author: KAHN, J.

text:
    J.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3200.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2007.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley and Natalie D. Kirk, Assistant Attorneys General, Tallahassee, for Appellee.
   KAHN, J.

J.R., a juvenile, appeals his adjudication of delinquency, claiming first that the trial court improperly denied his motion for a continuance and, second, that the evidence at trial was insufficient to support the trial court’s findings of fact. We need not reach the first issue because we agree with appellant as to the second; accordingly, we reverse appellant’s adjudication of delinquency.

BACKGROUND

The State originally charged J.R., then fifteen, with aggravated assault with a deadly weapon pursuant to section 784.021(l)(a), Florida Statutes (2006), alleging he held a knife to his then-seventeen-year-old girlfriend’s throat during a late-night quarrel in April 2007. The State amended the delinquency petition shortly before trial to charge appellant with improperly exhibiting a dangerous weapon pursuant to section 790.10, Florida Statutes (2006). At trial, the State’s two eyewitnesses-appellant’s younger sister and the victim herself (the mother of appellant’s two-year-old daughter) — apparently receded from their earlier statements to law enforcement and testified that although appellant wielded a knife during the episode, they could not recall the knife’s appearance, characteristics, or dimensions. The victim also testified that appellant did not, as she first told police, hold the knife to her throat and that she was not afraid during the episode. This testimony led the State to drop the charge of aggravated, assault. Investigators apparently never found the knife.

After a bench trial (and an impromptu post-trial research session at the judge’s behest to uncover cases interpreting the term “dangerous weapon” in section 790.10), the trial court found appellant guilty of improper exhibition of a dangerous weapon and sentenced him to a moderate-risk residential program, with one year of probation to follow.

ANALYSIS

The State bore the burden at trial of presenting competent, substantial evidence that appellant violated section 790.10 by exhibiting a “dirk, sword, sword cane, firearm, electric weapon or device, or other weapon ... in the presence of one or more persons ... in a rude, careless, angry, or threatening manner.” § 790.10, Fla. Stat. (2006). “Weapon” means “any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.” § 790.001(13), Fla. Stat. (2006).

The state supreme court held in L.B. v. State that a pocketknife with a blade three and three-quarters of an inch long constitutes a “common pocketknife” under section 790.001(13), but the court also observed in a footnote that, in so ruling, it did not intend to suggest “that four inches is a bright line cutoff for determining whether a particular knife is a ‘common pocketknife.’” 700 So.2d 370, 373 n. 4 (Fla.1997). Instead, the court held “merely ... that appellant’s knife fits within the exception to the definition of weapon found in section 790.001(13).” Id.

Whether a weapon of ascertainable characteristics is, in a given case, a “dangerous weapon” for the purpose of the improper exhibition statute constitutes a factual question which should be scrupulously reserved for the factfinder. See, e.g., Walls v. State, 730 So.2d 294, 294-95 (Fla. 1st DCA 1999) (reserving for jury the question whether an open and locked pocketknife with a four-inch blade constituted a dangerous weapon in the post-L.N regime); Bell v. State, 673 So.2d 556, 557 (Fla. 1st DCA 1996) (holding that whether defendant’s knife was a “weapon” pursuant to section 790.001(13) was a “jury question ); Bass v. State, 232 So.2d 25, 27 (Fla. 1st DCA 1970) (holding that whether a weapon is “deadly” under the aggravated assault statute is a question for the fact-finder); State v. Nixon, 295 So.2d 121, 122 (Fla. 3d DCA 1974) (noting that “[i]t is common knowledge that in certain circles pocket knives are used by assailants with deadly weapon effect as frequently, if not more frequently than are firearms,” and holding that whether or not a pocketknife is a deadly weapon in a particular case is a question for the jury.)

In the present case, no evidence described appellant’s knife, other than testimony that it existed. The knife was never found, and neither of the State’s eyewitnesses remembered anything about the knife’s appearance, characteristics, or dimensions. Indeed, considered in a light most favorable to the State, the evidence fails to remove the knife from any of the statutory exceptions listed in the definition of “weapon” in section 790.001(13) except that of a firearm. No evidence suggests— nor may we infer — that the knife in this case was not, in fact, a “plastic knife” or “blunt-bladed table knife,” and no evidence provides a metric by which the trial court could have determined whether the knife was a “common pocketknife.” See § 790.001(13), Fla. Stat. (2006).

Furthermore, the victim testified that appellant did not hold the knife to her throat, a contradiction, to be sure, of both her earlier statements and appellant’s own statement to police upon his arrest. Appellant’s young sister, who witnessed the outdoor argument through a window from inside the home, testified that she could not see the knife during the argument— that “it was either on the neck or the arm.” In the absence of a description of the knife and evidence sufficiently describing the manner in which appellant wielded it, we conclude the State presented no evidence by which the trial judge could possibly have found the knife constituted a “dangerous weapon” which appellant exhibited “in a rude, careless, angry, or threatening manner.” See § 790.10, Fla. Stat. (2006).

For this reason, appellant was entitled to judgment of acquittal. We REVERSE the adjudication of appellant’s delinquency and order that he be discharged.

PADOVANO and HAWKES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dale Albert ZYGADLO, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, et al, Appellee.
    No. 1D07-1076.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2007.
    Dale Albert Zygadlo, pro se, Appellant.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Dale Albert Zygadlo appeals an order of the circuit court which dismissed his mandamus petition for failure to make a partial prepayment of circuit court fees as ordered by the court. Appellant argues that be had no funds available to him in the months preceding the filing of his circuit court case and that a medical co-payment lien was being processed by the Department of Corrections at the time of the circuit court filing. Having examined the record and considered the arguments presented, we reverse and remand for further proceedings. See Huffman v. Moore, 778 So.2d 411 (Fla. 1st DCA 2001); Harper v. Moore, 737 So.2d 1232 (Fla. 1st DCA 1999).

REVERSED and REMANDED.

ALLEN, VAN NORTWTCK, and ROBERTS, JJ., concur.


text:
    Tracy RHOADES, Appellant, v. Stacy RHOADES, Appellee.
    No. 5D06-3481.
    District Court of Appeal of Florida, Fifth District.
    Oct. 16, 2007.
    Steven J. Guardiano, Daytona Beach, for Appellant.
    R. Jason DeGroot, Deltona, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Fortune v. Pantin, 851 So.2d 274, 274 (Fla. 5th DCA 2003).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Columbus ASHLEY, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, and/or The Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Respondents.
    No. 1D07-4882.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2007.
    Columbus Ashley, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of habeas corpus or alternative petition for writ of mandamus is denied on the merits.

KAHN, PADOVANO, and HAWKES, JJ., concur.


text:
    Nathaniel J. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4714.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2007.
    Nathaniel J. Brown, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, PADOVANO, and HAWKES, JJ., concur.


text:
    Vanessa M. MONTALVO a/k/a Vanessa Eckardt, Appellant, v. ATTORNEYS’ TITLE INSURANCE FUND, a Florida corporation, Appellee.
    No. 3D07-944.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Infante, Zumpano, Hudson Miloch, LLC, and Theodore Miloch, II, and Michael C. Mikiciuk, for appellant.
    Cohen Fox, P.A., Miami, and Aaron C. Wong, for appellee.
    Before GERSTEN, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

The appellant seeks review of an order denying her motion to dissolve an injunction and/or lis pendens. On the undisputed record before us, we cannot conclude that the order constitutes an abuse of discretion. See Georgia Banking Co. v. GMC Lending Mortgage Servs. Corp., 923 So.2d 1224 (Fla. 3d DCA 2006); Vargas v. Vargas, 771 So.2d 594 (Fla. 3d DCA 2000); Castillo v. Vlaminck de Castillo, 701 So.2d 1198 (Fla. 3d DCA 1997); Chiusolo v. Kennedy, 614 So.2d 491 (Fla.1993). Accordingly, we affirm.

Affirmed.


author: SHEPHERD, J.

text:
    JAMES P. DRISCOLL, INC., et al., Appellants, v. Theodore B. GOULD, et al., Appellees.
    No. 3D06-1910.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.

      Tew Cardenas and Joseph A. DeMaria and Maria N. Vernace, Miami, for appellants.
    Podhurst Orseck and Stephen F. Rosen-thal and Robert C. Josefsberg; Sheftall & Torres, Miami, for appellees.
    Before GERSTEN, C.J., and GREEN and SHEPHERD, JJ.
   SHEPHERD, J.

