author: ROTHENBERG, Judge. RAMIREZ J.,

text:
    Nicholas PLAZA, Appellant, v. FISHER DEVELOPMENT, INC., et al., Appellees.
    No. 3D06-3190.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.

      Templer Law and Laura P. Templer, for appellant.
    Richard A. Sherman, Sr., Ft. Lauder-dale; Wolpe, Leibowitz, Alvarez, Fernandez and George L. Fernandez, Miami, for appellee Fisher Development, Inc.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The plaintiff, Nicholas Plaza (“the Plaintiff”), appeals from an order granting final summary judgment in favor of defendant Fisher Development, Inc. (“Fisher”). We affirm.

In 1999, the Plaintiff, who was an employee of Pottery Bam, was allegedly injured when he fell onto a conveyor system at a Pottery Barn store. In 2001, the Plaintiff filed suit against several entities, including Automated Conveyor Systems, Inc. (“Automated Conveyor”), Northern Steel Company (“Northern Steel”), and Fisher. The Plaintiffs second amended complaint alleges two counts against Fisher, strict liability (Count V) and negligence (Count VI). Count V alleges that Fisher is strictly liable for the injuries sustained by the Plaintiff because Fisher was the distributor of the subject conveyor, which was defective when it left Fisher’s possession. Count VI alleges that Fisher, “through its employees and/or agents, was negligent in the manner in which it installed or assembled the conveyor.” The Plaintiffs second amended complaint alleges that the subject conveyor was defective because the “pinch point” was not protected by a guard and because there was no “kill-switch” control. In its answer to the second amended complaint, Fisher denied these allegations.

After approximately five years of defending against this lawsuit, Fisher filed a motion for final summary judgment, arguing that based on the undisputed facts, it was entitled to judgment as a matter of law. Fisher asserted that the undisputed facts demonstrate that it was hired by Williams-Sonoma, Inc., Pottery Barn’s parent company, to act as the general contractor for the construction of the Pottery Barn store where the Plaintiff was allegedly injured; Williams-Sonoma and its architect supplied the plans and specifications, which included the installation of the subject conveyor; Fisher entered into a subcontract with Northern Steel, whereby Northern Steel agreed to provide and install the subject conveyor; the subject conveyor was designed, manufactured, and sold by Automated Conveyor; the allegedly defective conditions were patent; and Williams-Sonoma had inspected, accepted, and approved the construction of the Pottery Barn store.

As to the strict liability count, Fisher, citing to Neumann v. Davis Water & Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), argued, in part, that it was entitled to summary judgment because the subject conveyor is a structural improvement to real property, not a product, and Florida law recognizes that principles of strict liability are not applicable to structural improvements to real property. As to the negligence count, Fisher argued that the allegedly defective conditions were clearly patent, and under the Slavin doctrine, a contractor cannot be held liable for injuries sustained by third parties that occurred after the contractor completed its work and the owner of the property accepted the contractor’s work if the defects causing the injury were patent.

In support of its motion for final summary judgment, Fisher submitted the affidavit of Denise Sharp, Fisher’s President. She averred that Fisher is not a distributor or manufacturer of conveyor systems; it did not manufacture, distribute, or sell the subject conveyor system; Northern Steel was the subcontractor hired by Fisher to install the subject conveyor system; and in 1997, Williams-Sonoma conducted the final walk-through of the Pottery Barn store, and accepted all of the work completed by Fisher and its subcontractors.

At the hearing on the motion for summary judgment, it was undisputed that when a customer purchases an item at the Pottery Barn store, the subject conveyor is utilized to transport the item from Pottery Barn’s storage area, which is located on the second floor, to Pottery Barn’s retail area, which is located on the first floor. The subject conveyor is affixed to a stretcher that has an electrical system, and the electrical system is affixed to the building.

The trial court granted Fisher’s motion for final summary judgment. Thereafter, the Plaintiff filed the instant appeal.

The Plaintiff contends, in part, that the trial court erred in granting summary judgment in favor of Fisher as to the strict liability count because the subject conveyor is a product, not a structural improvement to real property, and therefore, Fisher can be held strictly liable. We disagree.

In West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), the Florida Supreme Court adopted the doctrine of strict liability as set forth in section 402A of the American Law Institute Restatement (Second) of Torts. As summarized by the court, “strict liability should be imposed only when a product the manufacturer places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” West, 336 So.2d at 86 (emphasis added). This doctrine has since been expanded “to others in the distributive chain including retailers, wholesalers, and distributors.” Samuel Friedland Family Enters. v. Amoroso, 630 So.2d 1067, 1068 (Fla.1994).

Fisher, citing to Neumann, argues on appeal, as it did below, that the subject conveyor is a structural improvement to real property, not a product, and therefore, the doctrine of strict liability is inapplicable. In Neumann, a three-year-old boy drowned after he fell into a sewage treatment tank. The plaintiffs asserted a strict liability claim against the defendant, who was the installer or assembler of the sewage treatment tank. The trial court dismissed with prejudice the strict liability claim against the defendant. The plaintiffs appealed the trial court’s decision to the Second District Court of Appeal. The Second District, noting that the sewage treatment tank was “an integral part of the sewage facility,” declined “to extend the strict liability principle of West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), to structural improvements to real estate.” Neumann, 433 So.2d at 561; see Easterday v. Masiello, 518 So.2d 260, 261 (Fla.1988) (“[I]t has long been recognized that the doctrine of strict products liability does not apply to structural improvements to real estate.”); Jackson v. L.A.W. Con- trading Corp., 481 So.2d 1290, 1291 (Fla. 5th DCA 1986).

The Plaintiff argues that Neumann is inapplicable because the subject conveyor system is a product, not a structural improvement to real property. In support of his argument, the Plaintiff relies on TriPak Machinery, Inc. v. Hartshorn, 644 So.2d 118 (Fla. 2d DCA 1994). In TriPak, the plaintiffs, Mr. and Mrs. Harts-horn, filed a strict liability claim against the manufacturer of the conveyor, Tri-Pak Machinery, Inc. (“Tri-Pak”), alleging that Mrs. Hartshorn was injured when her finger got caught in a conveyor at a tomato packing plant. The trial court instructed the jury on strict liability and negligence. The jury returned a verdict in favor of Tri-Pak, and thereafter, the trial court granted the plaintiffs’ motion for new trial. Tri-Pak appealed to the Second District.

The Plaintiff acknowledges that Tri-Pak does not address whether a conveyor is a product or a structural improvement to real property, but argues that because the trial court instructed the jury on strict liability, the trial court found that the conveyor was a product subject to strict liability principles. The Plaintiffs, reliance on Tri-Pak is misplaced. First, there is no indication in the opinion that this issue was raised before the trial court, or that the trial court even considered this issue. Next, Tri-Pak is factually distinguishable as the lawsuit was filed against the manufacturer of the conveyor system, and in the instant case, Fisher is not the manufacturer of the subject conveyor system.

The Plaintiff also relies on the First District Court of Appeal’s decision in Pamperin v. Interlake Cos., 634 So.2d 1137 (Fla. 1st DCA 1994), in support of his argument that the conveyor system is a “product,” and therefore, within the scope of the strict liability doctrine. In Pampe-rin, the plaintiffs employer was hired to install a storage rack system that was manufactured by Interlake Companies Corporation (“Interlake”). While installing the storage rack system, the plaintiff fell due to a defect in the storage rack system, and he was injured. The plaintiff filed a strict liability action against the manufacturer, Interlake. Interlake moved for .summary judgment, arguing, in part, that it could not be held strictly liable because the storage rack system was an improvement to real property, not a product. The trial court granted Interlake’s motion for summary judgment. The plainr tiff, appealed to the First District, which reversed, holding, in part, as follows:

We address now the lower court’s determination that the instant storage rack system is not a product within the scope of the strict liability doctrine. We are aware of the line of cases' holding that structural improvements to real property are not generally considered products for purposes of products liability actions. Easterday v. Masiello, 518 So.2d 260 (Fla.1988) (jail facility); Seitz v. Zac Smith & Co., Inc., 500 So.2d 706 (Fla. 1st DCA 1987) (floodlight tower); Craft v. Wet ‘N Wild, Inc., 489 So.2d 1221 (Fla. 5th DCA 1986) (amusement park water slide); Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), review denied, 441 So.2d 632 (Fla.1983) (sewage treatment tank); and Edward M. Chadbourne, Inc. v. Vaughn, 491 So.2d 551 (Fla.1986) (public road). We conclude, however, that the lower court erred in likening this rack system to such permanent fixtures. Expert witness Coloney attested that such storage rack systems can be, and are, disassembled and resold and are not permanent improvements to real property. We cannot glean from the order below whether the lower court overlooked, disregarded, or discounted this testimony. We, however, find it compelling on this issue. Upon review of the record below, and after carefully analyzing existing case law on the subject, we conclude, as a matter of law, that the instant storage rack system is a product for purposes- of the underlying action.

Pamperin, 634 So.2d at 1140.

We'find that Pamperin is distinguishable because the strict liability count in that case was filed against the manufacturer of the storage rack system, whereas, the strict liability count, which is the subject of this appeal, was filed against the general contractor. We are equally unpersuaded by the notion that the determination of whether the subject storage rack system is a “product,” should be governed by whether it can be disassembled and then resold. If that was the case,-practically anything affixed to real property would constitute a, “product.” More importantly, Plaza, never presented any sworn testimony that the subject conveyor system could be disassembled and resold. Pamperin is, therefore, inapplicable.

