that this did not prevent the police from asking Olave questions without giving Miranda warnings. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); United States v. Shabazz, 993 F.2d 431, 436 (5th Cir.1993)(holding that because mere questioning is neither a search nor a seizure, an officer does not violate Fourth Amendment by asking questions unrelated to the traffic stop so long as traffic stop is not unduly prolonged as a result); State v. Poster, 892 So.2d 1071, 1072 (Fla. 2d DCA 2004); Dykes, 816 So.2d at 180: We conclude that Olave was not subjected to custodial interrogation and his admission that he possessed Xanax provided probable cause to search him.

Based on the foregoing, we reverse the order granting Olave’s motion to suppress evidence and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

STEVENSON, C.J., and KLEIN, J., concur.


source: Caselaw Access Project

author: SCHWARTZ, Senior Judge.

license: Public Domain

text:
    BANK OF AMERICA N.A., Appellant, v. Michele L. EVANS, Appellee.
    No. 3D06-1458.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Foley & Lardner and John R. Hamilton and Christi R. Adams, Orlando, for appellant.
    Ginsberg & Schwartz, Miami, and Todd R. Schwartz, Pembroke Pines; Cohen & Owens, for appellee.
    Before WELLS and CORTIÑAS, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Bank of America, the issuer of a credit card, appeals from the denial of its application for arbitration of a dispute with a cardholder. We affirm.

The basis of the trial court’s ruling on the issue was the determination that the cardholder, Ms. Evans, had never received the “Agreement” which purportedly contained the arbitration clause. Because Ms. Evans’ unequivocal denial of having received such a contract created an issue of fact on that question, notwithstanding the rebuttable presumption of receipt which arose from corporate testimony as to the issuer’s practice of including the “Agreement” whenever it sent the card itself to its customer, we cannot interfere with the trial judge’s resolution of the issue in favor of the appellee. See Rich ardson v. Chase Manhattan Bank, 941 So.2d 435, 437 (Fla. 3d DCA 2006); Aries Ins. Co. v. Cayre, 785 So.2d 656, 660 (Fla. 3d DCA 2001); Best Meridian Ins. Co. v. Tuaty, 752 So.2d 733, 737 (Fla. 3d DCA 2000); W.T. Holding, Inc. v. State Agency for Health Care Admin., 682 So.2d 1224, 1225 (Fla. 4th DCA 1996); Scutieri v. Miller, 584 So.2d 15, 16 (Fla. 3d DCA 1991).

Bank of America’s fall-back position is that even if the agreement had not been received, Ms. Evans admitted use of the card obligated her to the arbitration clause anyway. It makes no sense, however, and there is no authority that one may be bound by an “agreement” of which she is unaware or becomes so by using the credit card when she has no notice or reason to know that it will have such an effect. See Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999); Gustavsson v. Washington Mut. Bank, 850 So.2d 570 (Fla. 4th DCA 2003); see also Barker v. Trans Union LLC, 2004 WL 783357 (N.D.Ill. Jan. 23, 2004)(noting that arbitration agreement would be unenforceable if purported cardholder never received amendment adding arbitration provision); cf., e.g., Battels v. Sears Nat’l Bank, 365 F.Supp.2d 1205, 1213-15 (M.D.Ala.2005) (holding that cardholder is bound by arbitration agreement upon factual determination that she received it and that subsequent use of card demonstrates assent). To determine otherwise would be bootstrapping in the extreme, because the only writing which provides that the use of the card commits the holder to its terms, in-eluding arbitration, is the unseen agreement itself.

Affirmed.

      . At the hearing, the judge stated:
      THE COURT: I think the crux is she's not disputing she didn’t receive the card. The crux is she didn’t receive the agreement, which if she didn’t receive the agreement — and mistakes are made, because technology — human people run these — operate these machines — she didn't have the opportunity to review this agreement. I don't know, maybe she would have — I can’t second guess — maybe she would have still used the card anyway.
      But I have — I have Miss Evans who is saying, through affidavit or through her own self statement, that she never received the agreement. I also have your representative here who is telling me that mistakes happen. She is agreeing that she got the card, obviously, but she said that she never received the agreement. And mistakes do happen, as far — and even you said that they’re not — there is not always watchdogs over people in sending out complete mailings.
      So sometimes things are left out of the envelopes, right?
      MS. MICHAUD [Bank of America corporate representative]: Well, we don’t have Bank of America people on site 24-7, obviously. That’s why we have the quality control procedures in place.
      THE COURT: Right. Okay. So at this time I am going to deny the stay.

      . In Scutieri, 584 So.2d at 16, this court stated:
      Defendant correctly states that proof of mailing raises the presumption that the mail was received. Defendant then quotes that part of Scott v. Johnson, 386 So.2d 67 (Fla. 3d DCA 1980), which states that "this presumption is not overcome by a denial, even though sworn, that the order was not received.” Id. at 69. Defendant interprets this language to mean that the certificate of service is conclusive and that the presumption of receipt is irrebuttable. That is not so.
      This court has recently explained:
      The certificate of service on the subject order was prima facie proof that the said order was mailed to plaintiff’s counsel, and proof of such mailing created a presumption (although not an irrebuttable one) that plaintiff’s counsel received the order in the mail; on the other hand, the plaintiff's affidavits filed below constituted some evidence that the subject order was not received in the mail by plaintiff's counsel. It therefore became a question of fact as to whether plaintiff's counsel had received the subject order in the mail....

        World on Wheels of Miami, Inc. v. Int’l Auto Motors, Inc., 569 So.2d 836, 837 n. 1 (Fla. 3d DCA 1990). In other words, the denial of receipt does not automatically overcome the presumption but instead creates a question of fact which must be resolved by the trial court.


author: HAZOURI, J. GUNTHER, J.,

text:
    Rocio GARCIA, a minor, by and through her parent and best friend, Laura GARCIA, and Laura Garcia and Armando Garcia, her parents, Appellants, v. CITY OF HOLLYWOOD, a political subdivision of the State of Florida, Appellee.
    No. 4D06-970.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.

      Arnold R. Ginsberg of Ginsberg & Schwartz, Miami, and Marcos A. Gonzalez, Coral Gables, for appellants.
    Daniel L. Abbott, City Attorney, and Tracy A. Lyons, Assistant City Attorney, Hollywood, for appellee.
   HAZOURI, J.

Rocío Garcia, a minor, by and through her parent and best friend, Laura Garcia, and Laura Garcia and Armando Garcia, her parents (“Garcia”), appeal a final summary judgment entered in favor of the City of Hollywood (“City”). This case involves personal injuries sustained by the minor, Rocio Garcia, who as a pedestrian was struck by a vehicle owned by the City and operated by one of its police officers, Sergeant Norris Redding (“Sergeant Red-ding”). The trial court concluded that at the time of the accident in question, Sergeant Redding was not acting in the course and scope of his employment with the City, and therefore the City was not liable as a matter of law. We conclude that there were issues of fact to be resolved by a jury as to whether Sergeant Redding was acting within the course and scope of his employment. We therefore reverse and remand for further proceedings.

The accident in question occurred at approximately 6:00 a.m. on May 19, 2004. At that time, Sergeant Redding was driving to work in a marked “take-home” vehicle owned by his employer, the City. Sergeant Redding testified that the “take-home” policy provided that the vehicle could be driven to and from work. On the morning of the accident, Sergeant Redding was driving to work from home on the route that he had been taking on a daily basis for five or six years. As he was driving that morning, he struck and seriously injured the minor Garcia as she attempted to cross a roadway in an effort to reach her school bus. Sergeant Redding’s shift was to begin at 7 a.m. and he was going to work early that morning to study for the Lieutenant’s exam which was to take place several months later.

The vehicle “take-home” policy was part of the Collective Bargaining Agreement between the Broward County PBA and the City which provided in part that the purpose of the vehicle “take-home” policy was to provide the appearance of additional police presence. Sergeant Redding’s supervisor, Major Frank McGarry, testified that “take-home” vehicles are part of the City’s employment package and are “only permitted to be used portal to portal or for off-duty details.” McGarry testified that if a police officer is going to or from home in a police vehicle and witnesses a crime being committed, the officer must stop and take action. The officer must also be dressed in uniform and armed when operating a police vehicle.

Garcia argues on appeal that the trial court committed reversible error in granting Defendant’s Motion for Final Summary Judgment because the facts of this case demonstrate the existence of genuine issues of material fact as to whether Sergeant Redding was acting within the “course and scope of employment” at the time of the accident. “The standard of review of an order granting summary judgment is de novo.” Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). The party moving for summary judgment has the burden of proving the absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (citations omitted).

Garcia asserts a jury issue exists regarding the “course and scope of employment” because (1) at the time of the accident, Sergeant Redding was operating a vehicle provided to him by his employer to be used only for transportation to and from work, (2) the “take-home” vehicle was part of the City’s employment package, and (3) Sergeant Redding was required to be in uniform while operating the vehicle.