In this appeal, James P. Driscoll challenges a final order on proceedings supplementary brought by appellees, Theodore Gould and Miami Center Corporation, as general partners of Miami Center Limited Partnership (MCLP), in which the trial court found Driscoll personally liable for a fraudulent mechanics’ lien judgment obtained more than twenty years ago against one of his now defunct companies, James P. Driscoll, Inc. (JPDI). Originally in excess of $1,800,000, the judgment — if now collectible against Driscoll — has swelled to more than $6,000,000. Driscoll argues that MCLP, which filed the action against JPDI in 1983, lacks standing to enforce the judgment against Driscoll because it was not listed on required schedules filed by MCLP a year later when it and four other debtors filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code. We disagree.

The fraudulent lien judgment arises out of JPDI’s work as the electrical subcontractor in the early 1980s on a prominent hotel and office development complex known as the Miami Center. During construction, the project became ensnarled in numerous disputes, not the least of which was a dispute between JPDI, the general contractor, and MCLP as owner, over payments alleged by JPDI to be owing on its subcontract. JPDI took steps to collect what it considered due, including filing a mechanics’ lien against the property. See James P. Driscoll, Inc., 521 So.2d at 302. MCLP countered with a claim for filing fraudulent liens, slander of title and breach of contract.

Although the fraudulent lien action was filed by MCLP in 1983 and therefore was in existence in 1984 when MCLP filed its Chapter 11 petition, MCLP did not disclose the suit as required on the mandatory schedules that accompanied the petition. See 11 U.S.C. § 521(1) (2006). Based principally upon this fact, Driscoll argues the undisclosed action, which con-cededly became part of the bankruptcy estate at the time of commencement of the proceeding, remained part of the bankruptcy estate when the Chapter 11 proceeding finally was closed in 1998. He contends the language of another section of the Bankruptcy Code, section 554(c), supports his conclusion. Section 554(c) provides: “Unless the court orders otherwise, any property scheduled under section 521(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor....” 11 U.S.C. § 554(c) (2006) (emphasis added). Because, says Driscoll, the JPDI litigation was not scheduled and no court order expressly abandoned it to MCLP, MCLP does not hold the judgment and therefore lacks standing to proceed. See § 554(c); Parker v. Wendy’s Int’l, Inc., 365 F.3d 1268, 1272 (11th Cir.2004) (“At the close of the bankruptcy case, property of the estate that is not abandoned under § 554 and that is not administered in the bankruptcy proceedings remains the property of the estate.”); Kolschefsky v. Harris, 72 P.3d 1144, 1147 (Wyo.2003) (“The automatic abandonment provision upon closing of a bankruptcy case pursuant to 11 U.S.C. § 554(c) is expressly limited to property that is properly scheduled.”); Vucak v. City of Portland, 194 Or.App. 564, 96 P.3d 362, 365 (2004) (“Debtors who fail, either through neglect or indifference, to recognize the requirements of section 521(1), ‘as a significant and integral part of filing a bankruptcy petition under Chapter 7, do so at their own peril.’ ”) (quoting In re Bayless, 78 B.R. 506, 509 (Bankr.S.D.Ohio 1987)).

Although we do not take issue with these authorities and agree they might indeed control in the context of a Chapter 7 proceeding, there is an independent avenue under which property may revest in a debtor at the conclusion of a Chapter 11 proceeding, namely the express terms and conditions of a confirmed plan of reorganization. See In re Coastline Care, Inc., 299 B.R. 373, 377 (Bankr.E.D.N.C.2003) (noting and explaining in considerable detail how “the bankruptcy process work[s] very differently in chapter 11 than in other chapters [ ]”). In this case, a plan of reorganization was proposed, approved, and consummated. A bankruptcy court-approved plan of reorganization is the equivalent of a final judgment in which the interests, rights, and duties of the debtor, creditor, and other interested parties “are gathered, jostled, and are determined and released.” In re Ionosphere Chibs, Inc., 262 B.R. 604, 612 (Bankr.S.D.N.Y.2001) (citing Corbett v. MacDonald Moving Servs., Inc., 124 F.3d 82, 91 (2d Cir.1997)). The parties disagree over whether the applicable provisions of the plan of reorganization in this case re-vested the JPDI mechanics’ lien action and judgment in MCLP at the conclusion of the proceeding. Based upon a careful and thorough review of the plan, enlightened by the highly commendable assistance of counsel for both parties in them 'written and oral submissions to us, under applicable federal principles and as argued to us by MCLP, we conclude the plan as proposed and approved by the bankruptcy court released and revested the right to pursue the JPDI judgment in MCLP upon the consummation and closure of the bankruptcy case. See In re Coastline Care, Inc., 299 B.R. at 377-78 (explaining that in a confirmed Chapter 11 case, property of the estate vests in the debtor unless the plan or confirmation order provides otherwise, and allowing for disposition “even if that property was not included in the debt- or’s schedules.”).

Accordingly, we affirm the judgment of the trial court.

      . We affirmed this original judgment on appeal with minor exceptions not relevant here. See James P. Driscoll, Inc. v. Gould, 521 So.2d 301 (Fla. 3d DCA 1988).


author: GERSTEN, C.J.

text:
    Wilson COLORADO, Appellant, v. FLORIDA INTERNATIONAL UNIVERSITY, Appellee.
    No. 3D05-2477.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Tim F. Bower, for appellant.
    Isicoff, Ragatz, & Koenigsberg, and Eric D. Isicoff and Teresa Ragatz, Miami, for appellee.
    Before GERSTEN, C.J., and SHEPHERD, and ROTHENBERG, JJ.
   GERSTEN, C.J.

Wilson Colorado (“Colorado”) appeals his expulsion from Florida International University (“FIU”) due to academic misconduct. We affirm.

On appeal, Colorado contends that there was no competent substantial evidence of academic misconduct and that FIU violated his due process rights in his student disciplinary proceedings. FIU asserts that Colorado’s expulsion was based on competent substantial evidence and did not violate Colorado’s due process rights. We agree with FIU.

As a FIU engineering major, Colorado enrolled in a required engineering class. Colorado had unsuccessfully tried to pass this class three times. On his fourth attempt, Colorado sat for an open-book, open-note, and open-homework mid-term examination.

A proctor, following the professor’s detailed instructions, administered the midterm examination. After signing an attendance sheet, the proctor handed each student an examination. The proctor then recorded the expected time for each student to turn in the examination on the corner of the examination paper. Later, the proctor recorded the actual time the student turned in the examination in the same manner.

After the examination was finished, the proctor gathered the papers and reported to the professor. Eighteen students signed in, but only seventeen completed examinations were returned. The professor discovered that Colorado’s examination was missing.

Despite the missing examination, the professor partially graded all examinations. The next day, he placed the partially graded examination papers in a manila envelope in his office. Later that night, the professor returned to an unlocked office and discovered Colorado’s examination amidst the pile of partially graded papers. Colorado’s examination had an expected return time marked on the corner, but it did not contain the actual time Colorado returned the examination.

The professor did not confront Colorado immediately about the incident. Instead, he purposefully left part of Colorado’s examination ungraded, hoping Colorado would want to discuss the examination. Colorado, however, never came to discuss the mid-term examination.

On the eve of the final examination, one of the professor’s colleagues found Colorado wandering outside the professor’s office at midnight. Still suspicious, the professor had the final examination videotaped. The videotape showed another student passing a note to Colorado.

After the final examination, the professor had an initial meeting with Colorado, where the professor and the department chair advised Colorado of the alleged misconduct. A few months later, the professor filed a formal complaint of academic misconduct against Colorado, which Colorado denied. Colorado requested the University Academic Conduct Review Board (“the Board”) hear his case.

The Board notified Colorado of the scheduled hearing, and advised Colorado of his right to have an advisor present, and to challenge the impartiality of any of the Board members. Colorado did not make any challenges. After the hearing, the Board unanimously found Colorado had engaged in academic misconduct and recommended the most severe sanction— expulsion. FIU accepted the Board’s recommendations and expelled Colorado. Colorado appealed.

Based on the facts of this case, we find there was substantial competent evidence to support a finding of academic misconduct and expulsion. We also find that FIU did not violate Colorado’s due process rights and that FIU followed appropriate procedures in this student disciplinary action. See Matar v. Fla. Int’l Univ., 944 So.2d 1153 (Fla. 3d DCA 2006); see also Abramson v. Fla. Int’l Univ., 704 So.2d 720 (Fla. 3d DCA 1998).

Accordingly, we affirm FIU’s decision to expel Colorado for his academic misconduct.

. Affirmed.


author: ROTHENBERG, Judge.

text:
    H.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-873.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

H.T., a juvenile, appeals from an order withholding adjudication of delinquency, placing him on probation, and ordering payment of recovery costs and attorney’s fees. Because we conclude that the trial court erred in failing to conduct a Richardson hearing, and we cannot conclude that the error is harmless, we reverse and remand for a new trial.

