author: SCHWARTZ, Senior Judge.

text:
    Gary Lamar POLITE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2819.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Bennett H. Brummer, Public Defender, and Carlos F. Gonzalez, Special Assistant Public Defender, for appellant.

      Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before GERSTEN and WELLS, JJ., and SCHWARTZ, Senior Judge.
   ON MOTION FOR REHEARING

SCHWARTZ, Senior Judge.

We grant the state’s motion for rehearing, set aside the opinion of April 13, 2005, and substitute the following.

The defendant appeals from a conviction and sentence for resisting an officer with violence under section 843.01, Florida Statutes (2002), which makes it a felony to “knowingly and willfully resist[ ], obstruct ], or oppose[ ] any officer ... by offering or doing violence to the person of such officer.” The primary issue at the trial, presented by disputed evidence on the question, was whether, in forcibly resisting arrest by the victim, Officer Munoz, who was in plain clothes and undercover, the defendant actually knew or should have known that he was indeed a police officer. During both the closing and rebuttal portions of the prosecutor’s final argument the prosecutor argued that it was not necessary for the state to establish that fact. The court overruled the defendant’s objections to this argument and a motion for mistrial and later denied a requested instruction that the term “knowingly” in the definition of the offense included the requirement

that he must knowingly resist an officer which includes that he must have known that ... Officer Munoz was in fact a police officer....

On appeal, Polite again argues that the trial court erred in overruling his objections to the state’s arguments and in refusing to give an instruction to the effect that the state must prove that the defendant knew that Munoz was an officer. We disagree upon the holding that knowledge of the victim’s status is not an element of the offense of resisting an officer with violence. Therefore, neither the state’s arguments nor the trial judge’s rulings were incorrect.

In resolving the present issue of the proper interpretation of section 843.01, the starting point, as always, is the statute itself. It provides:

Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); ... by offering or doing violence to the person of such officer ... is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

And, as was said in State v. Giorgetti, 868 So.2d 512, 515 (Fla.2004):

[T]he Legislature generally has broad authority to determine any requirement for intent or knowledge in the definition of a crime. To determine whether the Legislature included a knowledge requirement in any given statute, we first look to the statute’s plain language.

(Citation omitted). Of course, the word “knowingly” appears in the statute itself. The real issue, however, is what that word refers to. We conclude that the “plain language” of section 843.01 shows that the legislature did not include knowledge of the victim’s status as an element of the offense. This is so because the adverbial terms “knowingly and willfully” modify the verbs “resists, obstructs or opposes” rather than the entire phrase. In contrast, the defendant’s position, which is essentially that “knowingly” applies to the term “officer,” would require an impermissible rewriting of the statute by inserting the phrase “a person known by him to be” to modify the term “officer,” see Reynolds v. State, 842 So.2d 46 (Fla.2002), or the phrase “with the intent of’ before the phrase “offering or doing violence to the person of such officer.” See Frey v. State, 708 So.2d 918, 920 n. 2 (Fla.1998); see also Exposito v. State, 891 So.2d 525, 528 (Fla. 2004)(“[T]his Court must give the statutory language its plain and ordinary meaning, and is not at liberty to add words ... that were not placed there by the Legislature.”)(internal quotation marks and citation omitted).

Our holding is made obvious by the legal fact that resisting an officer with violence is not a specific intent crime. In Frey, 708 So.2d at 920, the supreme court held that the statutory language requires “no heightened or particularized intent,” and that resisting an officer with violence is therefore a general intent offense. See also Williams v. State, 250 So.2d 11 (Fla. 3d DCA 1971)(resisting an officer with violence). As such, the defendant must “knowingly” simply intend to commit the proscribed act, that is, resisting, obstructing or opposing a person who is an officer. See State v. Franchi, 746 So.2d 1126, 1128 (Fla. 4th DCA 1999)(“The plain language of the [aiding escape] statute does not require a heightened or particularized intent beyond the mere intent to commit the act itself or the intent to cause the natural and necessary consequences of the act, i.e., to ‘knowingly’ act.”), review denied, 767 So.2d 456 (Fla.2000). See also Frey, 708 So.2d at 922 n. 4 (Anstead, J., concurring in part and dissenting in part)(“The term ‘knowingly’ by itself does not create a specific intent crime. United States v. Manganellis, 864 F.2d 528, 536 (7th Cir. 1988).”); accord Carrada v. State, 919 So.2d 592, 595 n. 2 (Fla. 3d DCA 2006)(leaving the scene of a crash resulting in personal injury is not a specific intent crime even though statute requires that offense be committed “willfully”)(citing Frey (Anstead, J., concurring in part and dissenting in part)); cf. Thompson v. State, 695 So.2d 691 (Fla.1997)(holding that knowledge is an element of attempted murder of a law enforcement officer is supported by fact that offense requires specific intent). But see A.F. v. State, 905 So.2d 1010, 1012 (Fla. 5th DCA 2005)(re-spondent accused of resisting an officer with violence “must have reason to know that the ‘victim’ is an officer”).

Furthermore, our holding is in keeping with the underlying purposes of the statute in “preventing the hindrance of the government and [in the] protection of individual officers.” Wallace v. State, 724 So.2d 1176, 1179 & 1179 n. 6 (Fla.1998)(noting that (1) the Court in United States v. Feola, 420 U.S. 671, 95 5.Ct. 1255, 43 L.Ed.2d 541 (1975), gave weight to both purposes in holding that knowledge is not an element of the offense of assaulting, resisting or impeding a federal officer; and (2) that the offense is the “federal statutory equivalent” to resisting an officer with violence). As the present case shows, the “contrary conclusion would give insufficient protection to the [police officer] enforcing an unpopular law, and none to the [officer] acting under cover." Feola, 420 U.S. at 684, 95 S.Ct. 1255 (emphasis added).

It is significant also that when the legislature determines that knowledge of an officer’s status is an element of an offense, it has expressly included such a condition. The point is clearly made in T.S. v. State, 808 So.2d 1276, 1277 (Fla. 4th DCA 2002). In considering the similar offense of assaulting a school board employee, the court stated:

Appellant was charged under section 231.06, Florida Statutes (1995), a statute which was repealed on October 1, 1996, and replaced with section 784.081, Florida Statutes (2000). Both statutes address assaults on school board employees. The new statute requires that in order to be convicted the person charged with the violation must know that the victim ivas a school board employee. The petition did not refer to the new statute and did not allege that appellant knew the victim was a school board employee.
The state does concede that the petition does not allege that appellant knew the victim was a school board employee, an element of the new statute. We therefore remand for the offense to be reclassified as simple assault.

(Emphasis added). See also § 316.1935, Fla. Stat. (2005)(fleeing or eluding officer); § 812.015(6), Fla. Stat. (2005)(re-sisting officer’s recovery of merchant’s property). Similarly, many statutes in other jurisdictions expressly provide that the defendant must have knowledge, reason to know or a reasonable belief that the victim is an officer. On the other hand when, like section 843.01, that language is not present, several courts have held that knowledge of the victim’s status is not an element. See Feola; Jackson v. Delaware, 734 A.2d 641 (Del.1999)(unpub-lished); Powell v. Mississippi, 806 So.2d 1069 (Miss.2001); Montana v. Gopher, 194 Mont. 227, 633 P.2d 1195 (1981); Nebraska v. Daniels, 220 Neb. 480, 370 N.W.2d 179 (1985); see also Me.Rev.Stat. Ann. Tit. 17-A, § 751-A(2) (2005)(“It is a defense to prosecution under this section that the person reasonably believed that the person attempting to effect the arrest or detention was not a law enforcement officer”). We (of course) agree with these decisions. But see, e.g., California v. Woods, No. D040160, 2003 WL 21783835 (Cal.Ct.App. Aug. 4, 2003)(unpublished opinion); Phillips v. Georgia, 267 Ga.App. 733, 601 S.E.2d 147 (2004); Stack v. Indiana, 534 N.E.2d 253, 255 (Ind.Ct.App.1989).