Although we have not located a Florida case addressing whether a conveyor system is a product or a structural improvement to real property, courts in other jurisdictions have concluded that the subject conveyor systems before them were structural improvements to real property, not a product. In McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907 (1989), Mr. McCormick was injured when his arm got caught in a conveyor belt of a coal delivery system. Two of the defendants filed motions for summary judgment, arguing that the statute of repose barred the action. The statute of repose provided, in part, as follows: “[A] civil action or proceeding brought against any person lawfully performing or furnishing the design, planning supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages....” Id. at 908 (quoting 42 Pa. Cons.Stat. § 5536). The trial court granted the motions for summary judgment finding that the conveyor belt on which Mr. McCormick.was injured was an improvement to real property, not a product.

The Pennsylvania Supreme Court agreed-with the trial court’s findings and concluded that, as a matter of law, the conveyor system was an “improvement to real property.” In making this determination, the court relied on the definition of “improvement” in Black’s Law Dictionary, a definition it found “comports with the ordinary and common usage of the word.” Id. The court noted that Black’s Law Dictionary defined “improvement” as “[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.” Id. (quoting Black’s Law Dictionary 682 (5th ed.1979)).

Similarly, in Hilliard v. Lummus Co., 834 F.2d 1352 (7th Cir.1987), the United States Court of Appeals, Seventh Circuit, addressed whether a conveyor was “an improvement to real property” as the term is used in an Illinois statute of repose. The defendant, Lummus Company (“Lum-mus”), moved for summary judgment arguing that it was entitled to judgment based on a statute of repose, which provides: “No action based on tort ... may be brought for an act or omission of such person in the design, planning, supervision, observation or management of construction or construction of an improvement to real property after 12 years have elapsed from the time of such act or omission....” Id. at 1354 (citing Ill.Code Civ. P. § 13-214(b)). In response, the plaintiff, Mr. Hilliard, argued that Lummus did not participate in the improvement of real property, but merely supplied a product that was installed in real property. Mr. Hilliard further argued that the screw conveyor was not a large piece of equipment and that it could be removed easily from the owner’s property without causing significant damage to the property or loss of value to the property. The district court rejected Mr. Hilliard’s argument, and granted summary judgment in favor of Lummus, stating as follows:

The uncontested deposition testimony establishes that the conveyor was installed in about 1950 along with the construction of the building and has remained there ever since. The conveyor was not a repair to or a replacement of anything that previously existed. Furthermore, we do not think that it can seriously be doubted that the conveyor substantially enhanced the value of the property. The plant is designed to produce processed cocoa, and the conveyor was built as an integral component of that process.
Hilliard does not dispute any of this, but rather contests only Lummus’ assertion that the conveyor was bolted or welded to the concrete or steel supports .... Hilliard appears to be arguing that the conveyor is not a “fixture” and implies that this is a requirement for the application of § 13-214. We disagree. As we explained above, the words of a statute are to be given their common ordinary meaning unless the statute indicates otherwise. Nothing in § 13-214 indicates that it intended the peculiar definitions of fixture law to apply to that section.... If Hilliard’s argument is intended to raise an issue as to the conveyor’s permanence, we must disagree. Taken to its logical conclusion, Hilliard’s argument would mean that nothing could be considered an “improvement to real property” if there were any possibility that the structure might be redesigned or rebuilt at any time, no matter how far into the future. We do not think this is a reasonable interpretation of the statutory language. We reiterate that the undisputed testimony shows that the original conveyor was installed in about 1950 and has been in place ever since.... In sum, we conclude that the conveyor constitutes an “improvement to real property” for purposes of § 13-214, and that § 13-214 therefore applies to bar Hilliard’s negligence claim.

Id. at 1355 (last omission added). The Seventh Circuit, agreeing with the district court’s analysis, concluded that the screw conveyor was an “improvement to real property,” not a product. Id. at 1356.

The United States Court of Appeals, Fourth District, in Hill v. Bechtel Corp., 107 F.3d 866, 1997 WL 86029 (4th Cir. 1997) (unpublished table opinion), addressed whether a conveyor was “an improvement to real property,” as the term is used in a Maryland statute of repose. In Hill, the plaintiff was injured when her arm was caught in a conveyor belt. The defendant sought summary judgment, arguing that the conveyor belt was an “improvement to real property,” as the term is issued in Maryland’s statute of repose. The district court granted the motion. The Fourth Circuit affirmed the trial court’s order, concluding that, as a matter of law, the conveyor belt was an “improvement to real property.” Id.

Additionally, the court in Hidalgo v. Fagen, Inc., 206 F.3d 1013 (10th Cir.2000), found that the subject conveyor was a structural improvement to real property, not a product. Sabino Hidalgo (“Hidal-go”), was injured while cleaning a screw conveyor at a meat packing plant. He filed suit against several entities, including Fagen, Inc. (“Fagen”), which is the contractor hired to construct the conveyor system. The district court granted partial summary judgment in favor of Fagen as to the strict liability claim, finding that under Colorado law, strict liability principles do not apply to improvements to real property. On appeal to the United States Court of Appeals, Tenth Circuit, the court affirmed the district court’s decision, stating, “In viewing the summary judgment evidence on this point, it appears to us that Hidalgo has not come forward with sufficient evidence to demonstrate that Fagen sold a product, rather than sold services, resulting in an improvement to real property.” Id. at 1018.

In the case before us, the undisputed facts demonstrate that the subject conveyor system was installed in 1997, when the Pottery Barn store was being constructed by Fisher. The purpose of the conveyor system is to transport items that have been purchased by Pottery Barn customers from Pottery Barn’s storage area, which is located on the second floor, to Pottery Barn’s retail area, which is located on the first floor. The subject conveyor is affixed to a stretcher that has an electrical system, and the electrical system is affixed to the building. Thus, it is clear that the subject conveyor is “an' integral part of’ Pottery Barn’s operation, in that the subject conveyor allowed items sold to customers to travel .easily from the second floor storage area to the first floor retail area, and the conveyor system is affixed to the real property, thereby adding value to the property. Neumann, 433 So.2d at 561. Thus, we conclude that, as a matter of law, the subject conveyor is a structural improvement to real property, not a product. As Florida law recognizes that principles of strict liability are not applicable to structural improvements to real property, the trial court properly granted summary judgment in favor of Fisher as to that count.

The Plaintiff additionally argues that the trial court erred by granting summary judgment in Fisher’s favor as to the negligence count based on the Slavin doctrine. We disagree.

Under the Slavin doctrine, a contractor cannot be held liable for injuries sustained by third parties when the injuries occur after the contractor completed its work, the owner of the property accepted the contractor’s work, and the defects causing the injury were patent. Slavin, 108 So.2d at 467; Foreline Sec. Corp. v. Scott, 871 So.2d 906, 909 (Fla. 5th DCA 2004) (“The Slavin doctrine extinguishes the liability of a contractor for a defect by shifting the duty of care originally owed to others by the contractor to the accepting owner as long as any defects are patent.”); Mori v. Indus. Leasing Corp., 468 So.2d 1066, 1067 (Fla. 3d DCA 1985) (“In Slavin, the Florida supreme court clearly adopted the rule that a contractor is not liable for injuries to third parties caused by obvious ’ defects or dangerous conditions which occur after the contractor has completed the work and it has been accepted by the owner.”). We acknowledge that in most instances, whether an alleged defect is patent- or latent is a question of fact for the jury to determine, and therefore, summary judgment cannot be granted. See Brady v. State Paving Corp., 693 So.2d 612, 613 (Fla. 4th DCA 1997); Kola Invs., Inc. v. Sklar, 538 So.2d 909, 915-16 (Fla. 3d DCA 1989); Milby v. Pace Pontiac, Inc., 176 So.2d 554, 557 (Fla. 2d DCA 1965) (holding that whether an alleged defect is patent or latent should be decided by jury unless the issue can be answered as a matter of law). However, in the instant case, as the undisputed material facts demonstrate that, as a matter of law, the alleged defects were patent, and that the injury occurred after Fisher completed its work on the Pottery Barn store and Williams-Sonoma accepted Fisher’s work, the trial court correctly entered summary judgment in favor of Fisher under the Slavin doctrine as to the negligence count. See Ed Ricke & Sons, Inc. v. Green, 609 So.2d 504, 507 (Fla.1992) (affirming summary judgment based on Slavin doctrine, concluding that “[t]he record establishes that the pool of hot water in this case was a patent defect”); Gustinger v. H.J.R., Inc., 573 So.2d 1033, 1034 (Fla. 3d DCA 1991) (affirming entry of summary judgment in favor of construction company where the Department of Transportation knew or should have known about the defect); Mori, 468 So.2d at 1066 (affirming trial court’s order granting construction contractor’s motion for directed verdict on negligence count based on finding that alleged defects were “obvious”).

Accordingly, we affirm the order under review granting Fisher’s motion for final summary judgment.

Affirmed.

SUAREZ, J., concurs.

RAMIREZ J.,

concurring.

In my view, this case can be easily resolved. Nicholas Plaza has appealed an order granting Fisher Development, Inc.’s motion for summary judgment. Under Florida Rule of Civil Procedure 1.510(c), such a motion must “state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (‘summary judgment evidence’) on which the movant relies.” There is no question that Fisher Development did this.

As the majority opinion states, Plaza sued Fisher Development under strict liability and negligence. On the strict liability count, Fisher averred that (1) it did not manufacture, sell or distribute the subject conveyor; and (2) the conveyor was a structural improvement on the real property. Therefore, it was not liable under strict liability. On the negligence count, Fisher alleged the defective condition was patent, yet the conveyor was inspected, accepted and approved by the owner. The motion was supported by an affidavit and an exhibit.