On the night of June 14, 2006, two police officers from the Miami-Dade County School Board responded to a silent alarm triggered at the Paul W. Bell Middle School. There, the officers confronted H.T. and another juvenile male. H.T.’s companion was carrying a metal' prying bar. The officers drew their weapons, ordered the two juveniles to the ground, and took them into custody.

While in custody, H.T. made incul-patory statements to the officers both before and after receiving Miranda warnings. In his pr e-Miranda statements, H.T. admitted that the pair had broken into the school, popped open a vending machine, and removed money. After receiving Miranda warnings, H.T. repeated these admissions, showed the officers where he and his companion entered the school, and pointed out the damaged vending machine. The officers asserted, in a sworn arrest affidavit, that all of H.T.’s pre-Miranda statements were made “spontaneously.” H.T. was charged with burglary of an unoccupied structure and petit theft.

At the adjudicatory hearing, one of the arresting officers testified that after taking H.T. into custody, but before reading the Miranda warnings, the officer asked H.T. the following question: “What are you doing here?” H.T. responded, “Sorry man, you know, we broke into the school, we don’t want to go to jail, and we will never do it again,” thereby inculpating himself. This testimony sharply conflicted with the assertion in the sworn arrest affidavit that all of H.T.’s pr e-Miranda statements were made spontaneously. Based on the new evidence presented in court, defense counsel objected to the introduction of H.T.’s statements pursuant to Richardson, arguing that the State had waited until trial to disclose that H.T.’s pr e-Miranda statements were made in response to custodial interrogation, and that this late disclosure was a discovery violation. See Fla. R. Juv. P. 8.060(h) (stating’that the parties shall promptly disclose or produce any newly discovered witnesses, evidence, or material).

Without conducting a Richardson hearing, the trial court overruled the objection on the basis that the State had previously disclosed the fact that some of H.T.’s admissions were made before the reading of his Miranda rights. This finding, however, completely misses the point of defense counsel’s objection. While defense counsel was put on notice that his client had made statements pr e-Miranda, defense counsel relied on the discovery provided by the State reflecting that the statements H.T. made prior to being advised of his Miranda rights were spontaneous. It was during trial that defense counsel learned that, contrary to the discovery he had been provided pre-trial, H.T.’s pr e-Miranda statements had not been made spontaneously and were in fact provided as responses to questions posed by law enforcement. Based upon this newly acquired evidence, defense counsel had a good faith, viable motion to suppress H.T.’s statements.

Because the officer’s testimony conflicted with the information contained in the arrest affidavit (that the pr e-Miranda statements made by H.T. were spontaneous), and defense counsel objected citing to Richardson, the trial court was required to conduct a hearing to determine: (1) if there was a discovery violation; (2) if a discovery violation did occur, whether it was inadvertent or willful and whether it was trivial or substantial; and (3) its effect on the defense’s ability to prepare for trial. Sinclair v. State, 657 So.2d 1138, 1140 (Fla.1995). Although defense counsel’s objection clearly alleged a discovery violation, see C.D.B. v. State, 662 So.2d 738, 741 (Fla. 1st DCA 1995) (stating that no magic words are necessary to trigger the requirement that the trial court conduct a Richardson hearing), the trial court simply found that there was no discovery violation without conducting a Richardson hearing. This was error. See Landry v. State, 931 So.2d 1063, 1065 (Fla. 4th DCA 2006) (“A Richardson hearing is required when there is a -possible discovery violation in order to flesh out whether there has indeed been a discovery violation.”).

A hearing was required to determine if the State was aware, prior to the officers’ testimony at trial, that despite the representation in the arrest affidavit that H.T.’s pre-Miranda statements were spontaneous, the officer would testify that these statements were made pursuant to custodial questioning by law enforcement. If the inquiry led to a finding that the State was aware of this information prior to trial and failed to disclose it to the defense, then the trial court would have been required to find that a discovery violation occurred, requiring further inquiry regarding willfulness, materiality, and prejudice. Because the trial court failed to conduct the requisite hearing, it was in no position to conclude that no discovery violation had occurred.

We cannot conclude that the failure to conduct a Richardson hearing was harmless error. If there was a discovery violation, then the prejudice is obvious and substantial. Had defense counsel known that H.T.’s pre-Miranda statements were made in response to custodial interrogation, defense counsel would have had a viable motion to suppress both the pre-Miranda and post -Miranda statements made by H.T. We are not persuaded by the State’s argument that defense counsel could have litigated a motion to suppress H.T.’s statements during trial. H.T.’s statements were central to the State’s case. Prior to litigating such a critical motion, defense counsel would most likely have wanted to depose the officers, research the law, and have case law to provide to the trial court when making its arguments in favor of suppression. Depending on the trial court’s ruling, the defense of the case might have changed. The trial court’s failure to conduct a Richardson hearing in this case, thus results in reversible error.

Reversed and remanded for new trial.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

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


author: FARMER, J.

text:
    Stephen SPRADLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-817.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2007.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Defendant was convicted of felony battery, along with another offense, and sentenced for the felony battery as a prison releasee reoffender (PRR). He timely moved to correct the sentence, arguing that the PRR sentence was illegal because felony battery is not a qualifying crime for PRR sentencing. The trial court denied his motion. We reverse.

Simple battery is defined as “actually and intentionally touch[ing] or striking] another person against the will of the other; or intentionally causing] bodily harm to another person.” § 784.03(l)(a), Fla. Stat. (2006). Although this offense is ordinarily punishable as a misdemeanor, a second violation is punished as a felony. § 784.03(2), Fla. Stat. (2006). That is what happened here. The question is whether even a second offense of simple battery — a felony battery — is a qualifying crime for PRR sentencing.

While felony battery is not one of the enumerated felonies listed in the statute, a “catch-all” provision adds “[a]ny felony that involves the use or threat of physical force or violence against an individual.” Identical language is used in section 776.08 to define a “forcible felony.” Therefore, whether the PRR statute applies to felony battery depends on whether felony battery is within the meaning of “forcible felony.”

In State v. Hearns, 961 So.2d 211 (Fla.2007), the court held that the catch-all provision for qualifying PRR offenses could not be interpreted to make battery on a law enforcement officer (BOLEO)— and, by necessary implication, felony battery — a qualifying offense. The court said:

“None of these cases explicitly analyzes the BOLEO or the battery statute to determine whether BOLEO is a felony that involves the use or threat of physical force or violence. They simply assume that BOLEO satisfies this description. One judge, however, did analyze the issue in some depth. In Jenkins v. State, 884 So.2d 1014 (Fla. 1st DCA 2004), although the majority followed its decision in Branch [v. State, 790 So.2d 437 (Fla. 1st DCA 2000) ], the dissent argued that BOLEO cannot be a qualifying offense under the PRR statute because it is not necessarily a forcible felony. Judge Ervin analyzed our decision in Perkins [v. State, 576 So.2d 1310 (Fla.1991) ], and although that case involved a different statute, he concluded that ‘[u]nder the Perkins reasoning, the identical language in the PRR Act means that the elements of a qualifying third-degree felony must encompass the use or threat of physical force or violence. Because unwanted touching under section 784.03(1)(a)(1) may not necessarily be a violent act, it cannot be a. qualifying offense for PRR sentencing.’ We agree with Judge Ervin’s assessment.” [c.o.]

961 So.2d at 217-18. The Court further added:

“In applying the Perkins test, we analyze the elements of the battery statute from which BOLEO derives its conduct element. Section 784.03 defines battery as (a) actually and intentionally touching or striking another person against the will of the other; or (b) intentionally causing bodily harm to an individual.... Under Perkins, for BOLEO to constitute a forcible felony, all three alternatives must involve the use or threat of physical force or violence. If one of the elements does not, then BOLEO can be committed without the use or threat of physical force or violence, and BOLEO would fail the Perkins test....
Existing case law makes it clear that any intentional touching, no matter how slight, is sufficient to constitute a simple battery. Therefore, BOLEO, like battery itself, may be committed with only nominal contact.
As Respondent argues, if BOLEO were considered a forcible felony based on its intentional touching element, it could lead to potentially outrageous results. For example, tapping a law enforcement officer on the shoulder without consent would constitute a forcible felony. A child shooting a spitball at a school police officer would be guilty of a forcible felony. The possibilities are limited only by the imagination. But such minor infractions are incompatible with the level of force the forcible felony statute contemplates. The felonies enumerated in section 776.08 include murder, treason, carjacking, home-invasion robbery, arson, kidnapping, discharging of a destructive device or bomb, and aircraft piracy. Merely touching a law enforcement officer is not in the same league.” [c.o.]

961 So.2d at 218-19. The court also justified its holding under the canon of statutory construction holding that a general phrase following a listing of specific terms will not be interpreted to expand the meaning of the general phrase beyond the common characteristics of the listed specific terms. Because the qualifying provision specifies sexual battery and aggravated battery — but not simple battery — the PRR statute does not authorize an enhancement for simple battery.