It is true that the crime of resisting an officer without violence under section 843.02 does require proof of the defendant’s knowledge of the officer’s status although that statute is likewise silent as to such an element. Cooper v. State, 742 So.2d 855 (Fla. 1st DCA 1999); see O’Brien v. State, 771 So.2d 563 (Fla. 4th DCA 2000), review denied, 791 So.2d 1100 (Fla.2001). But, the statutes are otherwise decisively different. As to the “without violence” offense, such a requirement must be imposed because the forbidden conduct would not otherwise be necessarily improper. See D.T.B. v. State, 892 So.2d 522, 524 (Fla. 3d DCA 2004); Cooper, 742 So.2d at 855; Elliot v. State, 704 So.2d 606 (Fla. 4th DCA 1997); see also Chicone v. State, 684 So.2d 736 (Fla.1996). Absent the element of knowledge that the person resisted is a police officer, one would be subject to prosecution for entirely innocent behavior — such as, for example, simply walking away from an unidentified someone who ordered him to remain still. See Giorgetti, 868 So.2d at 515; e.g., St. James v. State, 903 So.2d 1003 (Fla. 2d DCA 2005)(gave false information); D.T.B., 892 So.2d at 524 (flight); E.W. v. State, 873 So.2d 485 (Fla. 1st DCA 2004)(resisted being handcuffed); H.A.P. v. State, 834 So.2d 237 (Fla. 3d DCA 2002)(refused to leave area), review denied, 847 So.2d 976 (Fla. 2003). As to the instant offense, however, as to which violence is required, “[t]he situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected.” Feola, 420 U.S. at 685, 95 S.Ct. 1255.

Of course, when, as below, the defendant presents evidence that he did not know that the victim was an officer, that the victim did not reasonably appear to be an officer, or that the officer used unlawful or excessive force, he may, as he did here, raise an appropriate defense to that effect. See §§ 776.012, .051, Fla. Stat. (2002); Cooper v. State, 573 So.2d 74 (Fla. 4th DCA 1990); Fowler v. State, 328 So.2d 530 (Fla. 3d DCA 1976), cert. denied, 336 So.2d 1181 (Fla. 1976); Parker v. State, 908 So.2d 1099 (Fla. 1st DCA 2005); Baucham v. State, 881 So.2d 95, 96 (Fla. 1st DCA 2004); Langston v. State, 789 So.2d 1024 (Fla. 1st DCA 2001); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985), review denied, 482 So.2d 345 (Fla.1986); Fla. Std. Jury Instr. (Crim) 3.6(f), (g); see also Monroe v. State, 384 So.2d 50 (Fla. 2d DCA 1980). However, the availability of such a defense, which was implicitly rejected by the jury in this case, does not render knowledge an element of the offense itself which must be established by the state. Cf. State v. Espinosa, 686 So.2d 1345, 1347 (Fla.l996)(“courts have consistently read section 776.051(1), Florida Statutes (1995), in pari materia with section 843.01 to eliminate [the legal arrest] element as to the offense of resisting arrest with violence”). See also Carrada, 919 So.2d at 592; Nicholson v. State, 748 So.2d 1092 (Fla. 4th DCA 2000), review denied, 767 So.2d 459 (Fla. 2000). The prosecutor was right in telling the jury so and the trial court was right in refusing to instruct it otherwise.

Direct conflict is certified with A.F. v. State, 905 So.2d 1010 (Fla. 5th DCA 2005).

Affirmed, conflict certified.

      . We acknowledge that — unusually, perhaps uniquely — this opinion is our third try at this case. Polite v. State, No. 3D03-2819, 2004 WL 1780925 (Fla. 3d DCA August 11, 2004)("Affirmed. See O'Brien v. State, 771 So.2d 563 (Fla. 4th DCA 2000)”); Polite v. State, 934 So.2d 496, 2005 WL 840434 (Fla. 3d DCA Case no. 3D03-2819, opinion filed, April 13, 2005)(on rehearing granted). Our last effort, by the same writer, was based upon the existence of "no doubt [that the defendant’s knowledge of the victim’s capacity as a police officer was] an indispensable element of the crime in question.” Polite, 934 So.2d at 497. The likelihood that there is not only grave doubt about this conclusion but that the direct contrary is true was called to the panel’s attention by two other members of the Court who reviewed the case on the state's motion for en banc consideration. The present opinion, whatever else it may be, is an example of the value of a multi-member court, each of whom takes appropriate responsibility for all of the court's opinions.

      . The alleged crime occurred on December 16, 2002, as Miami-Dade County Police Officer Munoz was working undercover in the downtown Miami area. He was wearing a t-shirt, a plaid button-down shirt and pants. Officer Munoz observed Gary Polite, a homeless man, shaking several parking meters in an attempt to extract coins. Officer Munoz removed his badge, approached the defendant and stated, "Police, you’re under arrest.” The officer tried to grab the defendants wrist but the defendant pulled away. The officer told him not to resist. The defendant’s upper clothing slipped off and the defendant was able to get out of Officer Munoz’s grasp. The defendant attempted to hit the officer and fled the scene. Officer Munoz sent out a BOLO for the defendant.
      Officer Santiago was also working patrol that evening, not undercover, and received Officer Munoz’s BOLO call. Shortly thereafter, Officer Santiago observed the defendant riding his bike. The defendant got off the bike and started walking toward the police officer. Officer Santiago identified himself as an officer and directed the defendant to stop. The defendant submitted to officer Santiago’s authority without a struggle. Officer Santiago testified as a defense witness and stated that the defendant told him he did not know whether Officer Munoz was a police officer.

      .The prosecutors stated in part:
      MS. MARTYAK [State Attorney]: Now, defense counsel called Officer Santiago to the stand. Remember what he told you? They asked, did the defendant say anything and he said, yes. He said that he wasn’t sure if Officer Munoz was a police officer. And you were here. Do I have to prove it to you that the defendant knows the officer is a police officer?
      MS. SAYFIE [Defense Counsel]: Judge, I am going to object.
      MS. MARTYAK: Anywhere does it show here?
      MS. SAYFIE: That is a misstatement of the law.

        THE COURT: Overrule the objection.
      MS. MARTYAK: I don’t have to prove that to you.

      MR. MIN [State Attorney]: Counsel refers to this board and points out the word knowingly. What does the defendant on this board have to know? He has to know that he is resisting. He has to know that he is obstructing, and he has to know that he is opposing. That’s all he has to know. That word knowingly goes to those accidents where he just all of a sudden moved your arm back.

      That knowingly goes to that element. Knowingly resisted, knowingly obstructed, knowingly opposed. Did he knowingly and willfully swing his arms? Did he knowingly and willfully resist? Did he knowingly and willfully oppose? That's what the word knowingly goes to.
      Nowhere in this jury instruction or in the instructions that the Judge is going to read to you or in the instructions that you are going to get and take back to the jury room with you nowhere are you going to see the words that he knew he was a police officer.