Under rule 1.510(c), Plaza, as the adverse party, had to identify any summary judgment evidence on which he relied. Plaza failed to do that. In its affidavit, Fisher swore that it was not the manufacturer, seller or distributor of the conveyor. In his Response to the motion, Plaza stated that he did not share in that contention. Instead of coming forward with any sworn facts, Plaza simply quoted his own unverified complaint where he alleged that Fisher was a distributor of the conveyor. As to the conveyor being a structural improvement, Plaza stated that it was “again, a contention neither shared by the plaintiff nor supported by applicable law.” On the conveyor being patently defective, it was “a question particularly suited for jury determination.” When Plaza’s counsel was questioned repeatedly at oral argument as to what genuine issue of material fact was disputed, counsel consistently answered that it was Fisher’s burden to come forward. Respectfully, that position is erroneous. Once Fisher met its initial burden of showing the absence of material disputed issues, the burden shifted to Plaza to prove otherwise either through facts or justifiable inferences from facts presented to the trial court. See Carbonell v. Bell-South Telecomms., Inc., 675 So.2d 705, 706 (Fla. 3d DCA 1996) (citing Stepp v. State Farm Fire & Cas. Co., 656 So.2d 494 (Fla. 1st DCA 1995)). Plaza failed to do this.

As to the negligence count, the majority properly affirms on the basis that the undisputed material facts were that the alleged defects were patent and Fisher’s work was accepted by its customers, Pottery Barn and Williams-Sonoma.

Because Plaza failed to come forward with any evidence to create a genuine issue of material fact, I would affirm the trial judge’s ruling without engaging in a long dissertation of the law on strict liability or negligence. Accordingly, I concur with the result.

      . Slavin v. Kay, 108 So.2d 462 (Fla.1959).

      . The Plaintiff relies on Boddie v. Litton Unit Handling Sys., 118 Ill.App.3d 520, 74 Ill.Dec. 112, 455 N.E.2d 142 (1983), to support its argument that strict liability principles apply to an installed conveyor. However, subsequent cases from Illinois, including Hilliard, have held that a conveyor is an improvement to real property.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Abner REYES, Appellant, v. The SCHOOL BOARD OF MIAMI-DADE COUNTY, Florida, Appellee.
    No. 3D07-1496.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    Hermelee & Geffin, Bruce G. Hermelee, Alan G. Geffin, Miami, and Christopher Perez-Gurri, for appellant.
    Jean Marie Middleton, for appellee.
    Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Sunset Harbour Condo. Assoc. v. Robbins, 914 So.2d 925, 928 (Fla.2005) (“In order to be preserved for further review by a higher' court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”) (citing Tillman v. State, 471 So.2d 32, 35 (Fla.1985)).


text:
    Roberto URQUIZA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-950.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.

      Before RAMIREZ, ROTHENBERG and LAGOA, JJ.
   PER CURIAM.

Affirmed. The complained-of evidentiary rulings do not rise to the level of abuse of discretion. See Penalver v. State, 926 So.2d 1118, 1132 (Fla.2006) (stating that the admissibility of evidence falls within the sound discretion of the trial judge, and trial court’s ruling will be not disturbed on appeal absent a showing of an abuse of discretion); Smith v. State, 866 So.2d 51, 64 (Fla.2004) (stating that the control of prosecutorial comments and conduct during closing arguments fall within the trial court’s discretion, and trial court’s ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion).


text:
    Samira NEKHAILA, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D06-2689.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    Samira Nekhaila, in proper person.
    Javier A. Ley-Soto, for appellee.
    Before COPE, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

This is an appeal of a final order of the Florida Department of Children and Families, which ordered the appellant to repay amounts which were overpaid by the Medicaid Program. The order found that $931.81 was overpaid because of an error of the Department, and $2597.71 through error by the appellant. Under Florida law the Department must recover overpay-ments, regardless of whether overpayment is the result of an error on the part of the Department or the recipient. See § 414.41, Fla. Stat. (2005); Payne v. Fla. Dep’t of Children & Family Servs., 875 So.2d 763 (Fla. 3d DCA 2004); Willis v. Dep’t of Children & Family Servs., 735 So.2d 585 (Fla. 3d DCA 1999). While we sympathize with the appellant’s situation, the statute requires repayment even though a significant portion of the error was attributable to the Department.

The Department has indicated that it has a payment plan option which is available to all benefit recovery clients, such as the appellant. This court’s affirmance of the repayment order is without prejudice to the appellant to contact the Department to work out a payment plan, as indicated in the Department’s additional response filed in this court in October 2007.

Affirmed.


text:
    BROWARD YACHTS, INC., Appellant, v. The CITY OF MIAMI, etc., et al., Appellees.
    No. 3D06-2979.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    Chapman & Galle and Craig T. Galle, for appellant.
    Jorge L. Fernandez, City Attorney, and Warren Bittner, Assistant City Attorney; White & Case and Charles C. Kline and Nicole H. Sulsky, for appellee.
    Before SHEPHERD, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Westinghouse Elec. Corp. v. Jacksonville Transp. Auth., 491 So.2d 1238 (Fla. 1st DCA 1986) (holding that [ajbsent extraordinary circumstances ..., a non-bidder does not have standing to challenge [a] successful bid[ ] by another party).


text:
    Michael N. LEVIN, Appellant, v. Moises FRANCO, Appellee.
    No. 3D06-2424.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    Mark Perlman, Hallandale, for appellant.
    Jason M. Wandner, Miami, for appellee.
    Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Jackson v. Echols, 937 So.2d 1247 (Fla. 3d DCA 2006); Miguez v. Miguez, 824 So.2d 258 (Fla. 3d DCA 2002).


text:
    Alexander Florenzo FLORES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1510.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    Rene A. Sotorrio, Coral Gables, for appellant.
    Bill McCollum, Attorney General, and Jill Kramer Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and WELLS and CORTIÑAS, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion under Florida Rule of Criminal Procedure 3.850. Because all of the claims raised by the defendant are refuted by the record, we affirm the trial court’s denial of the defendant’s claims for post-conviction relief.

Affirmed.


text:
    L.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-864.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before CORTINAS and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Fla. R. Juv. P. 8.135(b)(2); Brannon v. State, 850 So.2d 452 (Fla.2003).


author: SHEPHERD, J.

text:
    GEICO GENERAL INS. CO., et al., Petitioners, v. Leonard H. BERNER, et al., Respondents.
    Nos. 3D07-560, 3D07-440.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.

      Kubicki Draper and Maria Kayanan, Miami; Fowler White Boggs Banker and Charles W. Hall and Mark D. Tinker, St. Petersburg; Timothy W. Harrington, Miami; Eduardo J. Serer, for petitioners.
    Deutsch & Blumberg and James C. Blecke, Miami, for respondents.
    Before SHEPHERD, CORTINAS, and ROTHENBERG, JJ.
   On Motion for Rehearing

SHEPHERD, J.

We grant the Petitioner’s, Juan Daniel Hernandez, Motion for Rehearing, withdraw our September 12, 2007 opinion, and substitute the following opinion in its place.

Petitioners, Government Employees Insurance Company (GEICO) and Juan Daniel Hernandez, the defendants below, seek certiorari review of a trial court order obtained by respondent, Leonard H. Ber-ner, GEICO’s insured and the plaintiff below, limiting GEICO and Hernandez’s choice of defense medical expert in an upcoming automobile accident trial to the doctor assigned to examine Berner and evaluate his claim for personal injury protection benefits under the policy. The subject of the trial will not be whether Berner has received all personal injury protection benefits due and payable to him under his GEICO policy, but rather whether Hernandez is responsible to Berner as a third-party tortfeasor, and whether GEI-CO must afford uninsured motorist benefits to Berner under the policy. We grant the petitions for writ of certiorari and quash the order under review.

This case arises out of a motor vehicle accident in which Hernandez struck Ber-ner as he walked across Wayne Avenue in Miami Beach. Hernandez is alleged to be uninsured or underinsured. After the accident, Berner submitted a claim for personal injury protection benefits to GEICO. GEICO requested that Berner submit to a physical examination pursuant to the personal injury protection coverage section of the policy. Berner was examined by Dr. Martin Mendelssohn, an orthopedic specialist selected by a third-party vendor or agency that supplies services of this type for the benefit of companies like GEICO. The precise relationship of the vendor to GEICO is not well developed in the record.

Thereafter, Berner filed the present action against Hernandez and GEICO. Two months into the litigation, GEICO served a request for examination of Berner by another orthopedic specialist pursuant to Florida Rule of Civil Procedure 1.360(a)(1)(A), which authorizes such an examination when the physical condition of a party is in controversy and there is “good cause” for the examination. Fla. R. Civ. P. 1.360(a)(2). Berner objected to GEICO’s request, urging an absence of good cause because GEICO already had its examination. Hernandez countered with his own request for medical examination pursuant to Rule 1.360(a)(1)(A). Berner objected to Hernandez’s request on the ground that Hernandez and GEICO shared a commonality of interests in the damage phase of the litigation. The trial court agreed with Berner, and ordered that Mendelssohn serve as the defense medical expert for both GEICO and Hernandez, conditioned upon either being able to subject Berner to a further examination by Mendelssohn. GEICO and Hernandez have separately petitioned for review of this order as it pertains to their respective interests. We have consolidated their petitions for purposes of this proceeding.