We therefore hold that a felony battery does not, of necessity, involve the requisite level of physical force or violence contemplated by the PRR catch-all provision. It is not included within the qualifying forcible felonies. Because felony battery is not one of the enumerated batteries in the forcible felony statute, it is not one of the specific offenses for which a defendant can be made to suffer the enhanced punishments of a PRR.

Reversed.

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

      . See § 775.082(9)(a)(1), Fla. Stat. (2006).


text:
    Robert LUSCOMB and Mary Luscomb, Appellants/Cross-Appellees, v. LIBERTY MUTUAL INSURANCE COMPANY; BJ’s Wholesale Club, Inc., a foreign corporation; and BJCR, Ltd., a foreign limited partnership, Appellees/Cross-Appellant.
    No. 3D07-15.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Vaka, Larson & Johnson and George A. Vaka and Nancy A. Lauten, Tampa, for appellants/cross-appellees.
    Law Office of Glenn G. Gomer and Melisa L. Bodnar, Tampa, for appellee/cross-appellant Liberty Mutual Insurance Company.
    Before WELLS and CORTIÑAS, JJ, and FLETCHER, Senior Judge.
   PER CURIAM.

Robert Luscomb and Mary Luscomb (collectively “Luscomb”) appeal a final judgment imposing a workers’ compensation lien on proceeds of a personal injury claim against a third party. Liberty Mutual Insurance Company cross appeals the trial court’s final judgment and interlocutory orders relating to Luscomb’s attorney’s fees and costs. Liberty Mutual asserts that Luscomb’s attorneys were required to disgorge $50,662 in fees and costs for application to Liberty Mutual’s lien.

This ease turns on the application of section 440.39(3)(a), Florida Statutes, as in force on the date of Robert Luscomb’s injury, to the claims and proceeds in question. We reverse and remand for the additional factual determination required by the statute on the facts of this case. We provide direction to the trial court on the use of that additional fact to compute Liberty Mutual’s lien and entitlement to all or some portion of the net settlement proceeds of $81,748.

We review the application of the workers’ compensation lien statute de novo and any trial court findings of fact under the substantial competent evidence standard of review.

I. Pertinent Facta

Robert Luscomb worked for Raven Transport Company. Raven Transport’s workers’ compensation coverage was provided by Liberty Mutual. On September 8, 1999, Luscomb’s right foot and ankle were badly injured as he delivered goods to BJ’s Wholesale Club in Miami. Ultimately Luscomb’s right foot was amputated, and he incurred hundreds of thousands of dollars in medical expenses. His disability also resulted in the loss of his job and income as a truck driver for Raven Transport.

Liberty Mutual paid workers’ compensation medical and disability benefits as provided by law. Luscomb did not file third-party tort claims during the year following his injury, and neither Raven Transport nor Liberty Mutual brought suit during the second year following the injury. Under section 440.39(4), Luscomb’s rights of action against third-party tortfeasors then reverted to him, but subject to Liberty Mutual’s subrogation and lien rights as provided by section 440.39(2) and (3).

In July 2003, Luscomb filed tort claims against BJ’s Wholesale Club, Inc., and BJCR, Ltd., based on the accident and his damages. Liberty Mutual promptly filed a notice of lien in the lawsuit for compensation and medical benefits paid to Luscomb, then alleged to be $637,064.07.

The claims against BJ’s settled after mediation in 2005 for $215,000. At that point, Liberty Mutual’s disbursements and lien exceeded $1 million. When Luscomb’s attorney’s fees of $86,000 (a 40% contingent fee) and $47,252 in costs were subtracted, the net settlement proceeds otherwise payable to Luscomb were $81,748.

Liberty Mutual claims that the statutory lien computation includes a portion of Lus-comb’s attorney’s fees and costs, such that the correct lien amount is actually greater than the net amount otherwise payable to Luscomb. Liberty Mutual argues that Luscomb’s attorneys must disgorge $50,662 in attorney’s fees and costs as Liberty Mutual’s statutory “pro rata share” of the total fees and costs so that those funds may be applied to Liberty Mutual’s lien.

The trial court stopped short of requiring Luscomb’s attorneys to repay that amount to the trust account balance held for Luscomb, $81,748. The final judgment imposed a lien of $132,410, but limited Luscomb’s obligation to his net proceeds of $81,748.

Luscomb argues that the $215,000 settlement amount is not the “full value of damages sustained” for purposes of the lien statute. His experts placed the full value of the third-party tort claim at $5 million to $6 million, taking into account his life expectancy, medical expenses, and lost earning capacity. Luscomb maintains that the trial judge was required to make a determination of the full value of the tort claim against BJ’s — without reduction for any comparative negligence by Luscomb— for use as the denominator in calculating Liberty Mutual’s lien and entitlement to any of the net proceeds. That percentage would be applied to Liberty Mutual’s total benefits payments of $1,120,408 to produce Liberty Mutual’s lien amount. If Liberty Mutual’s resulting lien amount is below $81,748, Luscomb will recover the balance of those proceeds personally (free of the lien).

II. Section M0.S9(8)(a)

The lien statute has a straightforward and appropriate objective — the prevention of double recoveries by injured employees who have recovered statutory benefits under the workers’ compensation law but also have claims against responsible parties other than the employer. Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1108 (Fla.2006). The statute allows the employer or insurer to be subrogated to the proceeds of such third-party tort recoveries to the extent of the amounts paid or to be paid by the employer or insurer.

The statutory mechanism gives the employee one year from the date the cause of action accrued to commence the third-party lawsuit. The employer or insurer paying workers’ compensation benefits to the employee then has a second year within which to commence the lawsuit. At the end of the second year, the rights of action revert to the employee, but are (as before) subject to the employer or insurer’s subro-gation and lien rights.

This very logical process, and the statute describing it, becomes more complicated because of the broad array of circumstances that may occur with the third-party claims and recoveries. They may be brought by the employee, employer, or insurer (based on the one-year windows described above), and the attorneys prosecuting the claims may therefore be compensated by the employee, employer, or insurer. The employee may have settled all the workers’ compensation medical and indemnity claims for a lump sum (as here), or the benefits may continue to be payable into the future. The third-party recoveries may exceed the total benefits paid and to be paid by the employer or its insurer, or they may be less than that total (as here). There may be multiple third-party claims and recoveries, and therefore multiple computations of the lien, and the recoveries may occur at different times. A particular recovery may be less than the “full value” of the third-party claim for a variety of reasons: other third-party tort-feasors may be responsible for some of the damages, the employee may have been comparatively negligent, or the plaintiff and counsel for the plaintiff may discount the value of the claim in order to avoid the risk and delay inherent in any lawsuit.

Drafting a single statutory provision to consider that array of permutations is daunting, to say the least. The application of section 440.39(3)(a) is equally daunting. The pertinent sentences, which are only a portion of subparagraph (a), are:

Upon suit being filed, the employer or the insurance carrier, as the ease may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his or her dependents, which notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of this law, less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney’s fees for the plaintiffs attorney. In determining the employer’s or carrier’s pro rata share of those costs and attorney’s fees, the employer or carrier shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney’s fees. Subject to this deduction, the employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, except, if the employee or dependent can demonstrate to the court that he or she did not recover the full value of damages sustained, the employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, a percentage of what it has paid and future benefits to be paid equal to the percentage that the employee’s net recovery is of the full value of the employee’s damages ....

§ 440.39(a), Fla. Stat.

In applying these terms to the relative rights of Luscomb and Liberty Mutual following the $215,000 settlement, the trial court did not have to confront two of the variables that can make the computations more complicated. First, the workers’ compensation claims had been fully settled, and this meant that the maximum amount of the lien was a liquidated sum. Second, there was no evidence that other non-settling third-party tortfeasors might provide further sources of recovery attributable to the accident.

III. Analysis

Section 440.39(3)(a) has produced a continuing line of cases interpreting its daunting directives. Those cases illuminate and control the application of the statute here.

The first issue is whether Liberty Mutual’s lien may attach to the settlement funds beyond the net amount otherwise payable to Luscomb. Specifically, the trial court found that Liberty Mutual’s lien exceeded that net amount of proceeds, and Liberty Mutual argues that Luscomb’s attorneys must disgorge that excess by refunding a portion of their fees incurred in producing the settlement.

That question was answered in City of Hollywood v. Lombardi, 770 So.2d 1196, 1202 (Fla.2000), and Aetna Insurance Co. v. Norman, 468 So.2d 226, 228 (Fla.1985), each of which held that the workers’ compensation lien recovery was capped at the claimant’s net recovery. The final judgment and orders below are thus incorrect to the extent that they impose any lien over the settlement funds or right of recovery in favor of Liberty Mutual to proceeds of the settlement in excess of the $81,748 net recovery. Section 440.39(3)(a) does not penalize an injured worker’s counsel — who, after all, produced a subro-gation recovery for the insurer — for successfully prosecuting the worker’s claim against a third-party tortfeasor.