      . The elements are 'T) knowingly 2) resisting, obstructing or opposing a law enforcement officer 3) in the lawful execution of any legal duty 4) by offering or doing violence to his person.” State v. Henriquez, 485 So.2d 414, 415 (Fla.1986).

      . There may be some theoretical distinction between a "specific intent” offense and one which does require a particular element of knowledge as an element of the crime. The two concepts, however, seem quite interchangeable and indistinguishable for purposes of analysis and result. See United States v. Kimes, 246 F.3d 800 (6th Cir.2001), cert. denied, 534 U.S. 1085, 122 S.Ct. 823, 151 L.Ed.2d 705 (2002); United States v. Berki, 936 F.2d 529, 532 (11th Cir.l991)("[W]e conclude that [threatening to assault or murder a federal judge] is not a specific intent crime. In other words, it was not essential for [the defendant] to know that he was threatening a federal judge to be held criminally liable for his conduct.”), cert. denied, 503 U.S. 988, 112 S.Ct. 1677, 118 L.Ed.2d 395 (1992).

      . That Thompson does not govern this case is shown by Justice Anstead’s citation to that case in his dissent in Frey. See Frey, 708 So.2d at 925-26.

      . The Feola holding that knowledge of the officer's status is not an element of assaulting or resisting a federal officer remains an established part of federal law addressing this offense. See United States v. Ettinger, 344 F.3d 1149 (11th Cir.2003); see also United States v. Yermian, 468 U.S. 63, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984); see generally Eric C. Sur-ette, Annotation, Scienter as Element of Offense of Assaulting, Resisting, or Impeding Federal Officer Under 18 U.S.C.A. § 111, 6 A.L.R. Fed.2d 415 (2005).

      . Section 231.06, Florida Statutes (1995), states that "[W]henever any student ... commits an assault or battery upon any ... employee of a school district ... the offense for which the person is charged shall be classified. ...”
      Section 784.081, Florida Statutes (2000), provides:
      Whenever a person is charged with committing an assault or aggravated assault or battery or aggravated battery upon any ... employee of ... any ... entity of the state system of education ... when the person committing the offense knows or has reason to know the identity or position or employment of the victim, the offense for which the person is charged shall be reclassified....
      (Emphasis added).

      . Section 316.1935, Florida Statutes (2005), states, in pertinent part:
      (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer....
      (2) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree.... (3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated

      (4) Any person who, in the course of unlawfully leaving or attempting to leave the scene of a crash in violation of s. 316.027 or s. 316.061, having knowledge of an order to stop by a duly authorized law enforcement officer, willfully refuses or fails to stop in compliance with such an order, or having stopped in knowing compliance with such order, willfully flees in an attempt to elude ■such officer ....

        (Emphasis added). See Creed v. State, 886 So.2d 301 (Fla. 4th DCA 2004).

      . Section 812.015(6), Florida Statutes (2005), in pertinent part, provides:
      An individual who, while committing or after committing theft of property, transit fare evasion, or trespass, resists the reasonable effort of a law enforcement officer ... to recover the property or cause the individual to pay the proper transit fare or vacate the transit facility which the law enforcement officer ... had probable cause to believe the individual had concealed or removed from its place of display or elsewhere or perpetrated a transit fare evasion or trespass commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the individual did not know, or did not have reason to know, that the person seeking to recover the property was a law enforcement officer ....
      (Emphasis added). See Lane v. State, 867 So.2d 539 (Fla. 1st DCA 2004)(state must prove that the defendant knew or had reason to know that person the defendant resisted was merchant).

      . Alaska Stat. § 11.56.700 (2005)("knowing that a peace officer is making an arrest”); Ariz.Rev.Stat. Ann. § 13-2508 (2005)("a person reasonably known to him to be a peace officer”); Ark.Code Ann. § 5-54-103 (2005)("a person known by him to be a law enforcement officer”); Cal.Penal Code § 148.10 (West 2005)("knew or reasonably should have known that the other person was a peace officer”); Conn. Gen.Stat. § 53a-167c (2005)(assault of officer in preventing officer from performing dulies)("reasonably identifiable police officer”); 720 Ill. Comp. Stat. 5/31-1 (2005)("one known to the person to be a peace officer”); Iowa Code § 719.1 (2005)("anyone known by the person to be a peace officer”); Ky.Rev.Stat. Ann. § 520.090 (West 2005)(”a peace officer, recognized to be acting under color of his official authority”); La.Rev.Stat. Ann. § 14:108(A) (2005)("when the offender knows or has reason to know that the person arresting ... is acting in his official capacity”); Mich. Comp. Laws Ann. § 750.8Id (West 2005); Mo.Rev.Stat. § 575.150 (2005); N.H.Rev.Stat. Ann. § 642:2 (2005); Or.Rev.Stat. § 162.315 (2005); R.I. Gen. Laws § 12-7-10 (2005); S.C.Code Ann. § 16-9-320 (2005); Tenn. Code Ann. § 39-16-602(a) (West 2005); Tex. Penal Code Ann. § 38.03(a) (Vernon 2005); Utah Code Ann. 76-8-305(1) (West 2005); Vt. Stat. Ann. 0⅛ 13, § 3017 (2005); see Col. Rev.Stat. Ann. § 18-8-103 (West 2005) (defines peace officer as "in uniform or, if out of uniform, one who has identified himself by exhibiting his credentials as such peace officer to the person whose arrest is attempted”); Mass. Gen. Laws ch. 268, § 32B (2005)(same); D.C.Code § 22-405 (2005).

      .Section 843.02., "Resisting officer without violence to his or her person,” states:
      Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

      . We have come to this conclusion only very late in the process. Indeed, the source of our (my) error in the immediately former opinion was to cite Cooper, 742 So.2d at 855, a section 843.02 no violence case, in support of the conclusion that section 843.01, the with violence statute, contains the element of knowledge.


source: Caselaw Access Project

author: THOMAS, J.

license: Public Domain

text:
    SUNSHINE TOWING, INC., and FCCI Insurance Group, Appellants, v. Miguel FONSECA, Appellee.
    No. 1D05-3258.
    District Court of Appeal of Florida, First District.
    June 14, 2006.
    Diane B. Hernandez of Hernandez & Hicks, P.A., Fort Lauderdale, for Appellants.
    Bill McCabe of Shepherd, McCabe & Cooley, Longwood, and Bill B. Berke, Cape Coral, for Appellee.
   THOMAS, J.

Sunshine Towing, Inc., and FCCI Insurance Group (“E/C”) appeal a final order of the Judge of Compensation Claims (“JCC”) denying E/C’s motion to involuntarily impose a lien as a condition precedent to making medically necessary modifications to Claimant’s home. Because we find that the JCC did not err in determining there was no statutory or legal authority to involuntarily impose a lien on Claimant’s home, we affirm.

Claimant was injured in a workers’ compensation accident and is now a quadriplegic. E/C accepted Claimant’s injury as compensable, provided treatment at an inpatient facility, and agreed that it was responsible for modifying Claimant’s home to meet his medical needs under section 440.13(2)(a), Florida Statutes (2004). E/C sought to impose a lien to prevent unjust enrichment or repetitive expenses from a variety of causes, including, but not limited to, Claimant’s sale of his home.