The City argues in response that the trial court properly granted its motion for summary judgment as a matter of law because the uncontradicted testimony established that Sergeant Redding had yet to begin work when the accident occurred and was driving to work a full hour prior to the start of his shift. Thus, Sergeant Redding was not acting within the course and scope of his employment at the time of the accident. Furthermore, the City argues that although Sergeant Redding was driving a City-owned police vehicle, the ownership of the vehicle cannot impute liability against the City under the guise of the dangerous instrumentality doctrine as sovereign immunity had not been waived to invoke such liability.

The statute at issue in this case is section 768.28(1), Florida Statutes (2004), which provides:

In accordance with s.13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act....

The Florida Supreme Court determined that section 768.28, Florida Statutes, does not make the dangerous instrumentality doctrine applicable to the State of Florida as “there was clearly no legislative intent to hold the state vicariously liable by the enactment of section 768.28.” Rabideau v. State, 409 So.2d 1045, 1045 (Fla.1982). The supreme court stated, “Any waiver of sovereign immunity must be clear and unequivocal.” Id. at 1046 (citations omitted).

In addition to holding that the dangerous instrumentality doctrine did not apply, the supreme court affirmed the trial court’s entry of summary judgment in favor of the state on grounds that the employee was not acting within the scope of his employment at the time of the accident, even though he had twenty-four-hour-a-day custody of the state vehicle. Id. The supreme court concluded by holding that “twenty-four-hour assignment of a state-owned vehicle to a state employee does not enlarge state liability under section 768.28 to include acts committed outside the employee’s scope of employment.” Id. (emphasis added). However, Rabi-deau is distinguishable from the instant case. In Rabideau, the state employee had stopped working for the day at approximately 5:30 p.m. and then drove to a bar where he consumed six or seven drinks before leaving at 9:30 p.m. Id. at 1045-46. While on his way home from the bar and driving a state-owned vehicle, he hit the plaintiffs. Id. In this case, the accident occurred as Sergeant Redding drove the vehicle to the police station an hour before his shift started in order to study for his Lieutenant’s exam.

Section 768.28(1) specifically provides that a waiver of immunity occurs only if the employee is “acting within the scope of [his or her] office or employment. ...” Curtis v. Bulldog Leasing Co., 513 So.2d 238, 239 (Fla. 4th DCA 1987). Conduct is within the scope of an employee’s employment when it is the type of conduct he or she is employed to perform, it occurs substantially within authorized space and time limits, and it is activated at least in part by a purpose to serve the employer. Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381, 385 (Fla. 4th DCA 1999) (citations omitted).

The City argues that this court’s decision in Craft v. John Sirounis & Sons, Inc., 575 So.2d 795 (Fla. 4th DCA 1991), establishes that Sergeant Redding was not acting within the course and scope of his employment at the time of the accident. In Craft, this court affirmed the trial court’s order entering final summary judgment in favor of the defendants in a negligence action. Id at 796. The record showed that the plaintiff got into a barroom brawl with four “off-duty” police officers in the early morning hours. Id. “None of the officers was in uniform, carrying a gun, or wearing a badge.” Id. This court determined that the conduct of the officers was not within the scope of their employment and affirmed the summary judgment in favor of the employer cities. Id. This court reasoned that the conduct of the officers was (1) not the type of conduct that the officers were hired to perform, (2) the conduct did not occur within the time and space limits authorized or required by the work to be performed, and (3) the conduct was not activated by a purpose to serve the employer. Id.

Although Sergeant Redding in this case was also considered “off-duty,” he was on his way to the police station an hour before his shift started to study for the Lieutenant’s exam, in contrast to the officers in Craft who were drinking at a bar in the early morning hours. In addition, Sergeant Redding’s conduct could satisfy the three requirements set forth in Salit to be considered within the scope of his employment. Driving from home to work in a marked police vehicle, while in uniform, and subject to the requirement that he take police action if necessary, qualifies as the type of conduct he was required to perform. Also, the conduct, which occurred only an hour before his regular shift began, occurred substantially within the authorized or required time and space limits. Further, driving to work to study for an exam in order to be promoted to a Lieutenant, and then to begin his shift, is activated by a purpose to serve his employer.

In her dissent, Judge Gunther relies upon Palm Beach County Sheriff's Office v. Ginn, 570 So.2d 1059 (Fla. 1st DCA 1990). We find Ginn distinguishable. In Ginn, the First District reversed the order of the judge of compensation claims which found that the injuries of the claimant law enforcement officer were incurred at a time when the claimant was acting within the course of his employment. Id. at 1060. Claimant, a Palm Beach County deputy sheriff, was off-duty and on a personal errand within the county when he was injured in an automobile accident. Id. As a fringe benefit of his employment, he had been provided the sheriffs office vehicle, which he was allowed to use on personal business and which he was driving at the time of the accident. Id. The First District reversed, finding that the claimant, although fully prepared to be called on duty, was not in the process of carrying out any “primary responsibility, which is the ‘prevention or detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.’” Id. at 1060.

Again, by contrast, Sergeant Redding was not on a personal errand, but rather was driving to work to prepare for an upcoming exam to be promoted to a Lieutenant. This certainly could be considered evidence of conduct activated at least in part by a purpose to serve his employer. We therefore reverse the granting of the final summary judgment and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

POLEN, J., concurs.

GUNTHER, J., dissents with opinion.

GUNTHER, J.,

dissenting.

I respectfully dissent.

The majority concludes that the trial court erred in entering summary judgment for the City of Hollywood (the City) because Sergeant Redding was acting in the course and scope of his employment when the marked police “take-home” vehicle he was driving struck the plaintiff. After considering the undisputed facts of this case, I conclude that Sergeant Redding was not acting within the course and scope of his employment, and therefore, the summary judgment entered in favor of the City should be affirmed.

I find support for my conclusion in Palm Beach County Sheriff’s Office v. Ginn, 570 So.2d 1059 (Fla. 1st DCA 1990). In Ginn, the First District reversed the order of the judge of compensation claims which found that the injuries of the claimant law enforcement officer were incurred at a time when the claimant was acting within the course and scope of his employment. Id. at 1060. The claimant, a Palm Beach County deputy sheriff, was off-duty and on a personal errand within Palm Beach County when he was injured in an automobile accident. Id. As a fringe benefit of his employment, he had been provided with a sheriffs office vehicle, which he was allowed to use on personal business and which he was driving at the time of the accident. Id. Prior to the accident, claimant had been monitoring the police radio in the vehicle, in the event that he might be called on duty to assist with some law enforcement matter. Id. Additionally, claimant was wearing a beeper at the time of. the accident, which he was required to possess and monitor at all times as a member of the sheriffs office emergency field force. Id. In finding that the claimant was not acting within the course his employment, the First District held:

The fact that a law enforcement officer is on call for duty and has a police radio and other indicia of his authority in his possession is not dispositive in determining whether an off-duty officer is acting within the course of his employment. Rather, the issue, pursuant to the provisions of Section 440.091, is whether the officer is carrying out his primary responsibility, which is the “prevention or detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.”

Id. The court concluded that although the claimant was fully prepared to be called on duty, he was not actually on duty when the accident occurred. Id. at 1061. He was not in the process of carrying out any “primary responsibility” as delineated by Section 440.091, Florida Statutes. Id.

Similarly, at the time of the accident, Sergeant Redding was not in the process of carrying out a “primary responsibility” of his job as a police officer. He was not engaged in the “prevention or detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the State.” Rather, at the time of the accident, which occurred around 5:57 a.m., Redding was off-duty and made the personal decision to go to work an hour before his shift started at 7:00 a.m. to study for an upcoming lieutenant’s exam. He was not furthering any interest of his employer or performing any duties of his employment. There was also no evidence presented that he was following any direction of his employer to come to work earlier than his normally-scheduled horn’s. He was simply in transit to the police station an hour before he was required to report for work.

As such, I conclude that Sergeant Red-ding was not acting within the scope and course of his employment at the time of the accident. Thus, I would affirm the trial court’s order entering summary judgment in favor of the City.

      . Employee was an investigator for the Secre-taiy of State’s Office.


author: PER CURIAM.

text:
    Thomas L. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1612.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Thomas L. Scott, appeals his conviction and sentence for possession of cocaine and possession of marijuana less than 20 grams. These charges arose from a traffic stop due to a violation of the Palm Beach County curfew ordinance issued after Hurricane Wilma. Scott argues on appeal that the trial court erred in denying his motion to suppress, which alleged, inter alia, that the stop was illegal, as the curfew ordinance was unconstitutional and enacted without lawful authority. We affirm, finding no merit in Scott’s position.

Affirmed.