The second issue is whether Liberty Mutual’s lien over the net proceeds must be reduced to a percentage of the benefits paid by Liberty Mutual because of evidence in the trial court that, in the words of section 440.39(3)(a), Luscomb “did not recover the full value of damages sustained.” The trial court found that Luscomb “failed to establish any conditions showing comparative negligence at the time of the injury which would occasion a diminution in the amount to be reimbursed to Liberty Mutual Insurance Company,” but that is not the determination required by the statute.

The threshold question for the trial court was whether Luscomb demonstrated that he did not recover the full value of his damages sustained in the accident. Clearly he made such a showing, and Liberty Mutual (having paid out over $1.1 million of such damages) cannot argue otherwise. Determining a percentage of comparative negligence is no longer required because, as the Florida Supreme Court has held, that question “introduces an artificial issue which need not be litigated” in a situation such as this, undermines the common interest of the worker and compensation carrier in obtaining full value, and may give one or the other of the two “an undeserved windfall.” Manfredo v. Employer’s Cas. Ins. Co., 560 So.2d 1162, 1164-65 (Fla.1990) (quoting Nikula v. Michigan Mut. Ins., 531 So.2d 330, 331-32 (Fla.1988)). Therefore, the controlling factor for evaluating the settlement allocation is “the ratio of net recovery to full value of damages.” Manfredo, 560 So.2d at 1165 (quoting Nikula, 531 So.2d at 332 n. *).

Liberty Mutual maintains that the “full value” determination is not required here because the trial court found that Luscomb “failed to establish any conditions showing comparative negligence at the time of the injury....” However, the record discloses that the defendants in the tort lawsuit raised comparative negligence (based on Luscomb’s decision to walk in the muddy water in the rain-soaked loading dock), and Luscomb’s expert evaluated both the full value of the damages and the likelihood of a reduced recovery as a result of that comparative negligence. The record does not disclose other reasons for Luscomb’s acceptance of $215,000 in gross settlement funds in a case in which his damages had already exceeded $1 million.

Because the trial court did not determine “the full value of damages sustained” by Luscomb, we reverse and remand with directions to do so. The $81,748 in net settlement proceeds will then be divided by the “full value” figure to produce a percentage. That percentage will be applied to Liberty Mutual’s total benefits paid, $1,120,408, to determine the insurer’s lien amount. For example, if the trial court determines upon remand that the full value of the damages sustained by Luscomb was $5 million, the percentage would be 1.635% and the lien amount would be $18,318.

If Liberty Mutual’s lien as computed after remand exceeds $81,748, it will recover all of the net settlement proceeds. If the lien is less than that amount, Liberty Mutual will be paid its lien from the proceeds, and the remaining balance will be paid to Luscomb.

IV. Conclusion

Liberty Mutual’s lien on the proceeds of the. settlement of Luscomb’s third-party claim against BJ’s as provided by section 440.39(3)(a) will not exceed the net proceeds otherwise payable to Luscomb. Those attorneys are not required to pay over part of their agreed fees or disbursements toward the satisfaction of Liberty Mutual’s lien.

We reverse the judgment and orders below and remand this case to the trial court for a determination of the full value of Luscomb’s damages based on the evidence presented by the parties. The trial court should then divide the amount of $81,748 by that full value. The resulting percentage is to then be applied to compute Liberty Mutual’s lien and to pay those proceeds as specified above.

Reversed and remanded with directions.

      . September 8, 1999.

      . The two BJ's defendants were the entity operating the retail store and the entity owning the store property.

      . Both sides litigated this issue at the hearing on equitable distribution, so it would seem that additional evidence would not be required. We leave this judgment, however, to the discretion of the trial court.


text:
    D.E., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2667.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ and ROTHENBERG, JJ.
   PER CURIAM.

D.E. appeals the trial court’s order finding him guilty of carrying a concealed firearm in violation of sections 790.01(2) and 775.087, Florida Statutes (2006). D.E. contends that there was insufficient evidence to support the trial court’s determination. We affirm.

Here, there is competent, substantial evidence to support the trial court’s findings and we do not disturb the trial court’s credibility determinations. See, e.g., C.C., Jr. v. State, 943 So.2d 905 (Fla. 5th DCA 2006); K.M. v. State, 545 So.2d 464 (Fla. 3d DCA 1989).

Affirmed.


text:
    Sohail DELFANI, M.D., Appellant, v. Martha CROMER, individually, and as Personal Representative of the Estate of Curtis L. Cromer, Appellee.
    No. 3D06-2870.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.

      Wicker, Smith, O’Hara, McCoy & Ford, P.A., and Shelley H. Leinicke, Ft. Lauder-dale, for appellant.
    McKenna & Obront, and Paul A. McKenna, Miami, for appellee.
    Before GERSTEN, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

Dr. Sohail Delfani, defendant below, appeals an order granting a new trial after a jury entered a verdict in his favor in this wrongful death action. We affirm.

He argues that the trial court abused its discretion when it conducted an eviden-tiary hearing and ordered a new trial based upon the jury foreperson’s nondisclosure of his involvement in nine prior civil cases and one criminal case in response to jury questionnaire questions regarding prior litigation history. We disagree. The trial court’s determination that the juror concealed this information during questioning; that the information was relevant and material to jury service in the case; and that the juror’s failure to disclose the information was not attributable to the appellee/plaintiffs lack of diligence is fully supported by the record before us. Therefore, we cannot conclude that the order granting a new trial constituted an abuse of discretion. See Roberts v. Tejada, 814 So.2d 334 (Fla.2002); De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995).

As to Dr. Delfani’s two remaining issues on appeal pertaining to two evidentiary rulings during the trial below, we similarly find no abuse of discretion and affirm.

Affirmed.

      . Specifically, the questionnaire included the following two questions:
      8. Have you or any family member ever been sued or have you sued someone else, this is including claims made by you or against you, which never went to court.
      11. Have you or anyone close to you ever been charged with a crime not including any traffic tickets. If yes, explain.
      The juror in question handwrote "no” on his questionnaire to both questions.


author: PER CURIAM. GERSTEN, C.J.,

text:
    The STATE of Florida, Petitioner, v. Eloy DELAMA and Theresa Jimenez, Respondents.
    No. 3D07-1361.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Rehearing Denied Nov. 9, 2007.
    Bill McCollum, Attorney General; Katherine Fernandez Rundle, State Attorney, and Penny H. Brill, Assistant State Attorney, for petitioner.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for respondent Eloy Delama; Mark Graham Hansen, for respondent Theresa Jimenez.

      Before GERSTEN, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

While the ruling below was entirely understandable, the trial court lacked authority to deny the state’s request to issue a rule to show cause against the respondent Jimenez under the circumstances. Accordingly, the order on review is quashed and the cause remanded for further proceedings.

ROTHENBERG, J., and SCHWARTZ, Senior Judge, concur.

GERSTEN, C.J.,

dissenting.

I respectfully dissent on two grounds. First, neither the rules of criminal procedure nor well-established contempt jurisprudence require the trial court to issue a rule to show cause. Second and more importantly, sound public policy mandates discretion under the circumstances of this case.

The issue before us is clear: Does a trial judge have the discretion to deny the State’s request to issue a rule to show cause against the alleged victim of domestic violence when the victim does not want to testify? I believe that the answer is yes.

According to the State, the respondent, Theresa Jimenez, is a battered woman. The State properly subpoenaed her to appear for a pre-file conference to discuss charges brought against her alleged abuser. The respondent failed to appear. Thereafter, the State sought a rule to show cause under Florida Rule of Criminal Procedure 3.840, which governs indirect criminal contempt proceedings.

The trial judge clearly understood that the State wanted the alleged victim to cooperate in the criminal investigation. If, after issuing the rule to show cause, the victim still refused to testify, the next logical step would be the State’s request to have the victim arrested for contempt. The compassionate trial judge refused to issue the rule to show cause stating, “I am not going to start down a path, I’m not willing to finish.”

There is no denying that the State has the authority to issue investigative subpoenas and to seek the court’s enforcement in contempt proceedings against recalcitrant individuals. See §§ 27.04, 27.181(2), Fla. Stat. (2006); Kelley v. State, 800 So.2d 247 (Fla. 2d DCA 2001) (against a sister who witnessed violent crime against her brother); Valdez v. State, 555 So.2d 1311 (Fla. 1st DCA 1990) (against a mother for failure to appear in criminal case against her daughter’s molester); In re Getty, 427 So.2d 380 (Fla. 4th DCA 1983) (against a witness in drug case).