Workers’ compensation is purely a creature of statute and, as such, is subject to the basic principles of statutory construction. McDade v. Palm Beach County Sch. Dist., 898 So.2d 126, 128 (Fla. 1st DCA 2005) (citing Travelers Ins. Co. v. Sitko, 496 So.2d 920, 921 (Fla. 1st DCA 1986)). Where the legislature has used a term in one section of a statute but omitted the term in another section, the court will not read the term into the sections where it was omitted. Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995).

Here, E/C is not entitled to involuntarily impose a lien because there is no statutory authorization for a lien. Section 440.13(2)(a) does not provide for a lien, nor does any other section that E/C cites. See J.J. Murphy & Son, Inc. v. Gibbs, 137 So.2d 553, 562 (Fla.1962) (explaining that workers’ compensation “must be governed by what the statutes provide, not by what deciding authorities feel the law should be.”). In addition, because the legislature used the term of imposing a lien in other areas of chapter 440 but not in section 440.13(2)(a), we cannot read this term into section 440.13(2)(a). See §§ 440.23 & 440.39(3)(a), Fla. Stat. (2004). Therefore, the JCC’s order is AFFIRMED.

BENTON and POLSTON, JJ., concur.


author: SHARP, W., J.

text:
    Devender REDDY and Nagender Reddy, Appellants, v. William D. FARKUS and Deborah L. Farkus, Appellees.
    No. 5D05-3377.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2006.
    Rehearing Denied July 21, 2006.

      Andrew M. Brumby, of Shutts <& Bowen, LLP., Orlando, for Appellant.
    Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, and Lawrence J. Marchbanks, P.A., Wildwood, for Appellee.
   SHARP, W., J.

The Reddys appeal from a final order and order denying a motion to rehear which dismissed a lawsuit for specific performance they filed against the Farkuses, after the Farkuses refused to close on the sale of 54 acres of property in Sumter County, Florida (the Property). The Red-dys argue that the trial court erred in dismissing their lawsuit pursuant to Rule 1.420(e) for lack of prosecution. We agree and reverse, based on Wilson v. Salomon, 923 So.2d 363 (Fla.2005).

The facts in this case are not in dispute. In August of 2002, the Farkuses and the Reddys entered into a written contract for the sale of the Property by the Farkuses to the Reddys for a purchase price of $540,000 ($10,000 per acre). A closing date of October 15, 2002, was agreed upon and the Reddys made a $10,000 down payment. The Reddys applied for financing with Branch Banking & Trust Co. (the Bank), and Sharon King (King), the real estate agent and sister of Deborah Farkus, verified the Reddys’ application with the Bank. The Bank also assured King that the Reddys were financially secure enough to purchase the Property.

On September 11, 2002, the Bank issued a commitment letter for the requested loan amount with an expiration date of October 4, 2002. Because this expiration date was approximately two weeks prior to the scheduled closing, the Bank issued a corrected commitment letter, with an expiration date of October 16, 2002.

However, on October 9, 2002, the Far-kuses claimed that the original commitment letter was inadequate and cancelled the contract. On October 11, 2002, the Reddys sent the Farkuses a letter which rejected the cancellation, advised that they had the necessary commitment from the Bank, and were ready, willing and able to close on the Property. The Reddys and King appeared on October 15, 2002 for the closing, but the Farkuses did not appear and refused to close. This lawsuit followed.

During 2003, the parties engaged in substantial discovery, which included, inter alia, taking depositions of all four litigants as well as King. On November 10, 2003, the Reddys filed a motion for summary judgment, and a hearing on the motion was scheduled for December 11, 2003. However, the Reddys cancelled this hearing, and on December 15, 2003 filed their Notice of Cancellation of Hearing.

On November 17, 2004, the Farkuses filed their motion to dismiss pursuant to Rule 1.420(e) for lack of prosecution. On December 2, 2004, the Reddys filed a notice of hearing on their 2003 motion for summary judgment, and a hearing was scheduled for December 15, 2004. On December 7, 2004, the Farkuses filed an “affidavit” requesting that the court deny the Reddys motion for summary judgment.

The December 15, 2004 hearing on both motions was continued when the trial judge became aware that the Farkuses’ motion had not been properly set for hearing. Further, the judge was transferring from Sumter to Marion County, and he thought it inappropriate for him to proceed in the case. The motions were scheduled to be heard on March 30, 2005, but the hearing was again postponed until April 15, 2005 by agreement of counsel.

On April 15, 2005, counsel for the Red-dys arrived 30 minutes late to the hearing because he was under the impression that the hearing had been re-scheduled for the same time as the March 30, 2005 hearing, when in fact the hearing had been scheduled for 45 minutes earlier. By the time counsel arrived, the trial court had dismissed the case based on the Farkuses’ motion. The Reddys filed a motion to rehear, and a hearing was held on the motion, but that motion was denied as well.

The issue in this case is whether the filing of a notice of cancellation of a hearing is sufficient to preclude dismissal under the interpretation given to rule 1.420(e) by the supreme court in Wilson v. Salamon. This opinion was released after the appealed-from orders were entered.

In Wilson v. Salamon, the only record activity for the previous year was an order granting a motion to appear pro hac vice. The trial court concluded that the order did not constitute sufficient activity to pre-elude dismissal under rule 1.420(e) and granted the motion. On appeal, the district court affirmed.

However, the supreme court receded from its prior interpretation of rule 1.420(e) to the extent that it required trial courts to look behind the face of the record to subjectively determine whether the activity reflected was passive or active. Under that analysis, if the activity was passive, dismissal of the law suit was proper. Conversely, if the activity was active and designed to hasten the suit to a conclusion on the merits, dismissal was precluded. Wilson v. Salamon.

The supreme court signaled that it was going to “return to the plain meaning and, more importantly, the purpose and policy of the rule,” because the rule’s original purpose and policy had been “undermined,” which in turn undermined the integrity and credibility of our court system as well. It rejected the subjective analysis approach because it had simply become too subjective, had proven to be unworkable, and had spurred an increase in non-merit based litigation.

Instead, the court adopted a plain meaning construction, based upon the “clear” language of 1.420(e), which resulted in a “bright line” test. The bright line test is simple and easy to apply: if there is any activity on the record within the previous one year, the inquiry ends and the rule 1.420(e) motion must be denied. A subjective analysis of the activity on the record is neither necessary nor relevant.

On the other hand, if the record shows no activity within the previous one year period, and the nonmoving party has complied with other requirements of the rule, the burden shifts to the nonmoving party to establish good cause. Good cause includes both good faith and a determination as to whether the non-record acts moved the case towards disposition, i.e., a subjective analysis. Wilson v. Salamon, citing Del Duca v. Anthony, 587 So.2d 1306 (Fla.1991).

In this case, we do not need to proceed beyond the initial question, whether there was record activity in the year prior to the date the Farkuses filed their motion to dismiss on November 17, 2003. The record shows that the Reddys filed their notice of cancellation on December 15, 2003, within the one year period. Since there was record activity within the previous one year, the motion was improvidently granted. See Wilson v. Salamon; Nie v. Beaux Gardens Associates, Ltd., 923 So.2d 1200 (Fla. 3d DCA 2006); Commercial Union Ins. Co. v. Marine Sales & Services, Inc., 923 So.2d 535 (Fla. 4th DCA 2006).

We therefore must REVERSE and REMAND to the trial court for reinstatement of the action.

GRIFFIN and PALMER, JJ., concur.

      . The Reddys claim that the hearing was can-celled as a result of settlement negotiations which resulted in an agreement between the parties; the Farkuses deny this.