GUNTHER, POLEN and HAZOURI, JJ., concur.


text:
    Santiago MENDOZA, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2085.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

This appeal is from an order denying a motion filed under Rule 3.850, Florida Rules of Criminal Procedure. However, as discussed below, the order was not final. Therefore, we dismiss without prejudice for lack of jurisdiction.

In an October 7, 2003 order, the trial court granted Santiago Mendoza an evi-dentiary hearing on claim six (counsel’s failure to challenge identification) and claim seven (counsel’s failure to call witnesses) of his initial motion. The record shows that claim seven was subsequently waived by appellant. On June 14, 2005, appellant filed an amended motion claiming newly discovered evidence. An eviden-tiary hearing was granted on the newly discovered evidence claim, and the claim was subsequently denied after a hearing. However, a hearing concerning the remaining claim of appellant’s initial motion has not occurred. Defendant continues to await an evidentiary hearing concerning claim six of his initial motion. Because the order on the initial motion is not yet final, this appeal is premature.

Based on the current status of the case in the court below, all judicial labor of the trial court has yet to be performed because the evidentiary hearing has not been held. As such, this case is not clothed with the finality required to invoke this court’s appellate jurisdiction. See Smith v. State, 670 So.2d 1181 (Fla. 4th DCA 1996); White v. State, 450 So.2d 556 (Fla. 2d DCA 1984).

We dismiss this appeal, without prejudice, for a lack of jurisdiction. Appellant may re-file once the case has reached finality in the court below.

GUNTHER, FARMER, and SHAHOOD, JJ., concur.


author: ALTENBERND, Judge.

text:
    Ninoska MEJIA, Appellant, v. Michael SANTANA, Appellee.
    No. 2D06-1570.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2007.
    Scott Paul Davis and Kendra R. Davis of The Davis Law Group, P.A., Tampa, for Appellant.
    Carlos A. Ramirez of Escobar, Ramirez & Associates, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

Ninoska Mejia appeals a final judgment of paternity which awarded Michael Santana, the father, primary residential responsibility of the child, required Ms. Mejia to pay child support of $515 per month, and required Ms. Mejia to obtain or maintain life insurance for the benefit of the child. We find no abuse of discretion in the trial court’s custody determination and thus affirm that portion of the judgment without further comment. We reverse the amount of child support awarded and the provision regarding life insurance and remand for the trial court to reconsider these provisions.

As often occurs in a contested custody case, the parties and court focused their attention at trial on the best interests of the child and the potential custody arrangements that would best serve the child’s interests. The financial issues regarding child support and other related provisions were given relatively short shrift by the parties, in part because certain variables depended upon the custody determination. As a result, at the conclusion of the trial the court attempted to craft an appropriate child support award from the parties’ financial affidavits without additional evidence on this issue.

Although it appears the parties’ financial affidavits provided accurate calculations of their respective net monthly incomes, they did not provide reliable figures for the child’s anticipated daycare or health insurance expenses. See § 61.30(7), (8), Fla. Stat. (2005) (requiring court to include in child support calculation seventy-five percent of daycare expenses for the child incurred due to employment, job search, or education and the costs of the child’s health insurance costs). Indeed, because the child was in Ms. Mejia’s primary care when these affidavits were submitted, it is unclear whether the line items on the parties’ respective affidavits reflected actual expenses or anticipated expenses for this child, or if they may have even included expenses related to Mr. Santana’s other children. We therefore reverse the amount of monthly child support and remand for a recalculation of child support based upon competent evidence of the parties’ current net incomes, any daycare expenses for the child related to Mr. Santana’s employment, and the cost of any health insurance for the child.

In addition, although the judgment requires Ms. Mejia to maintain life insurance for the benefit of the child to secure her child support obligation, see § 61.13(l)(c), Mr. Santana concedes that there was no evidence presented at trial regarding whether Ms. Mejia had life insurance available for the benefit of the child or the cost of such insurance. We therefore reverse this provision in the final judgment. See Burnham v. Burnham, 884 So.2d 390, 392 (Fla. 2d DCA 2004) (requiring court to consider the need for life insurance, the cost and availability of such insurance, and the financial impact upon the obligor before imposing obligation to maintain life insurance pursuant to section 61.13). On remand, the trial court can entertain evidence on this issue and revisit the propriety of such a provision.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.


text:
    Marsha ST. GEORGES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-820.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    John Cotrone of the Law Offices of John Cotrone, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm in all respects. However, we remand this case to the trial court for the correction of an uncontested scrivener’s error on the sentencing scoresheet. The trial court is directed to remove the points included for the additional offense of attempted burglary (of a conveyance), as St. Georges was acquitted of that charge. This correction has no impact on the sentence imposed for the primary offense of aggravated assault with a deadly weapon.

Affirmed and Remanded.

GUNTHER, POLEN and HAZOURI, JJ., concur.


author: KLEIN, J.

text:
    Lawrence OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2715.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of battery on a law enforcement officer and resisting an officer with violence. We reverse for a new trial because an officer responding to a dispatch was permitted to testify as to the contents of the dispatch, which were inadmissible hearsay and prejudicial.

Appellant’s convictions arose out of a domestic disturbance call, when appellant resisted Officer Heinrich’s directions and his physical efforts to subdue him. An officer who was called to the scene was allowed to testify that beforehand he had received a dispatch that an “officer that was fighting with a subject on a domestic.” He was further permitted to testify that “officer Heinrich got on the radio, advised he needed assistance, immediate backup, that he was violently fighting with a subject.” Officer Heinrich, who had called for help, also testified in a manner consistent with the hearsay testimony of the officer who was being called to the scene.

It is permissible for an officer to testify that a dispatch occurred, in order to explain police action, but the hearsay contents of the dispatch are inadmissible for the purpose of proving the truthfulness of the information. Conley v. State, 620 So.2d 180 (Fla.1993); Taylor v. State, 845 So.2d 301 (Fla. 2d DCA 2003). We are unable to agree with the state that the hearsay testimony was harmless as cumulative to the testimony of Officer Heinrich, because this was a close case, and Officer Heinrich was the only witness to testify that the appellant had struck him and was being combative.

Two other witnesses testified that appellant had come out of an apartment with his hands in the air, that appellant did not hit Officer Heinrich, and that Officer Heinrich fired his taser at appellant. The issue was whether appellant had attacked Officer Heinrich, justifying the use of the taser, or whether the officer had prematurely used his taser and then attempted to excuse it by claiming that he was attacked first. Under these circumstances we cannot say that the hearsay as to the two dispatches was harmless as being cumulative.

Our conclusion that this requires a new trial makes the other issues raised by appellant moot; however, we note that on retrial the state cannot ask a defense witness, on cross-examination, to read from a transcript of the witness’s 911 call, unless the transcript is authenticated.

Reversed.

HAZOURI and MAY, JJ., concur.


text:
    Marlon CRAWFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1075.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.

      John G. George of John G. George, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction of armed burglary of a dwelling. Along with three others, appellant forced his way into an apartment and robbed its occupants at gunpoint.

We find no error in the admission of the female victim’s testimony that during the burglary appellant held a gun to her head and ordered her to take her clothes off, causing her to fear that she was going to be raped. This evidence was “inextricably intertwined with the acts in issue and showed the general context in which the crime occurred.” Sapp v. State, 913 So.2d 1220, 1226 (Fla. 4th DCA 2005); see Dorsett v. State, 944 So.2d 1207, 1211 (Fla. 3d DCA Dec.20, 2006).

On the Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) issue, Officer Mills’s testimony and the corroborative evidence in the record supports the trial court’s conclusion that the warnings given met constitutional requirements. See Lewis v. State, 296 So.2d 575, 577 (Fla. 1st DCA 1974) (finding sufficient evidence that appellant was adequately warned when officer testified that (1) he had given the warnings to defendant from a Miranda card and (2) he read all the warnings contained on the card); compare Long v. State, 231 So.2d 33, 34 (Fla. 3d DCA 1970) (holding that Miranda requirements were not met where police officer testified that he overheard another officer, who did not take the witness stand, advise the appellant of his Miranda rights. The “testifying officer stated that Miranda rights were read from a ‘Miranda card,’ but the actual card itself was not produced in court nor was it read into the record.”). Moreover, the trial court rejected the Defendant’s testimony that he did not understand the meaning of the warnings read to him. See Duffey v. State, 741 So.2d 1192, 1195 (Fla. 4th DCA 1999).

The final point we address concerns one aspect of the testimony of victim Patrick Drummonds. Drummonds had known appellant for many years and testified that they were “best friends.” Drum-monds testified that he knew that appellant owned a gun. Even if error, we find the admission of this testimony to be harmless.

Affirmed.

WARNER, GROSS and TAYLOR, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Annier LORENZO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2522.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.

    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Annier Lorenzo (“Lorenzo”), entered nolo contendere pleas on six felony cases, expressly reserving his right to appeal the denial of his motions to suppress statements he made to law enforcement. We affirm.