Nothing governing contempt, however, divests the court’s discretion to deny using its contempt power against a purportedly battered woman. Simply stated, rule 3.840 does not compel the trial court to issue a rule to show cause. Rather, rule 3.840(a) plainly states:

The judge, on the judge’s own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed at the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.

(emphasis added). In general and under the circumstances of this case, I would apply the following simple formula: “may = discretion.”

A court’s power to punish for contempt is well established. So too is the corresponding obligation of restrained use. See Moakley v. Smallwood, 826 So.2d 221 (Fla.2002); Thomas v. State, 752 So.2d 679 (Fla. 1st DCA 2000); Harper v. State, 217 So.2d 591 (Fla. 4th DCA 1968).

Harper involved a statute prohibiting the presence of anyone, other than persons expressly allowed, in a grand jury session. The statute provided that any person in violation “may” be held in contempt of court. Harper, a prosecutor, permitted a non-allowed expert to assist in interrogating various witnesses before the grand jury. The trial court concluded that, under the statute, it had no choice but to sentence the prosecutor for contempt. On appeal, the Fourth District reversed because “the language employed and the proceedings generally” did not destroy the trial court’s discretion in the matter. Harper, 217 So.2d at 594.

Similar to Harper, this trial judge exercised his wise discretion stating his basis for not activating the mechanisms of a contempt order. In essence, even if the judge commanded the victim to appear in court, he was not willing to go further and incarcerate the battered woman should she refuse to testify. Thus, this legal inquiry should end with a judge’s discretionary call.

Turning next to public policy, I believe that it is sound public policy to give judges the discretion to issue a rule to show cause against a battered domestic violence victim. The reasons are myriad, and my further writings are both brief and not exhaustive.

First, a battered woman knows what is best for the well-being df her children and herself. Her foremost concern is necessarily the safety and welfare of her family. She may know or believe that it is more dangerous for her to appear and testify, than not. She may suspect that her testimony would result in a conviction of her partner. This, in turn, may adversely impact her ability to house or feed her family. It may also impact her ability to pay for the childcare which allows her to continue to work. Thus, her refusal to testify, in reality, may be an economic determination made to meet basic familial needs.

In addition, if a trial judge uses the powerful resources and coercive nature of the prosecutorial system, the victim may view the judicial system as another abuser in her life. She will feel that there is no place to turn for help, safety, or justice. It is certainly possible that by making the battered woman a victim of the judicial system, her natural reluctance to seek safety in the courts may, in the future, result in drastic harm to herself or her family.

Having said this, I recognize and sympathize with the State’s position. I understand that the reason the State is pursuing a rule to show cause is because the State wants to prosecute the batterer. Without testimony from their victims, many batterers may avoid conviction.

Florida, like many other jurisdictions, has a pro-prosecution policy for acts of domestic violence. See § 741.2901, Fla. Stat. (2006). This commendable policy, however, should not be carried to the point of putting the victim in jail to coerce her cooperation.

Consider the following scenario where a judge might have entered a rule to show cause against a domestic violence victim: The victim does not respond to the rale, and the court issues an order of arrest for contempt. Assume that the police stop the victim one week later, late Friday afternoon, for a traffic infraction. After a routine computer check, the police properly arrest her.

The police then place her in the county jail where she stays over the weekend. Her children are with a neighbor, school, or daycare facility who expects the mother to pick them up that evening. Unaware of the arrest and unable to continue caring for the children, the neighbor, school, or daycare facility calls the police who, in turn, call the Department of Children and Families, who, in turn, pick up the children.

Meanwhile, on Monday, the victim is finally brought before the judge who issued the order. She decides to testify rather than stay in jail. Because the Department of Children and Families now has her children, she has to jump through multiple hoops to get them back. This process is arduous, confusing, and time-consuming.

The State has obtained the information it sought, but at a great expense to the victim. Should the reader believe such a scenario unlikely, a comparable situation occurred in Alaska during the early years of its domestic violence “no-drop” prosecution policy. See John Riley, Spouse-abuse Victim Jailed After No-Drop Policy Invoked, 5 Nat’l L.J. 4 (col.1) (Aug. 22, 1988).

Although it might be more difficult to prosecute the case without a victim, many cases have other evidence that the State can introduce. The progressive trend is “evidence based” or “victimless” domestic violence prosecution. This type of prosecution relies on the use of out-of-court statements and other physical evidence to establish the defendant’s guilt when the complaining witness refuses or is otherwise unable to cooperate with the prosecution. See David Jaros, The Lessons of People v. Moscat: Confronting Judicial Bias in Domestic Violence Cases Interpreting Crawford v. Washington, 42 Am. Crim. L.Rev. 995, 1001 (2005).

Further, if the victim is unwilling to come in and talk to the prosecutor, why would the victim testify against the defendant on the witness stand? If the victim does not testify truthfully or testifies for the defense, then the State will surely fail to convict the batterer. Additionally, the State must then consider whether to charge the victim with perjury. Thus, this tactic may again result in punishing the victim instead of the batterer.

In my mind, the better approach is to follow the example of our sister state, California. California specifically exempts victims of sexual assault and domestic violence from incarceration if they refuse to testify. See Cal.Civ.Proc.Code § 1219(b) (2007). Florida should consider clarifying the issue by enacting such a socially progressive rule. Regardless, I believe Florida, by rule 3.840, actually gives a judge the discretion of whether to issue a rule to show cause.

In conclusion, I believe that the majority’s opinion is contrary to the plain language and meaning of rule 3.840(a) and is against sound public policy. Again, I respectfully dissent.


author: STEVENSON, J.

text:
    Rodney WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3619.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2007.

      Rodney White, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

In this appeal from the summary denial of a motion for post-conviction relief under rule 3.850, we reverse in part and affirm in part.

Following the denial of his motion to suppress, Rodney White pled no contest to charges of resisting an officer with violence (count I), escape (count II), possession of ecstasy (count III), criminal mischief (count IV), and possession of marijuana (count V). White was sentenced to 26.54 years incarceration. Although a notice of appeal reflecting an intent to challenge the ruling on the motion to suppress was timely filed, White’s public defender subsequently voluntarily dismissed the appeal. Shortly thereafter, Wfliite filed a 3.850 motion, wherein he raised three claims of ineffective assistance of counsel: (1) counsel was eon-fused regarding the evidence to be suppressed; (2) counsel failed to adequately investigate prior to the suppression hearing and, had counsel done so, would have discovered evidence with which to assail the credibility of the officer who initiated the stop of the car White was driving; and (3) counsel advised White that the ruling on the motion to suppress was dis-positive of the case, the ruling would be reserved for appeal pursuant to his plea, and counsel was “absolutely certain” White would prevail on the matter before the trial court and, if necessary, on appeal. White’s motion was accompanied by excerpts of the hearing on the motion to suppress and a computer print-out. The trial court summarily denied the same without ordering a response from the State and without attaching any portions of the record to conclusively refute White’s claims.

We find no error in the summary denial of claims (1) and (2). White is not entitled to any relief with respect to the first claim because the transcript excerpts attached to White’s own motion refute the factual basis for the claim. See Peede v. State, 748 So.2d 253, 257 (Fla.1999) (stating that summary denial can be affirmed where claim is conclusively refuted by record or facially invalid). And, even if, as White claims, the drugs were found on his person during a search incident to his arrest for resisting an officer with violence, they would not have been subject to suppression as a defendant may not resist an officer with violence even if the arrest is without probable cause. See, e.g., State v. Roy, 944 So.2d 403 (Fla. 3d DCA 2006). As for the second claim, White simply cannot demonstrate the required prejudice.

White’s third claim, though, is another matter. The gist of White’s complaint here is that his trial counsel told him that he would have the right to appeal the ruling on the motion to suppress, that this turned out not to be the case because the ruling was not dispositive prompting the voluntary dismissal of his appeal, and that he would not have entered the plea had he known he would be unable to appeal. Here, any ruling on the motion to suppress could not have been dispositive because, at a minimum, count I (resisting an officer with violence) would be unaffected. See Armas v. State, 947 So.2d 675, 678 n. 5 (Fla. 2d DCA 2007). Thus, if, in fact, White entered a plea conditioned on his right to appeal the ruling on the motion to suppress, then his plea was the product of misadvice of counsel and such misadvice constitutes a legally sufficient basis for 3.850 relief. Neither White’s claims regarding the “appealability” of the ruling on the motion to suppress nor his claims regarding his counsel’s assurances of success are refuted by the record. Thus, as conceded by the State in response to our show cause order, the summary denial of White’s third claim must be reversed and the matter reversed for either the attachment of portions of the record conclusively refuting White’s claim or an evidentiary hearing. See, e.g., Hawley v. State, 822 So.2d 552, 553 (Fla. 1st DCA 2002) (reversing summary denial of rule 3.850 motion where defendant claimed counsel was ineffective by assuring him several court rulings were appealable following his plea, appellate court refused to address some of rulings on ground that they were not dis-positive, and record did not refute defendant’s claims of such assurances on the part of counsel).