For its account, GEICO contends the trial court impermissibly and without legal justification preempted its choice of expert medical witness by forcing it to use Dr. Mendelssohn simply because he examined the plaintiff, pre-suit, in connection with his personal injury protection claim, through assignment by an agency and not by GEICO or its counsel’s choice. GEICO further argues that if we do not correct this error now, the trial court decision will cause it to suffer material harm throughout the remainder of the proceeding below, for which there will be no remedy on appeal. See Somarnba v. Ali, 941 So.2d 526, 528 (Fla. 3d DCA 2006) (explaining that should the order precluding the plaintiff from taking a third party’s deposition stand, “on final appeal it would be difficult for [the court] to determine how his testimony would have affected the outcome of this ease[ ]”); Sabol v. Bennett, 672 So.2d 93, 94 (Fla. 3d DCA 1996) (recognizing that an order “which has the effect of denying a party the right to depose an alleged material witness inflicts the type of harm that cannot be corrected on appeal since there would be no practical way to determine after judgment what the testimony would be or how it would affect the result[]”) (internal quotation marks omitted); Ruiz v. Steiner, 599 So.2d 196, 197 (Fla. 3d DCA 1992) (“Certiorari review of orders denying discovery has been granted where it was found that the injury caused by the order was irreparable.”). We agree.

Assuming the existence of “good cause” within the meaning of Florida Rule of Civil Procedure 1.360(a)(2) — not usually open to substantial debate in a personal injury action — the defendant has the right to have the complainant examined by a qualified medical expert or experts to defend itself. In such a circumstance, Florida Rule of Civil Procedure 1.360(a)(1)(A) expressly allows the defendant to select the examining expert. The Rule states:

(a) Request; Scope.
(1) A party may request any other party to submit to, or to produce a person in that other party’s custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.
(A) When the physical condition of a party or other person under subdivision (a)(1) is in controversy, the request may be served on the plaintiff without leave of court after commencement of the action, and on any other person with or after service of the process and initial pleading on that party. The request shall specify a reasonable time, place, and manner, conditions, and scope of the examination and the person or persons by whom the examination is to be made.

Fla. R. Civ. P. 1.360(a)(1)(A) (emphasis added); see also State Farm Mut. Auto. Ins. Co. v. Shepard, 644 So.2d 111 (Fla. 2d DCA 1994) (granting certiorari and quashing order requiring State Farm, the uninsured motorist carrier, to use a particular physician); Toucet v. Big Bend Moving & Storage, 581 So.2d 952 (Fla. 1st DCA 1991) (concluding the defendant was entitled to have his own chosen expert conduct physical examination pursuant to Florida Rule of Civil Procedure 1.360, when all previous examinations had been performed by experts selected by the plaintiff). The purpose of Rule 1.360 is to produce an even playing field at trial. In the usual personal injury case, one or more medical practitioners already will have examined and treated the claiming plaintiff. The Rule simply allows the defense the opportunity to respond with its own experts if it so desires.

Berner nevertheless argues GEI-CO has been afforded all ability to respond as required by Rule 1.360(a)(2) because Berner already acquiesced to an examination at GEICO’s behest pursuant to the personal injury protection coverage section of his automobile insurance policy. We disagree. There is a substantial legal and practical difference between an insurer’s evaluation of a personal injury protection benefit claim and a claim for uninsured (or underinsured) motorist benefits. The coverages are different, the claims focus is different, and the economics of the claims handling processes is different.

The purpose of personal injury protection coverage is to provide the insured with “swift and virtually automatic payment so that the insured may get on with his life without undue financial interruption.” Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-84 (Fla.2000) (quoting GEICO v. Gonzalez, 512 So.2d 269, 271 (Fla. 3d DCA 1987)). Payments are to be made if the expenses incurred were “reasonable, related and necessary.” USAA Cas. Ins. Co. v. Shelton, 932 So.2d 605, 606 (Fla. 2d DCA 2006). Moreover, the basic personal injury protection coverage is a modest $10,000. § 627.736(1), Fla. Stat. (2006). Because substantial penalties can be imposed against an insurer who fails to pay a modest-sized personal injury protection benefit claim within thirty days without “reasonable proof’ that it is not payable, insurers sometimes are motivated to give insureds the benefit of the doubt by paying a personal injury protection benefit claim it otherwise might have contested. Shelton, 932 So.2d at 607-08.

In contrast, the policy behind uninsured and underinsured motorist coverage is to treat the insured the same as if the tort-feasor had been financially responsible to the limit of coverage purchased by the insured. Id. at 608 (“The purpose of the [uninsured motorist] insurance is to provide a source of recovery when the insured has been injured by a tortfeasor with insufficient or no insurance.”). Not only are the financial stakes almost always higher, but also more exacting, traditional principles of “causation” and “foreseeability” are in play. Nationwide Mut. Fire Ins. Co. v. Race, 508 So.2d 1276, 1279 (Fla. 3d DCA 1987). For these reasons, personal injury protection benefits examinations are likely to be more cursory than might otherwise occur, and frequently are conducted by less-credentialed or experienced medical professionals. The facts of this case illustrate the point. Dr. Mendelssohn’s practice is almost entirely that of a consultant to the insurance industry, and the scope of the charge given him by the retaining third-party vendor expressly excluded traditional “causation” and “foreseeability” determinations.

Under these circumstances, we conclude that to restrict an insurer’s choice of defense medical expert to a physician consulted for a reason other than that for which the examiner was retained is inconsistent with the purpose and plain language of Rule 1.360(a)(1)(A). In addition, if we were to approve the trial court decision in this case, we would act contrary to the interests of the insurance consuming public, who, in a rational economic world, would be apt to find their insurers ordering more extensive and expensive personal injury protection benefits examinations so as not to have their hands tied from needed discovery at a later date. We are loath to thus insert ourselves into the insurance market place. See Mayer v. Ill. N. Ry., 324 F.2d 154, 156 (7th Cir.1963) (holding that for both practical and economic reasons, it generally is permissible for parties to conduct more than one examination when, as here, the first one was not adequate or complete); see also Strasser v. Prudential Ins. Co., 1 F.R.D. 125 (W.D.Ky.1939).

We also conclude the trial court departed from the essential requirements of law by failing to afford Hernandez the benefit of Florida Rule of Civil Procedure 1.360. For the foregoing reasons, we grant the petitions, quash the order under review, and remand for further proceedings consistent herewith.

      . Notably, the contractual uninsured motorist coverage pre-suit medical examination provision is also more exacting than the parallel provision in the personal injury benefit coverage section of the policy:
      Section II — Personal Injury Protection

      CONDITIONS

      3. Proof of Claim ...
      As soon as practicable the person making the claim shall give to us written proof of claim, under oath if required, which may include full particulars of the nature and extent of the injuries and treatment received and contemplated, and such other information as may assist us in determining the amount due and payable. Such person shall submit to mental or physical examinations at our expense when and as often as we may reasonably require

      Section IV — Uninsured Motorists Coverage

      CONDITIONS

      4. Proof of Claim ...
      As soon as possible, the insured or other person making claim must give us written proof of claim, under oath if required.

      The injured person will submit to examination by doctors chosen by us, at our expense, as we may reasonably require.


author: ALTENBERND, Judge.

text:
    Monte R. BIXLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2260.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 2007.
    Rehearing Denied Jan. 22, 2008.

      Monte R. Bixler, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Monte R. Bixler appeals an order summarily dismissing his petition for writ of habeas corpus, filed in Pasco County where his judgment and life sentence for capital sexual battery were entered in 1980. All of the issues raised by Mr. Bixler amount to collateral attacks on his judgment and sentence, issues that could have been raised in a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 or a timely petition alleging ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(c). The circuit court dismissed the petition for lack of jurisdiction but also noted that any request for postconviction relief would be time-barred.

As we recently explained in Valdez-Garcia v. State, 965 So.2d 318 (Fla. 2d DCA 2007), the writ of habeas corpus “provide[s] a constitutional remedy to assure the right to seek one’s freedom from detention whenever the law does not otherwise provide an adequate mechanism to obtain relief from illegal detention.” Id. at 322. Here, the provisions of rule 3.850 and rule 9.141(c) provided an adequate mechanism to address the issues now raised by Mr. Bixler in his petition for writ of habeas corpus. Therefore habeas relief was not appropriate.

The circuit court should not have dismissed the petition for lack of jurisdiction because the petition did not allege appropriate grounds for habeas relief. Rather, the circuit court should have treated the petition as a motion for postconviction relief under rule 3.850, or perhaps as a petition alleging ineffective assistance of appellate counsel that required transfer to the appropriate appellate court. The circuit court properly concluded, however, that any such motion or petition was untimely and procedurally barred. See In re Rule 3.850 of Florida Rules of Criminal Procedure, 481 So.2d 480, 480 (Fla.1985) (“Any person whose judgment and sentence became final prior to January 1, 1985, shall have until January 1, 1987, to file a motion in accordance with this rule.”); Fla. R.App. P. 9.141(c)(4)(B), (C).

The State notes that Mr. Bixler has filed numerous other challenges to his judgment and sentence in this case both in this court and in other courts. The State urges us to issue an order asking Mr. Bixler to show cause why we should not sanction him by prohibiting him from filing future pro se postconviction proceedings in this court regarding this judgment and sentence. At this time, we decline to do so. In this particular appeal, Mr. Bixler has expressed some perhaps understandable confusion based upon the more recent of his attempts to procure postconviction relief. Now that this confusion has been addressed, however, Mr. Bixler should be forewarned that future filings raising similar issues regarding this judgment and sentence may result in the State appropriately seeking sanctions in the circuit court or in this court.

Affirmed.

DAVIS, J., and DANAHY, PAUL W„ Senior Judge, Concur.