      . Generally, appellate courts are required to apply the law as it exists at the time of the appeal, rather than that which existed when the case was tried. See Lowe v. Price, 437 So.2d 142 (Fla.1983); Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla.1978); Florida East Coast Railway Co. v. Rouse, 194 So.2d 260, 262 (Fla.1966); D’Aquisto v. Costco Wholesale Corp., 816 So.2d 1231 (Fla. 5th DCA 2002); St. John v. Coisman, 799 So.2d 1110 (Fla. 5th DCA 2001).

      . We have reviewed the record and find that this error was properly preserved, thereby rejecting appellee’s claim to the contrary.


author: PER CURIAM.

text:
    Roy Lee WILSON, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-1027.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.

      Roy Lee Wilson, in proper person.
    Charles J. Crist, Attorney General, for respondent.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Roy Lee Wilson seeks a writ of habeas corpus alleging that his trial counsel rendered ineffective assistance for failure to raise the claim that the trial court fundamentally erred when it used the conjunc-' tion “and/or” in the jury instructions. We deny the petition finding that the use of the conjunction “and/or” did not result in fundamental error.

The State charged Wilson with two counts of battery on a law enforcement officer and one count of resisting arrest with violence. A jury convicted Wilson of two counts of battery on a law enforcement officer and one count of resisting arrest without violence, a lesser included offense. Subsequently, Wilson appealed his conviction and sentence to this Court and we per curiam affirmed.

The jury instruction for resisting arrest with violence read as follows:

Before you can find the defendant guilty of Resisting Officer With Violence, the State must prove the following three elements beyond a reasonable doubt:
1. ROY LEE WILSON knowingly and willfully [resisted] or [obstructed] or [opposed] OFFICER A. MARTINEZ and/or OFFICER I. CASE-RO by [doing violence to him/her].
2. At the time OFFICER A. MARTINEZ and/or OFFICER I. CASE-RO were engaged in the [lawful execution of a legal duty].
3. At the time OFFICER A. MARTINEZ and/or OFFICER I. CASE-RO was an officer.

Similarly, the jury instruction for resisting arrest without violence read:

Before you can find the defendant guilty of Resisting Officer Without Violence, as a lesser included offense, the State must prove the following three elements beyond a reasonable doubt:
1. ROY LEE WILSON [resisted] or [obstructed] or [opposed] OFFICER A. MARTINEZ and/or OFFICER I. CASERO.
2. At the time OFFICER A MARTINEZ and/or OFFICER I. CASE-RO was engaged in the [lawful execution of a legal duty].
3. At the time OFFICER A. MARTINEZ and/or OFFICER I. CASE-RO was an officer.

Wilson argues that the use of “and/or” between the officers’ names resulted in fundamental error, and that his counsel’s failure to raise the claim resulted in constitutionally deficient performance because the outcome of the appellate proceeding would otherwise have been different. We disagree.

We first note that Wilson did not object to the jury instructions below. The claimed error thus was not preserved for appeal and, therefore, does not constitute reversible error unless we conclude that the error was fundamental. See Martinez v. State, 933 So.2d 1155, 2006 WL 1331498 (Fla. 3d DCA May 10, 2006). Although the use of the “and/or” conjunction in the jury instructions constitutes a valid basis upon which a conviction may be vacated, these cases usually involve the use of the “and/or” conjunction between the name of the defendant and a co-defendant. See Lloyd v. Crosby, 917 So.2d 988 (Fla. 3d DCA 2005); Dorsett v. McRay, 901 So.2d 225 (Fla. 3d DCA 2005); Cabrera v. State, 890 So.2d 506 (Fla. 2d DCA 2005). Courts have held that inclusion of the and/or conjunction between the names of defendants in a jury instruction can result in criminal liability on the part of the defendant solely if the co-defendant is found liable. See Dorsett, 901 So.2d at 226.

Here, however, the court did not place the “and/or” conjunction between Wilson’s name and the name of his co-defendant. The court placed the conjunction between the names of the two officers. The “and/ or” conjunction in both instructions permitted the jury to convict Wilson of resisting arrest with or without violence if he knowingly and willfully resisted, obstructed, or opposed either officer. It is not necessary for the jury to find that Wilson knowingly and willfully resisted, obstructed, or opposed both officers to find him guilty of resisting an officer with or without violence.

Because the placement of the “and/or” conjunction in no way prejudiced Wilson, we therefore conclude that the use of the “and/or” conjunction in both instructions to the jury did not result in fundamental error.

Petition denied.


text:
    Steven Anthony DESOIZA, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-0352.
    District Court of Appeal of Florida, First District.
    June 21, 2006.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Downs v. Moore, 801 So.2d 906 (Fla.2001); Beckham v. State, 884 So.2d 969 (Fla. 1st DCA 2004); Thomas v. State, 726 So.2d 357 (Fla. 1st DCA 1999).

BENTON, PADOYANO, and LEWIS, JJ., concur.


text:
    Michael PHILLIPS, Appellant, v. EDWARD J. HEALY REHABILITATION CENTER and Florida League of Cities, Inc., Appellees.
    No. 1D05-1513.
    District Court of Appeal of Florida, First District.
    June 21, 2006.
    David C. Chafin, Law Offices of David C. Chafin, P. A., Port St. Lucie, for Appellant.

      David Schweiger and Tamara M. Scrud-ders of Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P. A., Ft. Lauder-dale, for Appellees.
   PER CURIAM.

AFFIRMED. See Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (Fla. 1st DCA 2006).

ALLEN, VAN NORTWICK, and POLSTON, JJ., concur.


text:
    Ilan AMAR, Appellant, v. Alicia Sue KHAN-AMAR, Appellee.
    No. 4D05-3820.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Stephen H. Butter of Stephen H. Butter, P.A., Aventura, for appellant.
    Evan H. Baron of Evan H. Baron, P.A., Weston, for appellee.
   PER CURIAM.

Affirmed. See Schmitz v. Schmitz, 891 So.2d 1140 (Fla. 4th DCA 2005); Piluso v. Piluso, 622 So.2d 117 (Fla. 4th DCA 1993).

WARNER, GROSS and HAZOUEI, JJ., concur.


text:
    Michael N. SCHNEIDER, as Personal Representative of the Estate of James Darrell Mabe, Appellant, v. CITY OF JACKSONVILLE, Appellee.
    No. 1D05-2104.
    District Court of Appeal of Florida, First District.
    June 22, 2006.
    Rehearing Denied July 20, 2006.

      Barbara A. Heyer of Heyer & Associates, P.A., Fort Lauderdale, for Appellant.
    Richard A. Mullaney, General Counsel, Scott D. Makar, Chief, Appellate Division, and Jon R. Phillips, Assistant General Counsel, Office of General Counsel, Jacksonville, for Appellee.
   PER CURIAM.

Appellant seeks review of a summary final judgment entered against him, as personal representative of the estate of James Darrell Mabe, in his action seeking damages resulting from the death of Mabe which was caused by allegedly tortious conduct by Detective Larry Branch of the Jacksonville Sheriffs Office. Having carefully reviewed the record, we conclude that appellee failed to carry its burden of demonstrating conclusively either the absence of any genuine issue as to any material fact or entitlement to judgment as a matter of law. Accordingly, we reverse.

As the courts of this state have said many times, the law regarding summary judgment is well-established:

[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.... A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law....
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). Succinctly put, “[w]hen acting upon a motion for summary judgment, if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied.” Jones v. Directors Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991) (citations omitted).