The instant convictions result from an armed robbery of a Tom Thumb convenience store committed on September 5, 2004, an armed robbery of another Tom Thumb convenience store on September 6, 2004, and four separate burglaries of various business establishments. The events that led to Lorenzo’s arrest began when Officer Carballo, who knew Lorenzo’s family, stopped by Lorenzo’s mother’s home to inquire about a van she had for sale. Lorenzo’s mother told Officer Carballo that she was concerned that her son was involved in some robberies and was placing himself in danger. Thereafter, Officer Carballo, accompanied by other officers, went to Lorenzo’s brother’s apartment to speak with Lorenzo. After making contact with Lorenzo, it is undisputed that he agreed to speak to them about the September 5th robbery and to accompany them to the police station where he provided them with further information regarding this robbery. It is also undisputed that at no time during Lorenzo’s discussions with the police, which took place at his brother’s apartment and at the police station on September 13, 2004, was he advised of his rights per Miranda.

Initially, Lorenzo told the police that he was at the Tom Thumb store that evening using the restroom but that he had no knowledge of or involvement in a robbery. After several minutes, however, he asked to speak to Officer Carballo alone. What he told Officer Carballo was that he knew who had committed the robbery. He explained that his friend, Alex Cruz, borrowed his car and had committed the robbery and that Alex had a Russian-made handgun. When asked if he would be willing to accompany them to the station and to give them a more detailed account of the events, Lorenzo willingly agreed, stating that he wanted to “do the right thing.”

Lorenzo was interviewed at the station in an interview room with the door open. He was additionally told that he was not in custody and that he could leave at any time. Lorenzo responded by saying that he understood that he was not in custody and that he wanted to talk to them. These statements and Lorenzo’s acknowledgement that he was aware that he was not under arrest and that he was free to leave were recorded, as were his statements. During this interview, he explained that he went into the Tom Thumb to use the restroom while Alex waited in the car. When he returned to the car, Alex asked him about the clerk. Lorenzo told Alex that the clerk was a female and that she was behind the counter. Alex went into the store. Moments later Alex ran back to the car, threw his gun and some money into the car and told Lorenzo to “go, get out of here!” Based upon these statements and other information provided by Lorenzo, Alex was arrested and charged as a principal to the robbery.

The following day, law enforcement returned to speak with Lorenzo. Before speaking with him, they advised him of his rights per Miranda. After waiving his rights, Lorenzo admitted to committing a second armed robbery and four burglaries, for which he was subsequently charged.

The issues presented in this appeal are: (1) whether Lorenzo’s statements given on September 13, 2004, without the benefit of his Miranda warnings, were the product of custodial interrogation requiring suppression, and (2) whether the statements given on September 14, 2004, after being advised of his rights, and regarding various unrelated crimes, are the fruits of the prior unwarned statement, thus requiring suppression. We answer both questions in the negative, and conclude that the trial court did not err in denying Lorenzo’s motions to suppress his statements.

A trial court’s ruling on a motion to suppress comes before this court with a presumption of correctness. The evidence and all reasonable inferences and deductions derived therefrom, must be interpreted in a manner most favorable to sustaining the trial court’s ruling. San Martin v. State, 717 So.2d 462, 469 (Fla.1998). Miranda warnings are only required for custodial interrogations. California v. Beheler, 463 U.S. 1121, 1124, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). A person is in custody if a reasonable person placed in the same situation would feel that his freedom of action was curtailed to a degree associated with an actual arrest. Ramirez v. State, 739 So.2d 568, 573 (Fla.1999). In the absence of any indicia of coercion or intimidating circumstances, police questioning about criminal conduct or activity alone does not convert an otherwise consensual encounter into a custodial interrogation. Ramsey v. State, 731 So.2d 79, 81 (Fla. 3d DCA 1999).

In the instant case, Lorenzo was repeatedly told that he did not have to speak to law enforcement and that he was free to leave. The tapes of the conversations between Lorenzo and the police demonstrate that he was aware that he was not in custody, was free to leave, did not have to talk to the police, was willing to accompany them to the station, and voluntarily spoke with them on September 15, 2004. Thus, we conclude that the statements Lorenzo made that evening were not the product of custodial interrogation and that the motions to suppress these statements and the subsequent Mirandized statements the following day, were properly denied.

Affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: GREEN, J.

text:
    Eleazar Laroy JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-3225.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.

      Bennett H. Brummer, Public Defender, Miami and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, Orlando and Michele Samaroo, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and LAGOA, JJ.
   GREEN, J.

Eleazar Laroy Johnson appeals from his conviction and imposed sentence for robbery with a firearm after a jury trial. His sole argument on appeal is that during sentencing the trial court improperly considered his lack of remorse and/or culpability when he requested a downward departure sentence as a youthful offender pursuant to section 921.0026(2)(Z), Florida Statutes (2006). We agree and reverse and remand for a new sentencing hearing before a different judge.

Johnson was charged with one count of robbery with a firearm. The charge stemmed from an incident where an elderly couple who was walking on a sidewalk was held up at gunpoint by an African-American male who leapt from the front passenger seat of a car. The African-American male wore a mask and gloves. The only thing taken from the victim was a cell phone. Upon taking the phone, the robber got back into the car which then sped away. The victims noted the car’s license plate number, and the police issued a BOLO for the car. The car was spotted later that evening.

When the police stopped the car, a female driver got out. The male passenger in the front seat ran off and was not apprehended. There was an African-American male in the back seat of the car. A mask and glove were discovered in the car. A gun and a knit cap were later found in a yard nearby.

Later that evening, the police went to Johnson’s home. His parents told the police that he was not there. Johnson later voluntarily went to the police station and was released after speaking with an officer. Johnson was thereafter charged with robbery with a firearm.

After trial, the jury convicted Johnson as charged and found that he possessed a firearm. At sentencing, the scoresheet indicated that Johnson scored a minimum of 48 months in prison, to a maximum of life in prison, with ten years minimum mandatory for possession of a firearm. The pre-sentence investigation (“PSI”) report noted that Johnson had no prior criminal record and recommended that he be sentenced as a youthful offender to two years imprisonment, followed by two years of community control and two years, of probation with certain conditions. .Both Johnson and his counsel requested the court for a downward departure sentence as a youthful offender, section 921.0026(2)(Z), in accordance with the PSI report recommendation. The trial court declined their request for a downward departure sentence as a youthful offender because Johnson failed to acknowledge his culpability for the charged offense. The court sentenced Johnson to twenty years imprisonment with a ten year minimum mandatory term.

On this appeal, Johnson argues that his right to due process was violated when the trial court impermissibly weighed his protestation of innocence in considering his request for a downward departure from the sentencing guidelines as a youthful offender pursuant to section 921.0026(2)(Z). We agree.

It is apodictic that a criminal defendant has the right to maintain his or her innocence and have a trial by jury. See A.S. v. State, 667 So.2d 994, 996 (Fla. 3d DCA 1996) (quoting Holton v. State, 573 So.2d 284, 292 (Fla.1990)); Art. I, § 22, Fla. Const.; U.S. Const, amend. VI. Generally speaking, therefore, a trial court may not hold a defendant’s protestation of innocence against that defendant in either the guilt or penalty phase of the trial. See Soto v. State, 874 So.2d 1215 (Fla. 3d DCA 2004); AS.; Art I, § 9, Fla. Const.; U.S. Const, amend. XIV, § 1. We have said that a re-sentencing is required even if a defendant’s refusal to admit guilt was but one of several factors considered by the court in imposing sentence. See Soto, 874 So.2d at 1217 (although defendant’s unwillingness to admit guilt may not have been the only or even the principal reason or sentence imposed, reversal nevertheless required where it may have been one of the factors considered).

Based upon the comments made by the trial court, it is clear that Johnson’s refusal to acknowledge his guilt in this case improperly factored into the court’s refusal to consider the requested downward departure sentence. See K.N.M. v. State, 793 So.2d 1195, 1198 (Fla. 5th DCA 2001) (defendant has constitutional right not to be penalized during sentencing for maintaining innocence). We therefore vacate his sentence and remand with directions that he be re-sentenced by another judge. See Moorer v. State, 926 So.2d 475 (Fla. 1st DCA 2006). At the new hearing, the judge will consider Johnson’s request for a mitigated sentence and the reasons in support therefore.

Reversed and remanded with instructions.