      . This court's cases include: Bixler v. State, 922 So.2d 199 (Fla. 2d DCA 2006) (table decision) (No. 2D05-2285) (affirming without opinion order denying postconviction motion for DNA testing); Bixler v. State, 907 So.2d 522 (Fla. 2d DCA 2005) (table decision) (No. 2D05-2877) (denying without opinion petition for writ of mandamus); Bixler v. State, 884 So.2d 29 (Fla. 2d DCA 2004) (table decision) (No. 2D04-392) (affirming without opinion Polk County order denying petition for writ of habeas corpus); Bixler v. State, 875 So.2d 600 (Fla. 2d DCA 2004) (table decision) (No. 2D03-5104) (denying without opinion petition for writ of mandamus); Bixler v. State, 761 So.2d 1103 (Fla. 2d DCA 2000) (table decision) (No. 2D00-1427) (denying without opinion petition for habeas corpus); Bixler v. State, 758 So.2d 675 (Fla. 2d DCA 2000) (table decision) (No. 2D99-4059) (affirming without opinion summary denial of motion for postconviction relief); Bixler v. State, 731 So.2d 658 (Fla. 2d DCA 1999) (table decision) (No. 98-4843) (denying without opinion petition for habeas corpus); Bixler v. Singletary, 606 So.2d 1172 (Fla. 2d DCA 1992) (table decision) (No. 92-3060) (denying without opinion petition for habeas corpus); Bixler v. State, 513 So.2d 143 (Fla. 2d DCA 1987) (table decision) (No. 87-2381) (affirming without opinion order denying motion for postconviction relief); Bixler v. State, 392 So.2d 1382 (Fla. 2d DCA 1980) (table decision) (No. 80-842) (affirming without opinion direct appeal of judgment and sentence).


author: SCHWARTZ, Senior Judge.

text:
    Melvin Lamar HUSSEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2650.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.

      ' Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Hussey appeals from convictions and sentences for battery on a law enforcement officer and resisting the officer without violence as a lesser included offense of resisting with violence, in an incident during a purported Terry stop. We reverse.

That the defendant was “crouching” next to a wall on a public street near closed businesses — where he was clearly seen in broad daylight at 7:40 p.m. on a June afternoon — and that he then walked away from the officer’s first attempt to accost him, fell far short of giving the officer the founded suspicion of unlawful activity necessary to justify a Terry stop. See S.P. v. State, 833 So.2d 267, 268 (Fla. 3d DCA 2002); Lee v. State, 868 So.2d 577, 582-83 (Fla. 4th DCA 2004); D.G. v. State, 831 So.2d 256, 257 (Fla. 3d DCA 2002); Chamson v. State, 529 So.2d 1160 (Fla. 3d DCA 1988), review denied, 539 So.2d 476 (Fla.1988); see also Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (acknowledging that absent reasonable suspicion or probable cause an “individual has a right to ignore the police and go about his business [and that] any ‘refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure’ ” (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citation omitted))); D.G., 831 So.2d at 257 (same); Slydell v. State, 792 So.2d 667 (Fla. 4th DCA 2001) (same). Compare the state’s “main case” of Mitchell v. State, 955 So.2d 640, 641-42 (Fla. 4th DCA 2007) (holding that there was reasonable suspicion that the defendant was loitering and prowling based on the officer’s observation of the defendant “in a high crime area, at night, lurking in the shadows of a wooded lot bordered by two homes” and the defendant’s acts of fleeing from the uniformed officer and attempting to conceal an object on his person).

Since this is true, the officer was, as a matter of law, not engaged in the lawful “performance” or “execution” of a legal duty as required under sections 784.07(2)(b) and 843.02, Florida Statutes (2002), respectively, to sustain the convictions below. See Tillman v. State, 934 So.2d 1263, 1266, 1273 (Fla.2006) (requirement that “in order to convict a defendant ... of battery on a law enforcement officer and resisting an officer with violence, the State must prove that the officer was ‘engaged in the lawful performance of his or her duties’ or ‘in the lawful execution of any legal duty’ ” not satisfied if Terry stop not supported by reasonable suspicion).

Accordingly, the convictions under review are reversed with directions to discharge the defendant.

Reversed and remanded.

      . The officer testified as follows on direct examination:
      [PROSECUTOR:] At some point after you concluded that [unrelated] investigation, did something grab your attention?
      [OFFICER:] Yes.
      Q. What was it?
      A. As I turned, I saw the defendant who was crouching down behind a wall, and as soon as I saw [sic] his direction, he quickly stood up and started to walk pretty quickly on the sidewalk in a westbound direction.

      Q. What did you do once he popped out of that crouched position?
      A. Well, that was kind of unusual for me, unusual behavior, so I jumped into my car and drove towards him.

      Q. When you proceeded to get into your car, what were you going to do next?
      A. I was going to approach him and basically ask him what he was doing.
      Q. For what purpose?
      A. Basically, like, that was part of the EEI. I mean, it was kind of odd for me to see somebody just quickly jump out of a bushy area behind a wall, and as I was driving towards him, he started to walk pretty fast, expeditiously.
      On cross-examination, the officer testified as follows:
      [DEFENSE COUNSEL:] And after writing up that report and finishing that investigation, you then happened to notice Mr. Hussey kneeling near a wall; is that right?
      [OFFICER:] Yes.
      Q. And you said you saw him stand up?
      A. Yes.
      Q. And you thought that behavior, standing up, was suspicious?
      A. How — the way he — when I turned—
      Q. I think the question was — on direct, you said that him standing up caught your attention and was suspicious; isn't that what you testified to?
      A. I said when he was crouching down and he quickly stood up and started to walk pretty fast.

      . Based on the officer's testimony that he recovered a pistol concealed in the defendant’s waistband, Hussey was also charged with several firearm offenses. After viewing a video tape of the incident taken from a nearby business, however, he was found not guilty of those crimes, and the trial court, sitting without a jury, also acquitted Hussey of possession of a firearm by a convicted felon.


author: GERSTEN, C.J.

text:
    William DANTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2731.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.

      Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and LAGOA, and SALTER, JJ.
   GERSTEN, C.J.

William Dante (“Dante”) appeals his conviction and sentence for possession of cannabis and cocaine, alleging the trial court erred in denying his motion to suppress physical evidence. Finding no error in the trial court’s determination that Dante voluntarily consented to the officers entering his residence, we affirm.

Two police officers, looking for Dante, knocked at his door at about 6:45 p.m. Both plain-clothed officers wore brown rain jackets with “Metro Dade Police” inscribed on the front and back, and wore badges around their necks and visible holstered weapons.

When Dante answered the door, the officers introduced themselves and asked if he was William Dante. Dante replied that he was “Tony.” When the officers asked for photo identification, Dante stated that his Florida driver’s license was suspended. Dante also stated that he had a Connecticut driver’s license in his wallet located in his bedroom. As Dante went inside the house to retrieve the license, the officers asked permission to accompany him. Dante agreed.

In the bedroom, Dante moved clothing on the bed while searching for the license. Dante’s license search revealed a small packet of marijuana and a plastic bag containing a white powder. The officers took Dante into custody and placed him in the back of the police car. Outside the car, the officers discussed obtaining a warrant to search the residence. Overhearing the conversation, Dante indicated he could save them time and volunteered that the only things left were in the bathroom under the sink.

Dante moved to suppress the physical evidence arguing that his person was unconstitutionally seized prior to entering the bedroom, because his consent for the officers to enter the house was not freely given. Instead, he contends the consent was only given under duress. Dante argues that no reasonable person faced with two armed police officers at his or her home after dark would believe that they were free to refuse the officers’ demands. We disagree with Dante.

As the record reveals, the encounter took place in the early evening with two police officers in plain clothes, with proper identification, and holstered weapons. The officers testified they were cordial and not abrasive. Dante agreed to a single request to follow him as he looked for his identification.

In determining whether an encounter is consensual, the court looks to the totality of the circumstances to decide if the police conduct would make a reasonable person believe that he or she was free to terminate the encounter. Taylor v. State, 855 So.2d 1 (Fla.2003); Voorhees v. State, 699 So.2d 602 (Fla.1997). Additionally, “[w]hile it is certainly true that most citizens would ordinarily respond to a police request, the fact that they do so without first being told that they are free to decline the request does not vitiate the consensual nature of their response.” State v. Poole, 730 So.2d 340, 342 (Fla. 3d DCA 1999).

After considering the totality of the circumstances, we find that the record supports the trial court’s determination. Accordingly, when Dante voluntarily allowed the police officers into his residence, he left legal limbo to enter Dante’s inferno. Because the trial court properly denied the motion to suppress, we affirm Dante’s conviction and sentence.

Affirmed.

LAGOA and SALTER, JJ., concur in result only.


author: SUAREZ, J.

text:
    Zenaide PORTO, Appellant, v. CARLYLE PLAZA, INC., Appellee.
    No. 3D06-1633.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.

      Billbrough & Marks and G. Bart Billb-rough, Coral Gables, for appellant.
    Isriel, Ponzoli, Keller & Simpson and John P. Keller, Miami, for appellee.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   SUAREZ, J.

Zenaide Porto (“Porto”) appeals an adverse final summary judgment in favor of the Carlyle Plaza (“Carlyle”) condominium on Miami Beach for injuries she sustained in a fall on the condominium’s property. We affirm based upon our conclusion that Porto was an uninvited licensee when injured on Carlyle’s property and Carlyle did not breach any duty of care owed to her.

On April 7, 2004, Porto was walking her dog on a leash on the public sidewalk. Porto left the sidewalk and went onto a grassy area on the side of Carlyle’s driveway for the dog to “relieve itself.” She walked on the grass, across the driveway and was walking back to the sidewalk when she tripped and fell over a piece of metal, adjacent to the public sidewalk and protruding from Carlyle’s driveway. The piece of metal was part of a gate that had been removed from that location when another one was installed closer to the building by Carlyle several years prior to this incident. Porto sustained injuries and sued Carlyle for negligence. The trial court granted final summary judgment in favor of Carlyle finding that Carlyle did not breach any duty of care owed to Porto.