In this case, it appears that the trial court failed to heed this well-established law and, in addition, relied in part on deposition testimony that was not based on personal knowledge and would not be admissible in evidence at trial. Applying the correct law, and viewing all reasonable inferences which may be drawn from the evidence in a light most favorable to appellant, we are unable to say that the record conclusively demonstrates either the absence of any genuine issue of material fact or that appellee is entitled to judgment as a matter of law as to either count of the amended complaint. Accordingly, we reverse the summary final judgment, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

KAHN, C.J. and WEBSTER, J., concur; HAWKES, J. concurs in result.


text:
    Oscar PATTERSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-0002.
    District Court of Appeal of Florida, First District.
    June 26, 2006.
    Oscar Patterson, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Susan Schwartz, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

BARFIELD, VAN NORTWICK, and LEWIS, JJ„ concur.


text:
    Billy E. SWAIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-4941.
    District Court of Appeal of Florida, First District.
    June 26, 2006.
    Billy E. Swain, pro se, Petitioner.
    Charlie Crist, Attorney General, and J. Andrew Atkinson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Munn v. Florida Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

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


author: ERVIN, J.

text:
    William M. STOUGH, Appellant, v. Laurel L. STOUGH, Appellee.
    No. 1D05-3658.
    District Court of Appeal of Florida, First District.
    June 27, 2006.

      John S. Mills and Tracy S. Carlin of Mills & Carlin, P.A., Jacksonville, for Appellant.

      Hal Castillo and William S. Graessle of William S. Graessle & Associates, P.A., Jacksonville, for Appellee.
   ON MOTION FOR REHEARING

ERVIN, J.

Appellee, Laurel L. Stough, seeks rehearing of that portion of this court’s opinion, filed April 21, 2006, in which we decided that the $95,000 advance from ap-pellee’s separate property used to purchase the parties’ marital home, which was jointly titled in both their names, did not defeat the statutory presumption provided in section 61.075(5)(a)5, Florida Statutes, that the conveyance was intended as a gift to the former husband of one-half of jointly held property. As a result, we reversed the lower court’s determination that the former wife was entitled to a special equity in the advance that she made. We deny the motion for rehearing, but withdraw our former opinion and substitute the following in its place for the purpose of explaining in greater detail our decision in such regard.

William M. Stough (former husband or husband) appeals from a final judgment of marital dissolution, claiming that the trial court erred (1) in declaring certain real property purchased in Alabama during the marriage and titled in both parties’ names to be a non-marital asset of Laurel L. Stough (former wife or wife), (2) in awarding the former wife a special equity in the $30,000 down payment used to purchase the property, (3) in authorizing the former wife a special equity for advances made to purchase the marital home located in Florida and titled in the names of both parties, (4) in determining the amount of alimony allowed the former husband, (5) in denying the former husband an award of attorney’s fees, (6) in failing to specify values with respect to the distribution of personal property, and (7) in ordering visitation below the guidelines established in the Fourth Judicial Circuit. We affirm as a proper exercise of the lower court’s discretion the part of the final judgment directing visitation. We reverse the judgment as it relates to the issues pertaining to the equitable distribution of the two parcels of property and remand the case with directions. Because of our disposition of the property issues, we also remand the case to the trial court with directions to revisit the remaining undisposed issues for the purpose of considering all pertinent “factors necessary to do equity and justice between the parties.” § 61.075(l)(j), Fla. Stat. (2001).

We first agree with appellant that the lower court erred in concluding that the real property situated in Alabama and held by both parties jointly was a non-marital asset. The basis for the court’s determination was that the proceeds used to acquire the property were derived from the income of the wife’s separate property, an irrevocable trust that had been established for the wife by her father during the marriage. In so deciding, the court apparently overlooked the fact that the wife had placed the income into a joint checking account from which practically all of the parties’ living expenses were paid during the course of the 19-year marriage. The wife’s monthly income from the trust was in excess of $8,000, while the former husband’s sole source of income was from Social Security disability payments in the monthly amount of $569.

Section 61.075(5)(a)l designates as a marital asset an asset “acquired ... during the marriage, individually by either spouse or jointly by them.” (Emphasis added.) Florida case law interprets the statute as placing the burden on the party claiming jointly held property is not a marital asset to present proof establishing such status by the preponderance of the evidence. See Knecht v. Knecht, 629 So.2d 883 (Fla. 3d DCA 1993). The former wife argues she satisfied her burden by offering evidence showing that nearly all, if not all, of the funds used to purchase the Alabama property were traceable to her separate trust income; therefore, she contends, it remained a non-marital asset, because property, even in joint names, can still be deemed non-marital if it can be traced to a non-marital source. As support for her argument, the wife relies upon Farrior v. Farrior, 736 So.2d 1177 (Fla.1999), in which the supreme court approved a decision of the Second District holding that stock inherited by one of the parties to a marriage remained the wife’s separate property, despite the fact that the stock had been pledged as collateral for marital loans. The court’s ruling was based upon evidence disclosing that the stock had been placed in a safe deposit box, rather than a brokerage account, and had never been sold or intermingled with other marital assets. Thus, the status of the stock as the wife’s separate property had never changed during the marriage. Id. at 1178-79.

The motivating factor influencing the court’s decision in Farrior appears to be that the property had maintained its separate identity throughout the parties’ marriage, unlike the facts in Adams v. Adams, 604 So.2d 494 (Fla. 3d DCA 1992), which the supreme court in Farrior considered distinguishable. In Adams, stocks and bonds of the former husband had been placed in portfolio and margin accounts, and not only were the assets of the margin account used as security for the portfolio account, but they became intermingled with one another, as well as with marital assets, and were used as funds for the payment of marital expenses. Farrior, 736 So.2d at 1178.

The problem with appellee’s argument at bar is that the funds used to purchase the Alabama property came from the same source used to pay nearly all of the family’s expenses — the trust income, which had been placed by the wife in the parties’ joint checking account during the marriage. In fact, the husband testified without contradiction that he expended funds far in excess of those that he had placed in the account from his own limited resources, such as the purchase of fishing boats. Such evidence is clearly consistent with the presumption of a marital gift made by the wife from her separate funds.

The analysis of the Fifth District in Archer v. Archer, 712 So.2d 1198 (Fla. 5th DCA 1998), provides further insight into the resolution of the question of whether a spouse’s separate, non-marital property is entitled to retain such status by reason of the actions undertaken by the spouse during the course of the marriage. In Archer, the former wife had transferred her separate personal property, consisting of a money fund, certificates of deposit, mortgage securities and stocks, into a joint account. The parties used certain assets in the account for the purpose of purchasing items to satisfy their marital living expenses. The court noted that because the mortgage securities and the stock had remained intact since the wife brought them with her into the marriage, they remained traceable as the former wife’s separate property. The court continued, however, that the remaining assets became untraceable due to their being commingled with marital assets and used for the purchase of marital items during the course of the marriage. Id. at 1200. The court reached its conclusion by interpreting section 61.075 as creating a presumption of a gift to a spouse of one-half of jointly held property if the separate property of the other spouse is commingled with non-marital property, and it decided that because the wife had not rebutted the presumption in regard to the assets that were commingled, they became transformed into marital property. Id.

In the present case, the burden was on the wife to rebut the presumption that the funds used in the joint account to purchase the Alabama property were not a gift of one-half of the jointly held funds, which were commingled with those of the husband, and used to pay both the ordinary and extraordinary expenses of the marriage. She failed to meet her burden because she was unable to show that the trust income remained identifiable as her separate property and could be traced to a non-marital source.