      . The following colloquy ensued:
      [DEFENSE COUNSEL]: Well, it was indicated that the Court could deviate from the guidelines and sentence Mr. Johnson as a Youthful Offender. And that would be a maximum of six years.
      The recommendation of the PSI is that he have two years in prison, followed by two years of Community Control, and two years of probation, with certain special conditions.
      THE COURT: Why would I do that?
      We are talking about an armed robbery with a firearm where your client doesn't acknowledge any involvement whatsoever in this criminal episode.
      [DEFENSE COUNSEL]: Well—
      THE COURT: I don’t get it.
      [DEFENSE COUNSEL]: Well every case is a story in human failure and how people may choose to handle that failure. But, as the Judge, you have to sometimes look beyond the things that defendants may say in those cases and look for what you really think is going to benefit our society in the long run.
      And so, if you really feel that the person meets your criteria for rehabilitation—
      THE COURT: Let me ask you this. Obviously your client has had all the support that any human could ever want or need.
      [DEFENSE COUNSEL]: Yes.
      THE COURT: And with that, he goes out and commits this highly violent crime, and refuses to acknowledge any involvement, any culpability, pretends that he is an innocent victim.
      I mean, he just doesn't get it. He just doesn't get it.
      Rehabilitate him from what? He has had everything. It isn’t a situation of a man who has had nothing and fails. He had everything and failed. And then pretends that, you know, his situation is a result of the shortcomings of the Criminal Justice System rather than his own. There is nothing to rehabilitate, as I see it. And I could be missing it, but, you know, I don’t know. I try to be as perceptive as I can. I have listened with an open mind. He has a very caring family and support system, and he thinks that this is somebody elses fault.
      Now, with that in mind, is there anything else you want to say before I sentence you?
      [THE DEFENDANT]: I would like to say I understand what you are saying and I'm not pretending to be an innocent victim in this case, Your Honor.
      As you said, I have a very good support system. I'm not that kind of person to rob someone when I had a job, Your Honor. And there is no reason to rob a person if I have a job. I'm going to school.
      THE COURT: I agree with you on that. That is about the only thing I agree with you on so far. You had no reason for robbing this man, this couple.
      [THE DEFENDANT]: But the evidence is what pointed-—
      THE COURT: Huh?
      [THE DEFENDANT]: The evidence—
      THE COURT: I'm utterly convinced you are absolutely guilty, Mr. Johnson. I heard the evidence. There is no question you are guilty. This is not about guilt or innocence. This is a hearing to determine an appropriate punishment for you. And you need to understand that the things that you’ve said suggest to me that there is no reason for cutting you any break whatsoever.
      Now, what else would you like to say?
      [THE DEFENDANT]: That is it.
      [DEFENSE COUNSEL]: May I have a moment?
      THE COURT: You may.
      (Thereupon, the Defense Attorney conferred with the defendant).
      [DEFENSE COUNSEL]: We are ready, Your Honor.
      THE COURT: Have I already adjudicated the defendant guilty?
      [DEFENSE COUNSEL]: I believe at the time of the verdict.
      THE CLERK: Yes.
      THE COURT: I'm going to sentence the defendant to 20 years in prison, ten year mandatory minimum, credit for time served.

      . A statutory exception exists in section 921.0026(2)(j), Florida Statutes (2006), which allows a sentencing court to grant a downward departure sentence to a defendant on the grounds that the offense was committed in "an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” In such an instance, a court may properly consider the defendant's remorse for the offense. See State v. Strawser, 921 So.2d 705 (Fla. 4th DCA 2006); State v. Perez-Gonzalez, 884 So.2d 1031 (Fla. 3d DCA 2004). The record before us, however, reflects that Johnson and his counsel never sought a mitigated sentence pursuant to this subsection. Rather, they sought a downward departure sentence as a youthful offender solely pursuant to section 921.0026(2)(Z).


author: GREEN, J. COPE, C.J.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. M.A. & F.H. PROPERTIES, LTD., Appellee.
    No. 3D06-1278.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.

      Wadsworth & King and Lawrence E. Root, for appellant.
    Feiler & Leach, P.L. and Martin E. Leach, Coral Gables, for appellee.
    Before COPE, C.J., and GREEN, and LAGOA, JJ.
   GREEN, J.

Citizens Property Insurance Corporation (“Citizens”) appeals a non-final order denying its Florida Rule of Civil Procedure 1.540 motions seeking to vacate an order confirming an appraisal award; vacate the appraisal award, compel a reappraisal; and its renewed motion to disqualify the appellee homeowner’s appraiser because of his bias against Citizens. We find no abuse of discretion in the denial of the motions and affirm.

The appellee, M.A. & F.J. Properties, Ltd. (“homeowner”), purchased a wind insurance policy from Citizens for its three-story home. During the effective period of the policy, the home sustained damage from Hurricane Charley on August 13, 2004. The homeowner submitted a claim for damage under the policy. Citizens investigated the claim and, as a result of its investigation, tendered payment to the homeowner in the amount of $262,325.93. The homeowner disagreed with this valuation of its loss and invoked the appraisal process contained in the policy. According to this process, each party was to select a competent appraiser of its choosing and the two appraisers would attempt to agree upon a valuation of the insured’s loss. If the two appraisers were unable to reach an agreement, they would then attempt to select a competent and independent umpire. If within fifteen days, the two appraisers could not agree upon an umpire, the parties could request a judge to select the umpire. Specifically, the language of the appraisal provision of the policy reads as follows:

10. Mediation or appraisal
b. Demand an appraisal of the loss. In this event, each party will choose a competent appraiser within twenty (20) days after receiving a written request from the other. The two appraisers will choose a competent and independent umpire. If they cannot agree upon an umpire within fifteen (15) days, you or we may request the choice be made by a judge of a court of record in the state where the Described Property is located. The appraisers will separately set the amount of the loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of the loss. If they fail to agree, they will submit their differences to the umpire. A decision by any two will set the amount of the loss.

(Emphasis added).

Pursuant to this provision, the homeowner selected Jeffrey Pellett and Citizens selected Stephen White. The homeowner’s appraiser, Mr. Pellet, has had experience with more than 1800 appraisals and has been published in the field of appraisals. Mr. Pellet and the homeowner entered into an agreement whereby he would be compensated for his services based upon the amount awarded from Citizens. It is undisputed that Citizens was aware of this contingency arrangement. Citizens claims, however, that it was unaware that at the time of Mr. Pellet’s appraisal in this cause, Mr. Pellet and his wife had filed a suit against Citizens for alleged damages to their home and were also represented in this suit by counsel for the homeowner in this suit.

When Mr. Pellet and Citizens’ appraiser, Mr. White, could not agree on the valuation of the insured’s loss or on a competent and neutral umpire, the insured petitioned the court to select one, in accordance with the policy’s appraisal provision. The trial court below appointed Martin Kahn, a retired Circuit Court judge, as the competent and neutral umpire.

The parties’ appointed appraisers then submitted their respective appraisal amounts to the umpire. The umpire agreed with the homeowner’s appraisal of the loss as prepared by Mr. Pellet. As required by the policy language, both the umpire and Mr. Pellet signed an award dated March 21, 2006, in the amount of $787,235.01. The homeowner filed a motion for entry of an order confirming the appraisal award. Citizens filed its objection to this motion and moved to vacate the appraisal award and compel reappraisal on the grounds that there were no receipts or supporting documentation to support the award.

Prior to the hearing on the insured’s motion to confirm the award, Citizens filed a motion to disqualify Mr. Pellet as the insured’s appraiser on the grounds that he was not a competent appraiser by virtue of a letter that he had recently sent to Mr. White. Mr. Pellet’s letter informed Mr. White to communicate with him only in writing and that all future appraisals involving Citizens would result in a court-ordered umpire.

After a hearing on the pending motions, the trial court granted the homeowner’s motion for entry of an order confirming the appraisal award and denied Citizens’ motions to vacate the appraisal award and disqualify the homeowner’s appraiser. Thereafter, Citizens filed a renewed motion to disqualify the homeowner’s appraiser, vacate appraisal award and order confirming same and compel reappraisal with a neutral umpire. In addition to reiterating the grounds raised in its previous motion, Citizens asserted that the homeowner’s appraiser was not competent because he failed to disclose his own personal lawsuit against Citizens prior to his appraisal in this case. The trial court denied this motion and Citizens appealed.

Citizens argues on this appeal that the trial court’s denial of its renewed motion to disqualify the homeowner’s appraiser; vacate the appraisal award and to compel re-appraisal with a neutral umpire; and vacate the order confirming the appraisal award constituted an abuse of discretion because the homeowner’s appraiser, Mr. Pellet, was not a competent appraiser as required by the policy. Citizens essentially maintains that Mr. Pellet was rendered incompetent to provide an appraisal in this case by virtue of his personal suit or claim against Citizens as well as his animosity against Citizens and/or its appraiser as expressed in the letter written after the appraisal in this case. We disagree and find that Citizens’ argument is based upon the erroneous premise that this appraiser’s unquestionable personal bias against Citizens thereby rendered him incompetent to serve as an appraiser in this case.