The duty of care owed by a landowner depends on the status of the entrant on the property. Lukancich v. City of Tampa, 583 So.2d 1070 (Fla. 2d DCA 1991). We find that, as a matter of law, based on these facts, Porto was an uninvited licensee upon the Carlyle property. It is undisputed she was taking her dog for a walk on the public sidewalk, traversed over Carlyle’s property for her own purposes and, while returning to the sidewalk, tripped and fell over the metal on Carlyle’s property adjacent to the sidewalk. Her presence on the property was solely for her own convenience without invitation expressed or implied by Carlyle. She, therefore, meets the definition of an uninvited licensee. Wood v. Camp, 284 So.2d 691 (Fla.1973) (defining an uninvited licensee as one who chooses to come upon the premises solely for his own convenience without either an expressed or implied invitation). The duty of care owed by a landowner to an uninvited licensee is to refrain from willful misconduct or wanton negligence, to warn of known dangers not open to ordinary observation, and to refrain from intentionally exposing the uninvited licensee to danger. See Lane v. Estate of Morton, 687 So.2d 53 (Fla. 3d DCA 1997); see also Barrio v. City of Miami Beach, 698 So.2d 1241 (Fla. 3d DCA 1997) (holding where material facts are not in dispute it is appropriate to determine legal status of visitor on property as a matter of law). See generally Restatement (Second) of Torts § 368, comment g.

We find that Carlyle did not breach any duty of care owed to Porto. Carlyle’s conduct was neither willful, wantonly negligent, nor intentional in light of the unreasonable probability that a pedestrian such as Ms. Porto would cut across the grass and the private driveway of Carlyle, which was next to the public sidewalk, for her own unrelated-travel purpose of allowing her dog to use the Carlyle premises to “relieve itself’ during the walk. See Schroeder v. Grables Bakery, Inc., 149 So.2d 564 (Fla. 3d DCA 1963) (affirming defendant’s summary judgment where licensee left sidewalk and tripped over scale two inches off of sidewalk on defendant’s property).

For these reasons, we affirm the trial court’s order granting final summary judgment in favor of Carlyle.

Affirmed.


author: ROTHENBERG, Judge.

text:
    L.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1494.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

L.J., a juvenile, appeals from the trial court’s order withholding adjudication of delinquency and placing him on probation for the offense of providing a false name to a law enforcement officer, in violation of section 901.36(1), Florida Statutes (2006). We affirm.

At the adjudicatory hearing, the testimony, in the light most favorable to the State, was as follows. The arresting officer and another officer were on truancy patrol when they encountered L.J., who they believed was a truant. In response to the arresting officer’s request for identification, L.J. gave the officer a false name and date of birth, and stated that he had graduated from Central High. Based on the information provided, the officers called Central High and obtained several names that could have possibly matched the information given by L.J. Thereafter, the arresting officer logged on to the “David System,” which allows police officers to view Florida driver’s license photographs. The photograph that was retrieved, based on the information provided by L.J., did not match L.J.’s appearance. Thereafter, the arresting officer asked L.J. for his name, and L.J. continued to provide the false name. Believing that L.J. was lying, the officers took L.J. into custody. While L.J. was being transported to the police station, he gave the officer his real name and date of birth. The officer entered this information into the David System, which showed that L.J. was a runaway. The entire encounter lasted approximately twenty to thirty minutes, with fifteen to twenty minutes expended at the side of the road attempting to obtain correct information from L.J., and five to ten minutes spent transporting L.J. to the police station.

After the State rested, L.J. moved for a judgment of acquittal, which was denied. The trial court found L.J. guilty as charged, withheld adjudication, and placed L.J. on probation.

On appeal, L.J. argues that the trial court erred by denying his motion for judgment of acquittal because he recanted his false name before any “real harm” was done. We disagree.

A trial court’s denial of a motion for judgment of dismissal is reviewed by appellate courts de novo. See A.A.R. v. State, 926 So.2d 463, 465 (Fla. 4th DCA 2006) (“The standard of review applicable to a motion for judgment of dismissal in a juvenile case is the same as the standard for a motion for judgment of acquittal in a criminal case, de novo review.”); A.P.R., 894 So.2d at 285 (“The denial of a motion for judgment of dismissal is reviewed by this court de novo.”).

In support of his argument, L.J. relies on A.A.R., 926 So.2d at 463. In A.A.R., A.A.R. gave a false name to a police officer while being legally detained for suspected underage smoking. A.A.R. recanted before he was arrested, transported, or booked, but it took A.A.R. ten to fifteen minutes to give the officer his correct name. A.A.R. was adjudicated delinquent for giving a false name to- a law enforcement officer, in violation of section 903.36(1), Florida Statutes (2004).

On appeal, A.A.R. argued that the trial court erred by denying his motion for judgment of dismissal based on the common law recantation defense. The Fourth District explained that prior to the adoption of section 901.36(1) in 1999, a person who gave a false name to a police officer was charged with either obstructing justice or resisting an officer without violence, under section 843.02, Florida Statutes, and that cases interpreting section 843.02 have “recognized a recantation defense where the defendant acted with sufficient promptness in correcting the false name.” A.A.R., 926 So.2d at 465. The Fourth District recognized that the public policy behind the recantation defense in obstruction of justice and perjury prosecutions is to encourage the person making the false statement to tell the truth, and “the correlative need to induce [the person making the false statement] to correct, without fear of prosecution, their prior falsehoods before they have done any harm.” Id. at 466 (quoting P.P. v. State, 466 So.2d 1140, 1141 (Fla. 3d DCA 1985)). Moreover, “[t]he extent of the delay correlates to the amount of harm done, if any.” A.A.R., 926 So.2d at 466. The Fourth District found that the recantation defense for an obstruction of justice charge “applies equally to the current ‘false name’ statute.” Id. In addition, the Fourth District found that the trial court erred by denying A.A.R.’s motion for judgment of dismissal where “no serious harm was done” based on the fact that he “recanted and provided his true name to the officers before he was arrested, transported, or booked” and “the officers did not prepare any reports based on the false name or take any action in reliance on it.” Id. at 464—66.

We agree with L.J.’s argument that the common law recantation defense is available in a prosecution under section 936.01. However, we find that L.J.’s reliance on A.A.R. is misplaced as the facts are distinguishable. Unlike the juvenile in A.A.R., L.J. was in custody and in the process of being transported to the police station when he decided to recant the false information. Thus, when L.J. recanted, serious harm had already occurred.

Not only is A.A.R. distinguishable, and therefore, inapplicable, but the facts presented in this case are similar to the factual scenario in Fripp v. State, 766 So.2d 252 (Fla. 4th DCA 2000), and State v. Townsend, 585 So.2d 495 (Fla. 5th DCA 1991), in which the appellate courts found that once the defendants were arrested, the policy reasons behind excusing the providing of false information were no longer applicable. Fripp, 766 So.2d at 254 (holding that policy reason for excusing false testimony is no longer available after an arrest has occurred); Townsend, 585 So.2d at 496 (holding that the “policy reason for excusing false testimony in order to induce witnesses to change their statement and tell the truth ... is no longer applicable after an arrest has occurred”). Accordingly, we affirm the order under review as the trial court correctly denied L.J.’s motion for judgment of acquittal.

Affirmed.

      . Section 901.36(1), Florida Statutes (2006), provides in part as follows:
      It is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in any way, to the law enforcement officer or any county jail personnel.

      . L.J. was reported as a runaway because he reported late to his Job Corps dormitory. Job Corps, however, failed to remove the missing person report from the system.

      . "[T]he Florida Rules of Juvenile Procedure do not provide for a motion for judgment of acquittal, [however] rule 8.110(k) does permit a juvenile to move for a judgment of dismissal at the close of the state’s case in chief if the evidence is not sufficient to establish a prima facie case of guilt.” A.P.R. v. State, 894 So.2d 282, 285 n. 2 (Fla. 5th DCA 2005); see also J.P. v. State, 855 So.2d 1262, 1264 n. 1 (Fla. 4th DCA 2003) ("Though referred to as a judgment of acquittal, under the Rules of Juvenile Procedure, the proper title of the motion should have been a Motion for Judgment of Dismissal. Notwithstanding, this court uses the same standard on review as for a judgment of acquittal.”) (citation omitted).


author: SALTER, J.

text:
    Niger R. SANCHEZ, Appellant, v. Irene A. HERNANDEZ, et al., Appellees.
    No. 3D07-244.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.

      Phillip J. Goldstein, Miami, for appellant.
    Bernstein, Chackman & Liss and Jonathan Liss and Neil Rose, Hollywood, for appellees.
    Before COPE, GREEN, and SALTER, JJ.
   SALTER, J.

Niger R. Sanchez appeals a jury verdict, final judgment, and order denying his motion for new trial in a personal injury case. We affirm on all issues submitted to the jury except the determination of Sanchez’s past and future non-economic damages. Based on the testimony of the medical experts for both sides, their determinations of permanent impairment, and the substantial amounts awarded by the jury for past medical expenses, future medical expenses, lost wages, and loss of future income, we find that the $701.21 awarded Sanchez for past and future non-economic damages is clearly inadequate and contrary to the manifest weight of the evidence. We therefore reverse and remand the judgment and order below for a new trial limited to non-economic damages.

We review the trial court’s denial of Sanchez’s motion for new trial for an abuse of discretion. Brown v. Estate of A.P. Stuckey, 749 So.2d 490 (Fla.1999). If reasonable persons could differ as to the denial of the motion, we must affirm. Id. at 498.