SHAHOOD, C.J., and WARNER, J., concur.


author: GROSS, J.

text:
    Leda MONTICELLO, Appellant, v. Ralph MONTICELLO, Appellee.
    No. 4D06-3648.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2007.
    Troy W. Klein of Troy W. Klein, P.A., West Palm Beach, for appellant.
    No bi'ief filed for appellee.
   GROSS, J.

We reverse one aspect of the supplemental final judgment of dissolution. The wife sought to put on evidence of the husband’s dissipation or waste of marital assets that occurred more than two years prior to the filing of the petition for dissolution. It appears that the trial judge read section 61.075(l)(i), Florida Statutes (2006) as precluding such testimony. We agree with the analysis in Beers v. Beers, 724 So.2d 109, 114-116 (Fla. 5th DCA 1998), which held that “the two-year time period set forth in subsection 61.075(1)(i) does not bar a trial court from considering, as an ‘other factor,’ dissipation of marital assets which occurs prior to the two-year period preceding the filing of the petition for dissolution.” See § 61.075(1)(j), Fla. Stat. (2006) (stating that in distributing-marital assets and liabilities, the court may consider any “factor[ ] necessary to do equity and justice between the parties”).

We remand to the trial court for the wife to have an opportunity to present evidence of “remote dissipation.” Beers, 724 So.2d at 115. Whether such evidence should be taken into account in fashioning equitable distribution “is a determination best left to the sound discretion of the trial judge.” Id.

We affirm the trial judge’s rulings on the special equity and permanent alimony.

Affirmed in part, reversed in part, and remanded.

STONE and POLEN, JJ., concur.


text:
    John RIVERA, Appellant, v. Christopher R. MAZZELLA, Appellee.
    No. 3D07-725.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Rhea P. Grossman, Ft. Lauderdale, for appellant.
    William L Richey, Miami; Ferrell Law, P.A., and H. Eugene Lindsey, and Jenifer J. Soulikias, and Milton M. Ferrell, Miami, for appellee.
    Before GERSTEN, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. McNayr v. Kelly, 184 So.2d 428 (Fla.1966); Densmore v. City of Boca Raton, 368 So.2d 945 (Fla. 4th DCA 1979); Johnsen v. Carhart, 353 So.2d 874 (Fla. 3d DCA 1977).


text:
    Siddiq B.A. ASAD, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D06-3258.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2007.
    Siddiq B.A. Asad, pro se, Appellant.
    Bill McCollum, Attorney General, and Pamela Lutton-Shields, Special Counsel, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. RApp. P. 9.020(h), 9.420(a)(2); Scott v. Fla. Dep’t of Child & Fam., 804 So.2d 486 (Fla. 1st DCA 2001). All pending motions are denied as moot.

KAHN, VAN NORTWICK, and HAWKES, JJ., concur.


author: BENTON, J.

text:
    Robin ARNOLD, former wife, Appellant, v. Edward S. ARNOLD, former husband, Appellee.
    No. 1D06-5275.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2007.
    Ross A. Keene of Beroset & Keene, Pensacola, for Appellant.
    Gregory D. Smith of Gregory D. Smith, P.A., Pensacola, for Appellee.
   BENTON, J.

Robin Arnold appeals a supplemental final judgment of dissolution of marriage, asserting as error its failure to consider any part of Edward Arnold’s deferred retirement option program (DROP) account in effecting equitable distribution. We reverse and remand for equitable distribution of all marital assets, including a portion of the DROP account.

Mrs. Arnold argued below and asserts on appeal that the portion of the DROP account attributable to Mr. Arnold’s employment during them marriage — until he filed for dissolution on November 7, 2001 — is a marital asset which should have been distributed equitably. (The DROP account had accrued $95,146.43 as of September 30, 2004.) Employed by the City of Pensacola Fire Department since November 7, 1977, Mr. Arnold was working there when the parties married on February 22, 1990, and continued to work for the City as long as the marriage lasted. After he filed the petition for dissolution, he enrolled in the DROP program on or about May 27, 2002.

Section 61.075(1), Florida Statutes (2006), provides that, “in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution.” Marital assets are defined by statute to include “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.” § 61.075(5)(a)(4.), Fla. Stat. (2006) (emphasis supplied).

Subsequent to the trial court’s ruling below, we decided two cases making clear that benefits giving rise to rights in a DROP account could “accrue[ ] during the marriage,” within the meaning of the statute, and therefore constitute marital assets, even though funds were not deposited in the DROP account until later. See Nix v. Nix, 930 So.2d 711, 712 (Fla. 1st DCA 2006), review dismissed, 959 So.2d 209 (Fla.2007); Pullo v. Pullo, 926 So.2d 448, 450 (Fla. 1st DCA 2006). Although it is without precedential significance, we note that the supreme court refrained from disturbing the ruling in Nix. See 959 So.2d 209. See also Russell v. Russell, 922 So.2d 1097 (Fla. 4th DCA 2006); Swanson v. Swanson, 869 So.2d 735 (Fla. 4th DCA 2004); Ganzel v. Ganzel, 770 So.2d 304 (Fla. 4th DCA 2000).

Allocating DROP accounts between former spouses is closely analogous to the “deferred division of benefits on a fixed percentage basis” approach used for pensions, which was discussed with approval in DeLoach v. DeLoach, 590 So.2d 956, 965 (Fla. 1st DCA 1991), disapproved on other-grounds, Boyett v. Boyett, 703 So.2d 451 (Fla.1997). In DROP cases, the “deferred division of benefits on a fixed percentage basis,” DeLoach, 590 So.2d at 965, includes all associated interest and cost of living-adjustments. See Nix, 930 So.2d at 712; Pullo, 926 So.2d at 450-51.

For purposes of equitable distribution, each spouse has an interest in all retirement, annuity and deferred compensation benefits, including DROP accounts — or portions thereof — to which either spouse earns the right during the marriage. Such benefits are marital assets under section 61.075(5)(a), Florida Statutes (2006).

Reversed and remanded.

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


author: BARFIELD, J.

text:
    Craig SIMS, Appellant, v. Wayne MEREDITH and Wanda Meredith and M. Pete McNabb of Northwest Florida, Inc., Garnishee, Appellees.
    No. 1D06-5771.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2007.

      Robert 0. Beasley and Chris K. Ritchie of Litvak Beasley & Wilson, LLP, Pensas-cola, for Appellant.
    James M. Messer of the Messer Law Firm, P.A., Pensacola, and William R. Mitchell, Pensacola, for Appellees.
   BARFIELD, J.

Appellant, Craig Sims, sought to enforce a judgment against Wayne and Wanda Meredith by serving two writs of garnishment on M. Pete McNabb, who Sims believed owed money to the Merediths. The writs were served by certified process servers. McNabb moved to quash service of process on the grounds that such process must be served by a sheriffs deputy. The trial judge agreed and quashed service of both writs. We reverse.

Section 48.021, Florida Statutes (2003) and (2005), provides all process will be served by a sheriff except for initial non-enforceable civil process. A writ of garnishment brings before the court, for the first time, a garnishee believed to hold money or other property of the judgment debtor. Before any enforcement can be had under chapter 77, Florida Statutes (2005), the debtor is entitled to notice and may assert exemptions, the garnishee is afforded an opportunity to answer, and the judgment creditor must obtain a judgment against the garnishee.

Service of a writ of garnishment is an initial non-enforceable civil process. The judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings.

BENTON and THOMAS, JJ, concur.


text:
    SCHOOL BOARD OF LEVY COUNTY, Appellant, v. Juanita TERRELL, Appellee.
    No. 1D07-0300.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2007.

      Lisa J. Augspurger, of Bush, Augspur-ger & Lynch, P.A., Orlando, for Appellant.
    Carla D. Franklin, Gainesville, for Ap-pellee.
   PER CURIAM.

The School Board of Levy County appeals a writ of mandamus directing the reinstatement of a teacher with back pay. Because the teacher did not have a clear legal right to reinstatement, mandamus will not lie and we reverse.

Juanita Terrell became a classroom teacher in the public schools of Levy County on August 12, 1985. Beginning in 1988 and continuing through 2001, she received one-year professional service contracts as a classroom teacher. A teacher with a “professional service contract” has a continuing right to employment and can not be dismissed or have her contract not renewed unless it is established that the teacher’s performance is unsatisfactory. § 1012.33(3)(e), Fla. Stat. (2005).