As we have previously recognized, “parties are free by contract to specify the credentials of party-appointed appraisers.” Rios v. Tri-State Ins. Co., 714 So.2d 547, 549 (Fla. 3d DCA 1998) (citing Lee v. Marcus, 396 So.2d 208, 210 (Fla. 3d DCA 1981)(recognizing the contractual ability of parties to place words of limitation on the identity, status, or qualifications of arbitrators)). The language of the appraisal provision contained in the insurance policy in this case directed only that each of the parties select a “competent” appraiser. The policy, however, did not expressly define the word “competent.”

In the absence of a contractual definition, we must presume that this word was intended to be used in its plain and ordinary way as can be ascertained by reference to a dictionary. Winn-Dixie Stores, Inc. v. 99 Cent Stuff-Trail Plaza, LLC, 811 So.2d 719, 722 (Fla. 3d DCA 2002). The dictionary definitions of the word “competent” include “properly or sufficiently qualified or capable; adequate for the purpose; legally qualified or fit to perform an act,” The American Heritage Dictionary 385 (3rd ed.1992), and “duly qualified; answering all requirements; having sufficient ability or authority; possessing the requisite natural or legal qualifications; able; adequate; suitable; sufficient; capable; or legally fit.” Black’s Law Dictionary 257 (5th edition 1979).

Based upon these definitions, the record clearly establishes that the homeowner’s appraiser was competent by virtue of his unquestionable prior experience and/or expertise. Citizens’ real complaint is, however, that this appraiser was not neutral or independent. Contrary to Citizens’ suggestion on this appeal, competence is not synonymous with neutrality or independence. While the policy’s language required that the appraisers selected by the parties be competent, it did not require them also to be neutral or independent. Indeed, the policy language only required that the umpire be both competent and independent.

Thus, because the homeowner’s appraiser was “competent” to render an appraisal in this cause as that term is ordinarily used, we cannot conclude that the trial court abused its discretion in denying the motions under review. We therefore affirm the same.

Affirmed.

COPE, C.J.

(concurring).

If in future cases Citizens wants all three appraisers to be neutral, Citizens can amend its policy form to so provide. See The American Bar Association and American Arbitration Association, The Code of Ethics for Arbitrators in Commercial Disputes, at 2 (2004) (“The sponsors of this Code believe that it is preferable for all arbitrators — including any party-appointed arbitrators — to be neutral, that is, independent and impartial, and to comply with the same ethical standards.”).

      . Citizens' appraiser, Mr. White, declined to sign the award on the grounds that the amount awarded was based upon a cost ledger provided by the homeowner’s appraiser without any supporting receipts or other documentation.

      . In support of its objection and motion, Citizens filed an affidavit from its appraiser, Mr. White.

      . That letter read, in pertinent part, as follows:
      Dear Mr. White:
      This letter is to inform you that you are expressly prohibited from telephonic contact with my office. ALL COMMUNICATIONS SHALL BE REDUCED to writing and facsimile transmission.
      I will be directing a copy of the letter to your principal. All matters involving appraisal assignments will result in Court ordered umpire. I have zero intentions of discussing any negotiations, settlement, scope or unit costs with you EVER! For the record, this letter does not specifically refer to this instant appraisal but any future appraisal assignments where you were appointed by any principal.
      Is there any part of this you are unclear about?


text:
    Bill John MATIAS, Appellant, v. Melissa Ann MATIAS, Appellee.
    No. 2D05-4721.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 2007.

      Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant.
    Mark G. Rodriguez of Mark G. Rodriguez, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

Bill John Mafias, the husband, appeals a final judgment of dissolution of marriage which awarded primary residency of one child to him and primary residency of a second child to the wife, Melissa Ann Mafias; required the husband to pay $184.41 per month in child support to the wife; established a retroactive amount of child support and required the husband to pay $200 per month toward the resulting ar-rearage; and prohibited both parties from relocating the residence of the children beyond a certain geographical area. We find no abuse of discretion in the trial court’s custody determinations and affirm this portion of the judgment. We reverse, however, the provisions for child support and remand for reconsideration. We also reverse the relocation provision and direct the trial court to strike it on remand.

The parties separated in the summer of 2002. At that time, the parties’ son was eight years old and the parties’ daughter was under two years old. By May 2003, when the wife filed the petition for dissolution of marriage, the husband had moved to Naples with the son and the wife remained in Tampa with the daughter. Initially, the wife’s petition sought to maintain this arrangement. As the litigation progressed, however, each party sought primary residence of both children. At the time of trial in August 2005, this arrangement had continued for over three years. A child custody investigator recommended that the children’s best interest would be served by awarding each parent the primary residence of the child already in their primary care, with a visitation schedule that allowed the children to be together each weekend. The trial court ultimately accepted this recommendation and incorporated it into the final judgment.

We recognize the principle that a court should not generally separate siblings as part of a dissolution of marriage absent compelling circumstances to support doing so. See Myrick v. Myrick, 523 So.2d 172 (Fla. 2d DCA 1988) (citing Arons v. Arons, 94 So.2d 849 (Fla.1957)). This principle arises out of a recognition that in many cases, splitting children among divorcing parents “will result in further destruction of what is left, after divorce, of th[e] family unit.” Arons, 94 So.2d at 853. Here, however, the children, now thirteen and six years old, have been separated and living in the primary residence of their respective parents for more than four years. As the child custody investigator and the court recognized, awarding the primary residence of both children to one parent at this point in time would require a major disruption to the life of one child and would not be in that child’s best interest. This case presents compelling circumstances supporting the continued separation of the children, and we certainly find no abuse of discretion in the trial judge’s custody determination. In fact, the visitation schedule implemented by the final judgment will ensure that the siblings retain a close bond despite the split in primary residence because they will be together every weekend.

With respect to the child support, however, we are compelled to reverse. At trial, the parties and the court focused primarily on the custody determination. The detailed evidence necessary to make a proper child support calculation under section 61.30, Florida Statutes (2005), was, in part, overlooked. The trial court’s attempt to calculate an accurate amount of child support based on the limited evidence available was unsuccessful, and the resulting calculation is not supported by competent, substantial evidence. Most notably, there is insufficient evidence to support the findings regarding the husband’s net monthly income, the daycare expenses for the children, and the costs of health insurance and other medical expenses for the children. We therefore reverse the amount of child support and remand for the trial court to readdress the child support based upon the parties’ current financial information.

Because the trial court will be recalculating support on remand, it will have to revisit whether to again award child support retroactive to the date the wife filed her petition for dissolution of marriage. We note, however, two concerns with the retroactive award included in the final judgment. First, the trial court did not consider the evidence that the financial circumstances of the parties and the needs of the children had fluctuated during the substantial amount of time that these proceedings were pending. In this case, the calculation supporting a future child support amount may not be appropriate for retroactive support. Second, it is not clear whether the trial court considered the somewhat unique circumstances of this case in establishing the amount of child support and the monthly payments required toward any retroactive award. The final judgment requires the husband, whose net income is approximately $2000 per month, to pay $184.41 in ongoing child support and $200 per month toward the retroactive arrearage. Because the husband is providing the primary residence for one child, any amounts paid affect that child as well as the child in the wife’s care. Under these circumstances, the court should consider a less onerous payment toward any retroactive amount to ensure the financial security of both children.

Finally, the parties concede that the restrictions on relocation in the final judgment were not sought by either party or supported by the evidence. Indeed, these parties already reside at a distance in excess of these provisions. We therefore direct the trial court to strike this provision from the final judgment on remand. Both parties have acknowledged that the judgment will now be controlled by the provisions of section 61.13001, Florida Statutes (2006).

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and CANADY, JJ., Concur.


author: LaROSE, Judge.

text:
    James HIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1193.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 2007.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

James Higgs appeals his convictions for fleeing to elude at high speed with lights and siren activated (count one), driving while license revoked (count two), reckless driving (count three), and driving with an altered temporary tag (count four). The trial court sentenced Mr. Higgs to five years in prison, concurrent, on counts one and two and to time served on counts three and four. Mr. Higgs argues that the trial court erred in refusing to instruct the jury, on count one, on the permissive lesser included offense of reckless driving. We affirm.

The State argues that Mr. Higgs did not preserve the issue for review. According to the State, he abandoned his request for the instruction. The denial of a jury instruction request is preserved “where the record clearly show[s] that defense counsel requested a specific instruction and the trial court ‘clearly understood the request and just as clearly denied the request.’ ” Carpenter v. State, 785 So.2d 1182, 1199 (Fla.2001) (quoting State v. Heathcoat, 442 So.2d 955, 955-56 (Fla.1983)); Austin v. State, 406 So.2d 1128, 1132 (Fla. 4th DCA 1981). Our record reflects that Mr. Higgs requested a reckless driving instruction for count one and the trial court unequivocally denied the request. Accordingly, the issue is preserved for our review.

Addressing the merits of Mr. Higgs’ claim, we note that

[a] permissive lesser included offense is an offense that may or may not be included in the offense charged depending on the pleadings and the evidence ....
An instruction on a permissive lesser included offense must be given when the pleadings and evidence demonstrate that the lesser offense is included in the charged offense.