In this case, the trial court directed a verdict in favor of Sanchez on causation of the accident. Sanchez was crossing a perimeter road around a shopping mall, and Mrs. Hernandez was driving the ear that struck him. At trial, Sanchez’s treating physician, Dr. Herrera, testified regarding the surgeries performed to repair Sanchez’s left knee, the reconstruction of his anterior cruciate ligament (ACL), his medical bills of $55,402, his rehabilitative therapy, and his fifteen percent permanent disability in his left knee (with a five percent permanent disability of the right knee as well). Importantly, the independent medical evaluation conducted at the request of the defendants — and offered by the defense via videotaped testimony at trial — confirmed Sanchez’s complaints of recurring pain in the knee and evaluated the permanent disability in the left knee at twenty percent.

During closing argument, counsel for Sanchez suggested to the jury that $55,000 would be a fair award for Sanchez’s past non-economic damages. Defense counsel suggested that $5000 to $10000 “may be much more appropriate.” The jury awarded all of Sanchez’s past medical expenses, $55,402.43, future medical expenses of $16000, past lost wages of $5000, and future lost income of $2500, all of which are reasonable in light of the trial record.

As past non-economic damages, however, the jury awarded Sanchez $702.21, and it awarded the same amount for future non-economic damages. Those amounts have no discernible origin in the record and are grossly inadequate.

Unlike the disparity between past and future components of damages considered in Allstate Ins. Co. v. Manasse, 707 So.2d 1110 (Fla.1998), and other cases cited by the defendants, the jury’s awards to Sanchez for non-economic damages simply have no explanation in the record. Taking into account the lack of controversy in this case over causation, pain associated with the ACL surgery and continuing after maximum medical improvement, Sanchez’s permanent disability, and the other elements of the damages verdict, we decline to order a new trial on liability and damages. See Newalk v. Fla. Supermarkets, Inc., 610 So.2d 528, 530 (Fla. 3d DCA 1992). Instead, we reverse and remand solely for a new trial on past and future non-economic damages. See Garrett v. Miami Transfer Co., 964 So.2d 286 (Fla. 4th DCA 2007).

Sanchez’s remaining points on appeal (regarding evidence excluded but not proffered for review here, certain rulings on hearsay objections, and objections to statements in closing argument) are not well taken and would in any event be harmless in consideration of the entire trial record.

Affirmed in part, reversed in part, and remanded.


text:
    The STATE of Florida, Appellant, v. Clarence WATSON, Appellee.
    No. 3D07-198.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.

      Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellant.
    Kenneth P. Speiller, for appellee.
    Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Upon Watson’s guilty plea to violation of probation and violation of sexual offender registration requirements, he was sentenced below the state prison minimum guidelines sentence to two years of community control as a habitual offender on the registration charge, and a concurrent sentence of two years of community control for the probation violation. The state appeals because the sole basis for the departure was a state offer which had been revoked. We vacate the sentence.

It is first clear that the state’s previous offer of a below minimum sentence — which, without more, would have authorized such a departure by the court— was in fact unequivocally revoked, as made in self-confessed error, prior to its acceptance. Compare State v. Nunez, 855 So.2d 698, 699 (Fla. 3d DCA 2003) (although it was “unclear whether the State’s initial downward departure offer remained viable ..., the offer to forgo an appeal of a downward departure sentence was resurrected by the State”). Applying ordinary contract principles, see State v. Frazier, 697 So.2d 944 (Fla. 3d DCA 1997), which provide that one cannot accept a revoked offer, see 1 Arthur L. Corbin, Corbin on Contracts § 2.8, at 215 (Joseph M. Perillo ed., rev. ed. 1993) (“By exercising this power to revoke — by an effective revocation, the offeree’s power of acceptance is terminated.”); 1 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 5:2, at 899 (4th ed.2007) (same), it has consistently been held that a trial court cannot justify a deviation from the guidelines based solely on an offer which is in essence no longer in existence. See State v. Fernandez, 927 So.2d 939, 941 (Fla. 3d DCA 2006) (trial court may not impose downward departure sentence based on state’s revoked offer); State v. Parisi, 660 So.2d 372 (Fla. 4th DCA 1995) (same); see also State v. Reasbeck, 359 So.2d 564 (Fla. 4th DCA 1978). We do so again here.

Consequently, the sentence under review is reversed and the cause remanded to enter a guidelines sentence or to permit appellee to withdraw his plea. See State v. Roberts, 963 So.2d 747 (Fla. 3d DCA 2007); State v. Ahua, 947 So.2d 637 (Fla. 3d DCA 2007); State v. Green, 932 So.2d 365 (Fla. 3d DCA 2006); State v. Brownell, 922 So.2d 244 (Fla. 3d DCA 2006).

Reversed and remanded.

      .
      [PROSECUTOR]: I'm sorry, I didn’t mean to interrupt [defense counsel] but I feel I need to. I was under the impression defendant was not a career criminal when I was making the assessment and making that offer. I am now seeing the file, I have to apologize. I did not know that.
      I have to revoke that offer. We can’t go below what is a career criminal offer initially. I was trying to help out but I didn’t realize.
      [THE COURT]: So what is the offer?
      [PROSECUTOR]: Twenty-four months state prison.

      [PROSECUTOR]: The only thing I can say, Judge, that I am falling on the sword, it was my mistake. I have revoked the offer, so there is no below the guidelines on the offer. If you were to make one at this time we would take it up on appeal. Now, I have to tell you that I need to look into some things [defense counsel] has been saying. It is not that I don’t believe her, but obviously there are some things that we might need to look into in order to take the case back to career criminal and get a better plea offer, but at this point in time it is premature.


author: WELLS, Judge.

text:
    Maria SUAREZ and Rolando Suarez, Appellants, v. The CITY OF HIALEAH, Appellee.
    No. 3D07-163.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.
    Leonard A. Canton, for appellants.
    William Grodnick, City Attorney, and Robert Lloyd-Still, Assistant City Attorney; Akerman, Senterfítt and Michael Fertig and Jennifer Cohen Glasser, Miami, for appellee.
    Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

In this personal injury action, Maria and Rolando Suarez appeal an order granting final summary judgment in favor of the City of Hialeah on their claim that the City negligently maintained a sidewalk on which a slip and fall accident occurred. Because the City failed to demonstrate the lack of material issues of fact that would support entry of summary final judgment in its favor, we reverse. See Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (“The law is well settled in Florida that 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.”); Castillo v. State Farm Fla. Ins. Co., 971 So.2d 820, 2007 WL 3005974 (Fla. 3d DCA Oct.17, 2007) (“The burden is upon the party moving for summary judgment to demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”).

Reversed and remanded for further proceedings.


text:
    KONICA MINOLTA BUSINESS SOLUTIONS and Broadspire, Appellants, v. Oscar POVEDA, Primesource Building, Inc., and Augustin Villavicencio, Appellees.
    No. 3D07-550.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.
    Marlow, Connell, Valerius, Abrams, Adler, Newman & Lewis and Rosemary Wilder, Coral Gables, for appellants.
    Colson Hicks Eidson Colson Cooper Matthews Martinez Gonzalez Kalbac & Kane and Deborah J. Gander, Coral Gables, for appellees.
    Before COPE, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

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


text:
    Felio CRUZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2210.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.
    Felio Cruz, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). In his motion, Cruz alleges that he was sentenced to fifty years in prison for committing a second-degree felony, unarmed robbery, when the correct sentence should have been fifteen years in prison. The trial court summarily denied Cruz’s motion, stating that he was convicted of a first-degree felony, robbery using a deadly weapon or firearm, in violation of section 812.13(2)(a), Florida Statutes, and thus was properly sentenced to fifty years in prison. The trial court did not attach the judgment or the sentence to the order summarily denying Cruz’s motion.

Cruz has raised a facially sufficient claim for Rule 3.800(a) relief that the trial court, by summarily denying the motion, has failed to conclusively refute. On remand, if the trial court again enters an order denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting the defendant’s claim. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded for further proceedings.


text:
    Gervase JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2832.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.
    Gervase Johnson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). “Rule 3.800(a) is an improper vehicle to challenge the validity of a departure sentence.” Concepcion v. State, 944 So.2d 1069, 1071 (Fla. 3d DCA 2006) (citations omitted); Isom v. State, 915 So.2d 183, 184 (Fla. 3d DCA 2005).

Affirmed.


text:
    James MORENCY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2013.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2007.

      James Morency, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Morency v. State, 955 So.2d 67, 68 n. 1 (Fla. 3d DCA 2007).


author: ORFINGER, J.

text:
    Gregory D. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-10.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Gregory D. Miller appeals an order denying his motion to dismiss an information charging him with one count of failure of sexual offender to report in person at a driver’s license office in violation of section 943.0435(9) and (3), Florida Statutes (2006). On appeal, Mr. Miller argues that the statute violates his right to equal protection by requiring him to register with the Florida Sex Offender Registry as a result of an offense he committed in West Virginia in 1994, while exempting similarly-situated Florida sex offenders from the registration requirement. For the reasons that follow, we affirm.

In 1994, Mr. Miller was convicted of a sex crime in West Virginia and designated a sex offender. He was sentenced to prison and released in 1996. Mr. Miller was required to register as a sex offender in West Virginia. Following a move to Florida, Mr. Miller was advised by law enforcement of his registration obligation. After several months passed and Mr. Miller failed to register, he was charged with failing to report as a sex offender at a driver’s license office, in violation of sections 943.0435(9) and (3), Florida Statutes. Mr. Miller moved to dismiss the information on the ground that section 943.0435 was unconstitutional as applied to him, alleging that the statute treated similarly-situated sex offenders differently. After the denial of his motion to dismiss, Mr. Miller pled no contest to the charge, reserving the right to appeal the denial of his dispositive motion to dismiss. This appeal followed.