For the same reasons, we conclude that the former wife is not entitled to a special equity in the $30,000 down payment used to acquire the property, because she failed to meet her burden of proof to show that she did not intend a marital gift by placing trust income into a joint account used to advance funds for the property’s purchase. As further support for our conclusion, we note that the Alabama property was sold during the pendency of the divorce proceedings, and evidence was presented that each party obtained $105,000 from the proceeds of the sale, with the consent of both.

We reach the same conclusion as to both of the two advances the former wife used to purchase the marital home, which the parties acquired in 1994, during the marriage and which was held by them as tenants by the entireties. The trial court determined that the wife was entitled to a special equity by reason of two down payments for the purchase of the property in the amounts of $10,000, and $95,000, the latter amount financed from the trust established by the wife’s father. The remaining balance of the purchase price was obtained through a conventional mortgage. Because the marital property was titled in the names of both parties as tenants by the entireties, a statutory presumption arose that such property was a marital asset, and the party making any claim to the contrary has the burden of proof. § 61.075(5)(a)5. Because it appears that the $10,000 advance was made solely from the parties’ joint checking account, the wife has failed to sustain her claim to a special equity. See Zangari v. Cunningham, 839 So.2d 918 (Fla. 2d DCA 2003).

As for the $95,000 advance, although the record discloses that it was traceable to the wife’s separate property, the irrevocable trust, because such sum was paid directly from the trust corpus by the trustee to the mortgage company for the purchase of the marital home, we agree that the wife nonetheless failed in her burden to overcome her statutory burden of showing that no gift to the couple was intended. See Knecht (former husband failed to establish special equity in $10,000 of $13,000 down payment given to him by his mother during the marriage for purchase of jointly held real property).

In her motion for rehearing, appellee argues that the case this court relied upon in deciding that she was not entitled to special equity in the $95,000 advance, Knecht, is factually dissimilar from that at bar because, although the Third District held the former husband was not entitled to a special equity in $10,000 given him by his mother to cover the payment of the parties’ jointly-owned North Carolina property, there was no other evidence in Knecht that served to rebut the statutory presumption. Appellee points out that in addition to the fact that the $95,000 down payment in the present case was never commingled with the parties’ assets, other evidence was before the lower court from which it could conclude that no gift was intended, i.e., her testimony that she had placed her former husband’s name on the deed solely for purposes of survivorship, so that, in the event anything should happen to her, their children would have a place to live. In our judgment, the wife’s intention concerning why she permitted her husband’s name to be placed on the deed with her own is insufficient evidence to overcome the statutory burden.

In its facts, this case is quite similar to those in Rutland v. Rutland, 652 So.2d 404 (Fla. 5th DCA 1995), receded from on other grounds, Anson v. Anson, 772 So.2d 52 (Fla. 5th DCA 2000), in which the Fifth District held the trial court erred in awarding the husband a special equity in the pre-marital down payment on the home the husband had purchased before the marriage, but which he transferred to the parties as tenants by the entireties following the marriage. In reversing, the court noted that the husband’s conduct evincing joint ownership could not “be overcome by the mere unsubstantiated claim, raised for the first time during a dissolution proceeding, that he never intended a gift to the wife at the time of the conveyance.” Id. at 406.

More recently, the Fifth District reconfirmed the Rutland holding in Cattaneo v. Cattaneo, 803 So.2d 889 (Fla. 5th DCA 2002), in reversing the trial court’s decision that the base cost of the marital home was subject to the former husband’s special equity as a result of his contributions from non-marital assets. In reversing, the court noted that the husband’s evidence that no gift was intended, based upon his testimony that he had the property jointly titled to demonstrate to the Immigration and Naturalization Service that his marriage to the former wife, a resident of Trinidad, was not a fraud, was not sufficient evidence to overcome the statutory presumption that a gift was intended. We apply the same reasoning to the instant case. Appellee’s explanation regarding why she allowed her husband’s name on the deed is insufficient to overcome the burden imposed by section 61.075(5)(a)5. Contrast Hill v. Hill, 675 So.2d 168 (Fla. 5th DCA 1996) (former husband’s evidence satisfied statutory burden because former wife corroborated husband’s testimony that he had placed the home in the parties’ joint names for estate-planning purposes).

Because of our disposition of the issues relating to the distribution of the real property, we do not reach the remaining issues raised by appellant pertaining to the amounts of alimony and attorney’s fees awarded the husband. As in McMonagle v. McMonagle, 617 So.2d 373 (Fla. 5th DCA 1993), we remand the case to the trial court so that it may revisit the monetary awards in their totality. In so doing, we note that nothing in the equitable distribution statute requires an even split of marital assets between the parties. Section 61.075(1), while directing the trial court to “begin with the premise that the distribution should be equal,” permits an unequal distribution if “there is a justification for an unequal distribution based on all relevant factors.”

AFFIRMED in part, REVERSED in part, and REMANDED.

PADOVANO and HAWKES, JJ., concur.

      . The husband was permanently, totally injured as a result of an automobile accident that occurred before the marriage, and, as described by the lower court, was "unemployable.”

      . In equitably distributing the parties' assets, the lower court should determine the value of all property to be distributed, both real and personal.


text:
    Dewayne HARRELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-6150.
    District Court of Appeal of Florida, First District.
    June 28, 2006.
    Dewayne Harrell, pro se, Petitioner.
    Charlie Crist, Attorney General, and J. Andrew Atkinson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

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


text:
    Harold FREEMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5919.
    District Court of Appeal of Florida, First District.
    June 28, 2006.
    Harold Freeman, pro se, Petitioner.
    Charlie Crist, Attorney General, and Diego Puig, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

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


text:
    Richard OLIVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5982.
    District Court of Appeal of Florida, First District.
    June 28, 2006.
    Richard Oliver, pro se, Petitioner.
    Charlie Crist, Attorney General, and Diego Puig, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Munn v. Florida Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

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


author: SHEPHERD, J.

text:
    Genevieve Dufeal BOUQUETY, Appellant, v. Cedric BOUQUETY, Appellee.
    No. 3D05-434.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.

      Clyne & Self, and Reginald J. Clyne, Miami, for appellant.
    Betsy Warwick, for appellee.
    Before GREEN, SHEPHERD and ROTHENBERG, JJ.
   SHEPHERD, J.

Petitioner, Genevieve Dufeal Bouquety, appeals a final order of the Miami-Dade Circuit Court dismissing all proceedings brought by her against the respondent former husband to enforce the payment of child support arrearages and attorney fees on the ground the court lacked subject matter jurisdiction.

The issue presented is whether either of two purported modifications to a Miami-Dade Circuit Court child support order— one entered by the Civil Court of Port-au-Prince, Haiti and the other by the Fort-de-France District Court in Martinique— ousted the circuit court of jurisdiction to enforce its previously entered orders awarding child support and attorney fees. We hold that neither order disturbed the jurisdiction of the Miami-Dade court to enforce the arrearages and attorney fees in this case and, therefore, reverse the trial court’s dismissal.

DISCUSSION

Our resolution of this case requires us to construe section 88.2051 of the Uniform Interstate Family Support Act (UIFSA), §§ 88.0011-9051, Fla. Stat. (2000). UIF-SA has been adopted by every state in the United States.