Russ v. State, 612 So.2d 688, 689 (Fla. 2d DCA 1993) (citing Amado v. State, 585 So.2d 282 (Fla.1991)); see also Fla. R.Crim. P. 3.510(b). The pleadings and the evidence adduced at trial supported the requested instruction. Nevertheless, the trial court’s refusal to give the instruction does not compel reversal.

In addition to an instruction on the charged offense, see § 316.1935(3)(a), Fla. Stat. (1995), the trial court instructed the jury on the category one included lesser offenses of (1) fleeing to elude a law enforcement officer with lights and siren (§ 316.1935(2)) and (2) fleeing to elude a law enforcement officer (§ 316.1935(1)). See In re Standard Jury Instructions-Criminal Cases (99-1), 765 So.2d 692, 704 (Fla.2000); Fla. Std. Jury Inst. (Crim.); Schedule of Lesser Included Offenses. Reckless driving is three steps removed from the charged offense; the trial court gave instructions on lesser included offenses just one step removed. Because the jury declined to exercise its pardon power by convicting Mr. Higgs of a violation of section 316.1935(2) or section 316.1935(1), the trial court’s refusal to give the requested instruction is harmless. See State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978); Fernandez v. State, 570 So.2d 1008, 1011 (Fla. 2d DCA 1990); Sherrer v. State, 898 So.2d 260, 261-62 (Fla. 1st DCA 2005).

Affirmed.

CANADY, J., and THREADGILL, EDWARD F., Senior Judge, concur.

      . Rule 3.510. On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:

      (b) any offense that as a matter of law is a necessarily included offense or a lesser in-eluded offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.


text:
    Leland V. DAWSON, Jr., Appellant, v. Toni G. DAWSON, Appellee.
    No. 5D05-3529.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2007.
    Wm. Bruce Muench and Jonathan J. Luca, of Law Offices of Muench & Luca, P.A., Jacksonville, for Appellant.
    Charles A. Esposito, of Charles A. Espo-sito, LLC, and Tania R. Schmidt-Alpers of Tania R. Schmidt-Alpers, P.A., St. Augustine, for Appellee.
   PER CURIAM.

Leland V. Dawson, Jr. appeals the trial court’s judgment dissolving his marriage to Toni G. Dawson. We affirm.

In a dissolution proceeding, the trial court possesses broad discretion to do equity between the parties. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980); Doyle v. Doyle, 789 So.2d 499, 501 (Fla. 5th DCA 2001). The standard of review is whether the trial court abused its discretion. Canakaris, 382 So.2d at 1202-03. In reviewing a dissolution judgment, this Court looks at the judgment as a whole in determining whether the trial court abused its discretion. Hamlet v. Hamlet, 583 So.2d 654, 657 (Fla.1991). “It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the evidence. Rather, the test is whether the judgment of the trial court is supported by competent evidence.” Deakyne v. Deakyne, 460 So.2d 582, 583 (Fla. 5th DCA 1984) (citing Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983)). Given the broad discretion afforded the trial court in making child custody decisions and distributing marital property, we find no error.

AFFIRMED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


author: ORFINGER, J.

text:
    PROGRESSIVE EXPRESS INSURANCE COMPANY, Petitioner, v. Donald SCHULTZ, Respondent.
    No. 5D06-444.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2007.
    Rehearing Denied Feb. 23, 2007.

      Betsy E. Gallagher and Michael C. Clarke, of Kubicki Draper, P.A., Tampa, for Petitioner.
    Glenn Klausman, of Jacobs & Goodman, P.A., Altamonte Springs, and Barbara Green, of Barbara Green, P.A., Coral Gables, for Respondent.
    Anthony J. Russo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Amicus, Florida Defense Lawyers Association.
    John S. Mills of Mills & Carlin, P.A., Jacksonville, for Amicus, Academy of Florida Trial Lawyers.
   ON MOTION FOR REHEARING AND CERTIFICATION

ORFINGER, J.

The amended motion for rehearing and certification filed by the respondent, Donald Schultz, is denied. However, we withdraw the opinion issued in this case on October 20, 2006, and substitute the following in its place.

Progressive Express Insurance Company seeks certiorari review of a decision rendered by the circuit court of Seminole County, Florida, acting in its appellate capacity. Progressive contends that the circuit court departed from the essential requirements of law by affirming a county court order awarding attorney’s fees totaling $193,750. For the reasons explained below, we agree and grant the petition for certiorari.

Donald Schultz, a Progressive insured, was injured in an automobile accident. The next day, Mr. Schultz began chiropractic treatment with Dr. Jason Masters. After four months of treatment with Dr. Masters, Progressive elected to have Mr. Schultz examined by Dr. David Bennett, also a chiropractor. After Dr. Bennett concluded that no further chiropractic treatment was reasonable, necessary or related to the accident, Progressive stopped paying PIP benefits, leaving Mr. Schultz with a balance of $1,315.30 owed to Dr. Masters.

At Dr. Masters’s suggestion, Mr. Schultz consulted with attorney Glen Klausman about pursuing a suit to recover for the unpaid chiropractic treatments. Following that consultation, Mr. Schultz retained Mr. Klausman, who then filed a PIP suit in county court, seeking to recover the outstanding chiropractic bills, mileage, attorney’s fees and costs. Following extensive pretrial discovery, the parties settled the bulk of their dispute, leaving only the issue of the amount of attorney’s fees and the appropriateness of a fee multiplier for resolution by the court. After a hearing, at which Progressive conceded Mr. Schultz’s entitlement to attorney’s fees, the county court approved Mr. Klausman’s fee request for 193.75 hours at $400 per hour, resulting in a lodestar fee of $77,500. After the county court approved a 2.5 multiplier, the fee, now set at $1,000 an hour, totaled $193,750.

Progressive appealed the fee award to the circuit court, which affirmed the county court’s judgment. Progressive now seeks certiorari review of the circuit court’s decision, contending that the use of an attorney’s fee multiplier was error and a manifest injustice. Mr. Schultz opposes review, arguing that this case fails to satisfy the high standard necessary for certio-rari review. Because we conclude the fee award, particularly the application of a multiplier, is a manifest injustice, we elect to exercise our discretionary certiorari jurisdiction.

Certiorari review of a circuit court acting in its appellate capacity is only available when the circuit court does not afford procedural due process or departs from the essential requirements of law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995). A departure from the essential requirements of law is more than a simple legal error. “A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). A “clearly established principle of law” can derive from a number of legal sources, including the constitution, statutes, rules of court and controlling case law. Progressive Express Ins. Co. v. Physician’s Injury Care Ctr., Inc., 906 So.2d 1125, 1126-27 (Fla. 5th DCA 2005). In this case, the circuit court departed from controlling statutory and case law in affirming the county court’s fee award.

While it would be easy to characterize this case as a run of the mill PIP dispute, admittedly, it was somewhat more than that. Mr. Schultz’s attorney expended 193.75 hours, a significant amount of time, in a successful effort to undermine the credibility of Progressive’s chiropractic expert. However, it is hardly unusual that one side searches for evidence to impeach or discredit the other side’s expert. The additional work is reflected in the lodestar amount, and, consequently, should have little or no impact on the need for a multiplier.

Underlying our analysis is the premise that both the applicable statute, section 627.428(1), Florida Statutes (2003), and the Rules Regulating the Florida Bar require that all fees awarded by the court be reasonable. Section 627.428(1) authorizes the court to award reasonable attorney’s fees to be paid by an insurer to an insured in the event the insured brings a successful action against an insurer under an insurance contract. Section 627.428 was intended “to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue to enforce their insurance contracts.” Ins. Co. of N. Am. v. Lexow, 602 So.2d 528, 531 (Fla.1992).

In Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985), the supreme court adopted the federal lodestar approach, holding that in determining a reasonable attorney’s fee, the federal lodestar methodology, the product of the reasonable hours expended times the hourly rate, “provides a suitable foundation for an objective structure.” The federal lodestar approach establishes a “strong presumption” that the lodestar represents the “reasonable fee.” Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986).

The concept of a fee multiplier first appeared in Florida jurisprudence in Rowe, and was refined by the supreme court in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). Quanstrom set forth a number of factors to be considered in evaluating the need for a multiplier, including:

(1) [Wjhether the relevant market requires a contingency fee multiplier to obtain competent counsel;
(2) [Wjhether the attorney was able to mitigate the risk of nonpayment in any way; and
(3) [Wjhether any of the factors set forth in Rowe are applicable....

555 So.2d at 834. In later cases, the ability to obtain competent counsel rose to prominence in determining under what circumstances a multiplier was necessary and appropriate. See Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403, 411 (Fla.1999) (holding that “[a] primary rationale for the contingency risk multiplier is to provide access to competent counsel for those who could not otherwise afford it”).