A motion to dismiss an information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is analogous to a motion for summary judgment in a civil case. State v. Bonebright, 742 So.2d 290, 291 (Fla. 1st DCA 1998); Allen v. State, 463 So.2d 351 (Fla. 1st DCA 1985). Both should be granted sparingly. State v. Fuller, 463 So.2d 1252 (Fla. 5th DCA 1985). The trial court should not decide factual issues, determine the weight to be given to conflicting evidence or assess the credibility of witnesses. State v. Feagle, 600 So.2d 1236, 1239 (Fla. 1st DCA 1992).

In this appeal, Mr. Miller seeks our review of his constitutional challenge to section 943.0435(1), Florida Statutes. We review the constitutionality of this statute de novo, as it presents a pure question of law. Dep’t of Ins. v. Keys Title & Abstract Co., 741 So.2d 599, 601 (Fla. 1st DCA 1999). Further, because there is a strong presumption that statutes are constitutionally valid, see City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002), we are obligated to interpret the statute in a manner so as to uphold its constitutionality if it is reasonably possible to do so. Capital City Country Club, Inc. v. Tucker, 613 So.2d 448, 452 (Fla.1993).

The equal protection clause of the United States Constitution provides that “[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1; see also Art. I, § 2, Fla. Const, (stating that “[a]ll natural persons are equal before the law ... ”). Mr. Miller concedes that we analyze the constitutionality of section 943.0435 using the rational relationship test because it does not impair a fundamental right or affect a suspect class of persons. Turner v. State, 937 So.2d 1184, 1185 (Fla. 5th DCA 2006) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Doe v. Moore, 410 F.3d 1337 (11th Cir.2005)). Under this test, a court will uphold a statute if the classification bears a rational relationship to a legitimate governmental objective. See Zapo v. Gilreath, 779 So.2d 651, 655 (Fla. 5th DCA 2001); Keys Title, 741 So.2d at 602; see also Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988). “It would be proper to sustain an equal protection challenge to a statute only if ‘the Legislature could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made.’” Keys Title, 741 So.2d at 602 (quoting N. Ridge Gen. Hosp., Inc. v. City of Oakland Park, 374 So.2d 461, 465 (Fla.1979)). However, a statutory classification will be found to violate equal protection if it treats similarly-situated people in a different manner based upon an illogical and arbitrary basis. See McElrath v. Burley, 707 So.2d 836, 839 (Fla. 1st DCA 1998). Hence, in arguing that section 943.0435(1)(a), Florida Statutes, as applied, is discriminatory, Mr. Miller must show (1) that he was treated differently under the law from similarly-situated persons, (2) that the statute intentionally discriminates against him, and (3) that there was no rational basis for the discrimination. See id.

We believe Mr. Miller misreads the statute. The statute does not treat him differently from similarly-situated persons. In 1997, Florida enacted section 943.0435, its sexual offender registration statute. Ch. 97-299, § 8, Laws of Fla., eff. Oct. 1, 1997. Prior to the enactment of that statute, Florida had no sex offender registration requirement. Section 943.0435(l)(a) defines a “sexual offender” as a person convicted of committing specified sexual offenses in Florida or similar offenses in another jurisdiction. Additionally, those offenders who meet the criteria set forth in subparagraphs 1, 2, or 3 of the statute also fall within its scope. In pertinent part, the applicable version of the statute requires:

943.0435. Sexual offenders required to register with the department; penalty
(1) As used in this section, the term:
(a) “Sexual offender ” means a person who meets the criteria in subparagraph 1., subparagraph 2., or subparagraph 3., as follows:
1. a. Has been convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: s. 787.01, s. 787.02, or s. 787.025(2)(c), where the victim is a minor and the defendant is not the victim’s parent; chapter 794, excluding ss. 794.011(10) and 794.0235; s. 796.03; s. 796.035; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135; s. 847.0137; s. 847.0138; s. 847.0145; or s. 985.701(1); or any similar offense committed in this state which has been re-designated from a former statute number to one of those listed in this sub-subparagraph; and
b. Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense described in sub-subparagraph a. For purposes of sub-subparagraph a., a sanction imposed in this state or in any other jurisdiction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration, in a state prison, federal prison, private correctional facility, or local detention facility;
2. Establishes or maintains a residence in this state and who has not been designated as a sexual predator by a court of this state but who has been designated as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction and was, as a result of such designation, subjected to registration or community or public notification, or both, or would be if the person were a resident of that state or jurisdiction, without regard to whether the person otherwise meets the criteria for registration as a sexual offender

§ 943.0435(l)(a)l.-2., Fla. Stat. (2006) (footnote omitted; emphasis added).

Contrary to Mr. Miller’s argument, section 943.0435(l)(a)l. and 2. does not treat in-state and out-of-state sexual offenders differently. Under subparagraph 1, any person is treated as a sexual offender in Florida if he or she (1) has been convicted of committing specified sexual offenses in Florida or in another jurisdiction and (2) was released from the sanction imposed for the conviction on or after October 1, 1997. § 943.0435(l)(a)l.a.-b„ Fla. Stat. (2006); see McCoy v. State, 935 So.2d 1278, 1279 (Fla. 4th DCA 2006) (stating that this section applies to offenders released from sanction for a qualifying offense on or after October 1, 1997). Thus, contrary to Mr. Miller’s position, both Florida sex offenders and non-Florida sex offenders who committed specified sexual offenses and were released before October 1, 1997, are exempt under this section of the statute.

The statute also provides an alternative provision by which an individual could be defined as a sexual offender. Under sub-paragraph 2, a person who has been designated a sexual offender by another state must register in this state if that person establishes or maintains a residence in the state of Florida regardless of the date of conviction or release. § 943.0435(l)(a)2., Fla. Stat. (2006). Once again, under this subparagraph, similarly-situated offenders are treated similarly under the law, ¿a, regardless of date of conviction or release, offenders who move to Florida, as well as offenders who have been living in Florida must register in Florida if they were required to register in another state. As Mr. Miller was required to register in West Virginia, he was subject to this sub-paragraph of the statute when he remained in Florida for more than five days. See § 943.0435(l)(e), Fla. Stat. (2006) (stating that “ ‘[permanent residence’ and ‘temporary residence’ have the same meaning ascribed in s. 775.21”); § 775.21(2)(f) & (g), Fla. Stat. (2006) (defining “[pjermanent residence” under the sexual predator act as “a place where the person abides, lodges, or resides for 5 or more consecutive days” and “[tjemporary residence” as “a place where the person abides, lodges, or resides for a period of 5 or more days in the aggregate during any calendar year and which is not the person’s permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state”); see also McCoy, 935 So.2d at 1279-80 (holding that because defendant was released from incarceration for a qualifying sexual offense on January 3, 1997, he was required to register under 943.0435(l)(a)3., Florida Statutes (2002) (now section 943.0435(l)(a)2.), because if he lived in Colorado, he would be required to register as a sex offender). Mr. Miller was treated the same as other similarly-situated sex offenders, moving into Florida or already living in Florida, who are required to register in other states. Thus, he has not shown that section 943.0435 treats him differently from any other similarly-situated sexual offender, or that it intentionally discriminates against him.

Lastly, as this Court recognized in Turner, the Legislature has a rational basis to include in its definition of “sexual offender,” Florida residents who have been designated sexual offenders by another state. 937 So.2d at 1185. Accord, Moore, 410 F.3d 1337 (holding that Florida’s various classifications and sub-classifications under section 943.0435, Florida Statutes, were rationally related to a legitimate governmental purpose; budgetary concerns are a legitimate governmental interest); State v. Subido, 925 So.2d 1052, 1060 (Fla. 5th DCA 2006) (citing Moore in support of conclusion that registration requirement of section 943.0435 is constitutional); Hanson v. State, 905 So.2d 1036 (Fla. 5th DCA 2005) (adopting and applying the federal court’s substantive due process analysis in Moore to the Sexual Predator Act, section 775.21).

For these reasons, we conclude that the challenged statute (1) applies to all similarly-situated persons; (2) does not intentionally discriminate against Mr. Miller alone; and (3) passes a rational basis scrutiny. Accordingly, we conclude that section 943.0435, Florida Statutes, does not offend equal protection.

AFFIRMED.

MONACO and TORPY, JJ., concur.

      . As Mr. Miller was not under any supervision related to his West Virginia conviction, sub-paragraph 3 does not apply. See § 943.0435(l)(a)3„ Fla. Stat. (2006).

      . For this reason, Mr. Miller’s reliance on Idaho v. Dickerson, 142 Idaho 514, 129 P.3d 1263 (2006) (holding that former version of state’s sex offender registration and notification act violated defendant's right to travel, and finding that state’s interest in apprehending re-offending sex offenders were not rationally advanced by classification that differentiated between offenders based solely on their date of entry into state), and ACLU of New Mexico v. City of Albuquerque, 139 N.M. 761, 137 P.3d 1215 (2006) (holding that registration requirements for out-of-state sexual offenders in city’s sex offender registration and notification act resulted in differing treatment for resident and non-resident sex offenders that was not rationally related to city’s interest in protecting citizens from sex offenders, and, therefore, violated equal protection clause; provisions did not require registratipn of those convicted sex offenders who were most likely to have means and opportunity to reoffend in city, yet, those offenders who were convicted outside the state, who resided out-of-state, and were in city only a limited number of days, had to register), is misplaced.