Under UIFSA as adopted in Florida, the effect of a purported modification of a child support order issued by a court located in a foreign country is governed by sections 88.2051(2) and (3) of the Florida Statutes. Insofar as relevant to our discussion, these sections read:

(2) A tribunal of this state issuing a child support order consistent with the law of this state may not exercise its continuing jurisdiction to modify the order if the order has been modified by a tribunal of another state pursuant to this act or a law substantially similar to this act.
(3) If a child support order of this state is modified by a tribunal of another state pursuant to this act or a law substantially similar to this act, a tribunal of this state loses continuing exclusive jurisdiction with regard to prospective enforcement of the order issued in this state, and may only:
(a) Enforce the order that was modified as to amounts accruing before the modification!)]

§ 88.2051(2)-(3)(a), Fla. Stat. (2000).

A plain reading of these sections reveals that a tribunal, such as the Miami-Dade Circuit Court, that issues a child support order, may not modify or enforce its own order if the order has been modified by a tribunal of another state pursuant to a law substantially similar to a law of this state. However, if a qualifying order is entered by another state, the issuing tribunal — the Miami-Dade Circuit Court in this case — retains prospective jurisdiction to enforce amounts accruing before modification by the court in the other state. Of course, a foreign tribunal entering a modification order must be possessed of both subject matter jurisdiction to enter the order and personal jurisdiction over all nonresident respondents against who the order is intended to apply. See Whipple v. JSZ Fin. Co., 885 So.2d 933 (Fla. 4th DCA 2004) (full faith and credit will not be afforded a judgment of a foreign court if the foreign court lacked either personal or subject matter jurisdiction); Rains v. Washington, Dep’t of Soc. & Health Servs., 98 Wash.App. 127, 989 P.2d 558, 562 (2000) (“[a] judgment is valid if the court had jurisdiction, there was notice, and the court was competent”); § 88.2011(1), Fla. Stat. (2000) (providing for broad jurisdiction over nonresidents to establish, enforce, or modify support orders consistent with the constitution).

In this case, the Miami-Dade Circuit Court child support order was first in time, having been entered by a special master on July 25, 2000, and confirmed by the circuit court on September 1, 2000. The Miami-Dade support order called for a monthly payment of $1,000 by the respondent to the petitioner effective as of July 1, 2000. Petitioner also was awarded $14,850 for legal fees incurred securing the support award. At the time of these proceedings, petitioner, respondent, and the minor child, all French nationals, resided in Miami-Dade County as a consequence of respondent’s temporary assignment to South Florida by his employer from the family’s permanent home in Martinique.

Rather than faithfully comply with these orders, however, respondent in November 2000 filed for dissolution of marriage and modification of the Miami-Dade child support order in the Civil Court of Port-au-Prince, Haiti, where he by then had been transferred. The parties dispute whether the Haitian court acquired jurisdiction over petitioner because she and her son returned to Martinique at the time of respondent’s transfer. Nevertheless, in April 2001, the Haitian court entered a decree dissolving the parties’ marriage and, two months later, reduced respondent’s child support obligation to the U.S. equivalent of approximately $400 per month. Petitioner retaliated with a petition on her own turf in the Fort-de-France District Court in Martinique for a determinaey of parentage and award of child support in the increased sum of approximately $3,000 per month U.S. equivalent. On March 16, 2004, the Martinique court established paternity and ordered the respondent to pay petitioner, for the benefit of the child, 790 euros per month, which at the time equated to a monthly support payment almost identical to that awarded by the lower court here.

The Petitioner alleges the respondent failed to make several monthly payments due under the Florida child support award prior to the entry of the June 2001 modification by the Civil Court of Porh-au-Prince, and also seeks recovery in Florida of the monthly difference between the Florida and Haitian court awards of approximately $600 per month from June, 2001 until March 16, 2004, when the Martinique court intervened. Petitioner makes no deficiency claim for any period after March 16, 2004.

The circuit court dismissed the petitioner’s enforcement proceedings on the ground that her Fort-de-France District Court filing in Martinique divested the Miami-Dade Circuit Court of jurisdiction over its child support order. We conclude the court below erred in dismissing petitioner’s enforcement proceedings for two reasons: (1) respondent failed to prove the Martinique order was entered pursuant to a law substantially similar to UIFSA, Speedway SuperAmerica, L.L.C. v. Dupont, 933 So.2d 75, 88 (Fla. 5th DCA 2006) (“[a]ny doubt about subject matter jurisdiction is resolved against the moving party”); and, (2) even if it was, UIFSA allows the issuing court, Florida, to enforce its child support order “as to amounts accruing before the modification.” See § 88.2051(3), Fla. Stat. (2000).

We also reject the respondent’s argument that the purported Haitian court modification affects the jurisdiction of the court below to afford relief to the petitioner, again for two reasons. First, we are possessed of grave doubt that the assertion by the Civil Court of Port-au-Prince of jurisdiction over the petitioner in that court comports with our notions of due process and fundamental fairness. See Whipple v. JSZ Fin. Co., 885 So.2d at 936; Rains v. Washington, 989 P.2d at 562. Second, even if petitioner was properly and appropriately haled into court in Haiti, respondent again offered no proof in our court that the Haitian modification order was entered pursuant to any law similar to UIFSA. See Speedway SuperAmerica, L.L.C. v. Dupont, 933 So.2d at 88.

For these reasons, we reverse the trial court’s order dismissing petitioner’s enforcement actions for lack of subject matter jurisdiction.

      . In. 1996, Congress required all states to enact UIFSA by January 1, 1998. See 42 U.S.C.A. § 666(f) (West 1996). By the year 2000, UIFSA was in effect in all states. See Patricia W. Hatamyar, Interstate Establishment, Enforcement, and Modification of Child Support Orders, 25 Okla. City U. L. Rev. 511, 512 (2000).

        . UIFSA includes foreign jurisdictions in the definition of a state. § 88.1011(19)(b), Fla. Stat. (2000). Domestically, the Full Faith and Credit for Child Support Orders Act, 28 U.S.C.A. § 1738B (West 2000), has pre-empt-ed UIFSA with respect to modifications of child support orders rendered by another state of the United States. See Kramer v. Kramer, 698 So.2d 894 (Fla. 4th DCA 1997); State, Dep’t of Revenue on Behalf of Skladanuk v. Skladanuk, 683 So.2d 624 (Fla. 2d DCA 1996). Because the modification orders here were issued by courts in other countries, the Full Faith and Credit for Child Support Orders Act does not apply to this case. 28 U.S.C.A. § 1738B(b) (West 2000).

      . U.S. Const. art. XIV; Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104-05, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 463-64, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); World-Wide Volkswagen v. Woodson, 444 U.S. 286, 289-91, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). See, e.g., In re Paternity of Carlin L.S., 226 Wis.2d 79, 593 N.W.2d 486, 488 (1999); U.I.F.S.A. § 201 cmt., 9 (pt. IB) U.L.A. 275-77 (1999); id. Prefatory Note, 9 (pt. IB) U.L.A. 238-43 (1999) (the exercise of personal jurisdiction must be consistent with the Due Process Clause of the Fourteenth Amendment of the United States Constitution). See also Rains v. Washington, 989 P.2d at 562.

      . Petitioner also sought a decree of divorce in the court below. However, this portion of her petition was properly dismissed because neither party met Florida’s residency requirement prior to the filing. See § 61.021, Fla. Stat. (2000). The parties do not dispute the trial court had jurisdiction to enter the Florida child support order. See § 88.2011, Fla. Stat. (2000).