Because Mr. Schultz did not testify at the fee hearing, we have nothing to suggest that he had any difficulty obtaining competent counsel to pursue his PIP claim, other than Mr. Klausman’s statement that the attorney handling Mr. Schultz’s third-party liability claim was not interested in pursuing Mr. Schultz’s PIP case. In our view, that lack of evidence alone may be fatal to the claim for a multiplier. As was explained in Tetrault v. Fairchild, 799 So.2d 226 (Fla. 5th DCA 2001):

A second reason for denying application of the multiplier ... is the Quan-strom limitation: the market conditions must be shown to require it. In other words, it must be proved that but for the multiplier, plaintiff could not have obtained competent counsel in the area. Plaintiffs counsel attempted to make this showing by himself testifying that he would not have taken the case without the multiplier. Since the test is whether plaintiff would have had substantial difficulty in obtaining ... competent counsel within the area to take the case without the multiplier, whether plaintiffs counsel would have taken the case only on that basis is immaterial. The question is whether other competent counsel would have done so.

Id. at 234 (Harris, J., concurring specially).

The notion that evidence should support the plaintiffs difficulty in obtaining competent counsel is hardly novel. Our supreme court said years ago that “[bjefore adjusting for risk assumption, there should be evidence in the record, and the trial court should so find, that without risk-enhancement plaintiff would have faced substantial difficulties in finding counsel in the local or other relevant market.” Sun Bank of Ocala v. Ford, 564 So.2d 1078, 1079 (Fla.1990) (quoting Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987)) (emphasis added).

Common sense also plays a role here. We are not so isolated from the world around us to know that few people have any difficulty retaining competent counsel in these circumstances. Our docket, and the dockets of the trial courts in Central Florida, have hundreds, and perhaps thousands, of PIP suits pending at any given time. It seems that few insureds, if any, have difficulty obtaining competent counsel to represent them. To the contrary, every television station and telephone book, and many billboards and buses, call out with ads from lawyers seeking to represent the injured.

We also choose to exercise our discretionary jurisdiction in this case because judges have a special responsibility in determining reasonable fees for both attorneys and expert witnesses. Miller v. First Am. Bank & Trust, 607 So.2d 483 (Fla. 4th DCA 1992). While the standard for certio-rari review is narrow, it “also contains a degree of flexibility and discretion” which is appropriate to utilize here. Haines City Cmty. Dev., 658 So.2d at 530. “Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney’s fee is, therefore, a very important factor in the administration of justice, and if it is not determined with proper relation to that fact[,] it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. It [sic] does more than that; it brings the court into disrepute and destroys its power to perform adequately the function of its creation.” Miller, 607 So.2d at 485, n. 4 (quoting Baruch v. Giblin, 122 Fla. 59, 164 So. 831, 833 (1935)).

The testimony at the fee hearing was informative. Mr. Klausman testified that the only time he charged $400 per hour was when he testified as a fee expert for other lawyers. Additionally, Mr. Klaus-man acknowledged that the accident was a “fender-bender.” More significantly, however, Mr. Schultz’s fee expert described the case thusly:

A Well, an IME case is going to be a fifty/fifty shot under these circumstances anyway. You’ve got a minor impact, car drivable afterwards, you’ve got no hospitalization, no medical doctor, excessive chiropractic treatment over a four-month period where the plaintiff is treating still three times a week when the IME takes place four months later— almost five months later. And in the IME there’s no objective signs of injury at all clearly documented by Dr. Bennett [the “IME” physician].... He only has some subjective complaints which if you look at Masters’ [the “treating” physician] notes, and this is critical when you’re looking at a PIP case, there is no sign of improvement with the treatment that’s been going on. It is entirely foreseeable that a jury in this case would say, you know what, this guy has six thousand dollars’ worth of PIP treatment already. The defense is going to say, ladies and gentlemen, enough is enough....
... Plus there was a surface EMG that was done here and paid. The surface EMG — there’s a question from the insurance industry whether or not it’s even a legit test and in this particular case the medical records do not document any radiculopathy and would not document this need for an EMG. Dr. Bennett found that also.
Q So that would have hurt Dr. Masters’ credibility?
A Right, running a test that is questionable, but not warranted in any event in this particular case.

Armed with this same information, Progressive stopped paying Mr. Schultz’s PIP benefits. While in hindsight that decision may have been wrong, it does not seem unreasonable, unwarranted or outrageous. And, it hardly seems to justify attorney’s fees of $1,000 per hour.

Our jurisprudence, because of the ability to obtain a fee multiplier in long shot cases, routinely approves fees that reward lawyers for pursuing cases that have little chance of success. The riskier the case, the greater the multiplier. See Holiday v. Nationwide Mut. Fire Ins., 864 So.2d 1215 (Fla. 5th DCA 2004) (upholding the use of a multiplier when the trial court found that “both attorneys took the case as a ‘flyer’ in the hope of ‘getting lucky’ and recovering a huge fee”). “An attorney operating on a contingency-fee basis pools the risks presented by his various cases: cases that turn out to be successful pay for the time he gambled on those that did not. To award a contingency enhancement under a fee-shifting statute would in effect pay for the attorney’s time (or anticipated time) in cases where his client does not prevail.” Burlington v. Dague, 505 U.S. 557, 565, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). A sensible judicial system should not encourage lawyers to bring suits that are extreme long shots. See In re Oracle Secs. Litigation, 852 F.Supp. 1437, 1452 (N.D.Cal.1994).

In this case, the use of a multiplier fails in several respects. First, there was no evidence that Mr. Schultz had any difficulty obtaining competent counsel to represent him. Second, and, in large part, this was a fairly unremarkable contract case involving a dispute over $1,315. Relying on the unique facts of State Farm Fire & Casualty Co. v. Palma, 555 So.2d 836 (Fla.1990), Mr. Schultz defends the court’s use of a multiplier. In Palma, the supreme court affirmed an award of $253,500 in attorney’s fees using a contingency-risk multiplier in an insured’s action against State Farm to recover $600 for an unpaid thermographic examination. However, in doing so, the supreme court took pains to note that its approval of the fee was based upon the “extraordinary circumstances present” and because State Farm decided to “go to the mat” over the bill for thermographic studies. The court further observed that “the real issue was not an incidental medical bill. This record is clear that State Farm hoped to prove a point in this case regarding bills for this medical procedure that would avail it in other cases nationally.” Id. at 838. This case does not involve similar circumstances. Third, and contrary to Mr. Schultz’s assertion, the amount in controversy is relevant to the court’s consideration of a multiplier. Palma, 555 So.2d at 838 (instructing that amount in controversy “would be a significant factor in some circumstances” when courts consider fee multipliers).

In Ziontz v. Ocean Trail Unit Owners Association, Inc., 663 So.2d 1334, 1335-36 (Fla. 4th DCA 1993), Judge Farmer observed:

[JJudges and lawyers [have lost] ... sight of a truth they formerly accepted almost universally: viz., that there is an economic relationship to almost every legal service in the marketplace. The value of any professional service is almost always a function of its relationship to something else — i.e., some property or other right.... Trial judges and lawyers used to accept a priori the idea that, no matter how much time was spent or how good the advocate, the fair price of some legal victories simply could not exceed — or, conversely, should not be less than — some relevant sum not determined alone by hours or rates. Since Roioe, that all seems lamentably forgotten.

In our view, there is nothing about this case that calls for a fee multiplier. “Fees of the kind awarded here threaten to make the respect of nonlawyers for judicial control of fees — indeed, for the very legal system itself — a thing of the past. Because of the manifest justice rule in this instance, ... we conclude that this fee award must be set aside.” Id. at 1336. “No court is obliged to approve a judgment which so obviously offends even the most hardened appellate conscience and which is so obviously contrary to the manifest justice of the case. Indeed, it is obliged not to.” Miller, 607 So.2d at 484.

We conclude that the circuit court departed from the essential requirements of law in affirming the county court’s order allowing the use of an attorney’s fee multiplier. Accordingly, we grant the writ and quash the circuit court’s judgment to the extent that it sanctions the use of an attorney’s fee multiplier in this case.

PLEUS, C.J., and MONACO, J., concur.

      . Progressive’s attorney's fees expert opined that 143.25 hours was reasonable.

      . "An attorney shall not ... charge, or collect. ... [a] clearly excessive fee_" R. Regulating Fla. Bar 4-1.5(a).

      . Rowe and Quanstrom were premised on the United States Supreme Court’s decisions approving fee multipliers in Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989), and Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987). The Supreme Court receded from the use of multipliers in federal fee shifting cases in Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992).

      . We, too, are aware of the fees that prevail in the Central Florida market. The fee approved here, $400 an hour before the multiplier, certainly pushes the upper limit for hourly fees, even in the most complex litigation.

      . We are troubled by the lodestar fee awarded by the county court, particularly the hourly rate deemed to be reasonable. However, we will leave that issue for another case when the scope of our review is broader.