In 2001, Ms. Terrell accepted a promotion to assistant principal and signed an annual administrator’s contract titled “Contract of Employment of Supervisors and Principals.” She continued under these contracts each year up to and including the 2004-05 school year.

The “Contract[s] of Employment for Supervisors and Principals” provided that neither party “owes any further contractual obligation to the other after [June 30, 2005], and that no expectancy of re-employment may be derived from the execution of [sic] performance of this agreement.” It also stated: “This contract shall at all times be subject to any and all laws, and all lawful rules, regulations, or policies now existing or hereafter enacted.” (Emphasis supplied.)

The School Board of Levy County had a policy, contained in section 6.08(2)(c-d) of its rules, providing that a teacher under a professional service contract who later became a supervisor or principal would be entitled to reassignment to a teaching position if his or her contract as a supervisor or principal was not renewed. This policy was repealed on February 2, 2005, in a lawfully noticed and public meeting of the school board.

On April 25, 2005, the superintendent of schools informed Ms. Terrell, by letter, that her contract as assistant principal would not be renewed after its expiration date.

The trial court issued a writ of mandamus commanding the school board to reinstate Ms. Terrell to a position as a classroom teacher with full benefits and back pay. In its order, the court found that “the change to Rule 6.08 to delete Rule 6.08(2)(e) and Rule 6.08(2)(d) ... was so profound and affected such a slight number of people that it literally required personal notice of the proposed change to [Ms. Terrell],” and that the evidence did not show that Ms. Terrell was aware that she was at risk of losing her employment because she was placed on a Professional Development Plan.

It should be noted that the reasons expressed by the trial court for issuing a writ of mandamus were not raised or argued by Ms. Terrell’s counsel below. Because the basis for the trial court’s ruling could not be supported by law, the appellee, through counsel, abandoned these reasons on appeal.

Instead, the appellee argues that we should affirm on the theory argued at trial, to wit, that the school board repealed rules 6.08(2)(e) and (d) such that they applied retroactively to Ms. Terrell. Ms. Terrell contends that she had every right to, and in fact relied upon, the right created by these rules to be reinstated as a classroom teacher.

However, the plain language of her contract belies any legal reason to rely on the continuation of rules 6.08(2)(c) and (d) as part of her contract where the contract expressly provides that it is subject to laws and rules “now existing or hereafter enacted.”

Therefore, in the absence of a clear legal right to reinstatement as a classroom teacher, mandamus will not lie. We REVERSE.

DAVIS, LEWIS, and ROBERTS, JJ, concur.


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Katherine Y. REED, Appellee.
    No. 1D07-1119.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2007.
    G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville, for Appellant.
    James F. McKenzie and Jack E. De La Piedra of McKenzie and Hall, P.A., Pensacola, for Appellee.
   PER CURIAM.

Reversed and remanded. See Florida Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815, 2007 WL 2727072 (Fla. Sept. 20, 2007).

ALLEN, DAVIS, and BENTON, JJ., concui1.


text:
    Paul Leslie URQUHART, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1311.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2007.
    Paul Leslie Urquhart, pro se, Appellant.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse for the trial court to resentence the appellant using a correctly calculated scoresheet.

On February 27, 1996, the appellant entered a plea of guilty to conspiracy to introduce contraband into prison (count one), and two counts of solicitation to introduce contraband into prison (counts two and three) in exchange for a sentence within the guidelines. The appellant was sentenced to 60 months’ imprisonment on count one, to run consecutively to the sentences he was then serving, and 51 months’ imprisonment each on counts two and three, to run concurrently to each other but consecutively to the 60 month sentence imposed for count one. Thus, the appellant’s total sentence was 111 months’ imprisonment, which was the maximum sentence under the guidelines.

The appellant asserts that his sentence is illegal because the guidelines scoresheet was incorrectly calculated. Specifically, he asserts that his primary offense (conspiracy to introduce contraband) was incorrectly scored as a level-four offense instead of a level-one offense. We agree. While the introduction of marijuana is a second-degree felony, conspiracy to introduce contraband is a third-degree felony. See §§ 944.47(2) & 777.04(4)(d), Fla. Stat. (1995) (providing that engaging in a conspiracy to commit a second-degree felony constitutes a third-degree felony). Additionally, the crime of introducing contraband into a correctional facility is not listed in section 921.0012. A third-degree felony that is not listed in section 921.0012 is scored as a level-one offénse. See § 921.0013(1), Fla. Stat. (1995). Thus, the appellant’s primary offense of conspiracy to introduce marijuana into a correctional facility should have been scored as a level-one offense. Likewise, the appellant’s two additional offenses of solicitation to introduce marijuana should have been scored as level-one offenses, rather than level-two offenses.

The state concedes that the appellant’s scoresheet was miscalculated, but argues that any scoresheet error was harmless because the trial court could sentence the appellant to 60 months’ imprisonment for count one under a correctly calculated scoresheet. However, under section 921.0014(3), the scoresheet must include “all the defendant’s offenses pending before the court for sentencing.” The appellant’s total sentence for all three counts must be within the guidelines range. See Fla. R.Crim. P. 3.702(19) (“The sentencing court shall impose or suspend sentence for each separate count, as convicted. The .total sentence shall be within the guidelines senten.ce unless a departure is ordered.” (emphasis added)). The score-sheet error cannot be considered harmless because the maximum sentence under the appellant’s correctly calculated guidelines scoresheet is less than the sentence he is currently serving (111 months), see Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001) (holding that a defendant is entitled ' to be resentenced when a scoresheet error results in a sentence that could not have been imposed under a correctly calculated scoresheet), and the plea agreement called for a sentence within the guidelines. Cf. Corp v. State, 698 So.2d 1349 (Fla. 1st DCA 1997) (“if appellant entered a plea agreement for the specific sentences imposed, without any conditional promises that such sentences be within the guidelines, then he would not be entitled to relief, as any scoresheet error would be harmless for purposes of rule 3.800(a)”); Master v. State, 637 So.2d 268 (Fla. 1st DCA 1994) (departure due to improper scoring not illegal when plea was not conditioned on receiving guidelines sentence); Boerstler v. State, 622 So.2d 184 (Fla. 1st DCA 1993) (holding that a sentence is not rendered illegal because of scoresheet error where plea agreement “does not reflect that the plea was conditioned on [the sentence] being within the sentencing guidelines.”). Accordingly, we REVERSE and REMAND to the circuit court with directions to resentence the appellant pursuant to a correctly calculated scoresheet.

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


text:
    Ricco Richardo Narales BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1353.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2007.

      Ricco Richardo Narales Brown, pro se, Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We reverse.

Appellant seeks testing of a Halloween mask and bandana allegedly worn by the perpetrator of the crimes. He asserts that the DNA test would exonerate him because there was no other physical evidence and the case was based on “circumstantial contradictory testimony of the victims.” He also alleges that the mask and bandana have already been tested, but “subsequent scientific developments in DNA testing techniques likely will produce a definitive result.”

Appellant’s motion is facially sufficient and, thus, the trial court ordered the state to respond. See Fla. R.Crim. P. 3.853(b). In response, the state asserted that new DNA technology does not exist and that given the testimony at trial, DNA testing would not produce a different result or exonerate the appellant. The trial court summarily denied the motion for the reasons delineated by the state.

In the instant case, remand is necessary because the trial court failed to attach any portions of the record supporting its conclusions or to conduct an evidentiary hearing to resolve any factual disputes. See Schofield v. State, 861 So.2d 1244 (Fla. 2d DCA 2003) (holding that a trial court must attach record portions conclusively refuting a facially sufficient 3.853 motion or conduct an evidentiary hearing); Borland v. State, 848 So.2d 1288 (Fla. 2d DCA 2003) (holding that if state’s response to defendant’s rule 3.853 motion creates a factual dispute, the trial court should hold an evidentiary hearing to resolve that dispute); Riley v. State, 851 So.2d 811 (Fla. 2d DCA 2003) (holding that neither trial court or appellate court could address factual discrepancies between defendant’s rule 3.853 motion and state’s response without considering the trial transcript or conducting an evidentiary hearing). On remand, if the trial court decides that the record conclusively demonstrates that appellant is not entitled to relief, it must attach those portions of the record. If the record does not refute appellant’s claims, the trial court must hold an evidentiary hearing.

REVERSED AND REMANDED.

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


author: THOMAS, J.

text:
    J. Michael JONES d/b/a Riviera Partners, LLC, Appellant, v. Richard WARMACK, Appellee.
    No. 1D07-1553.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2007.
    Christine D. Smallwood Miranda and John L. Gioiello of John L. Gioiello, P.A., Panama City, for Appellant.

      Simon H. Bloom, Atlanta, pro hac vice, for Appellant.
    John L. Fishel, II, Panama City, for Appellee.
   THOMAS, J.

In the case we have before us, Appellant (“Buyer”) appeals the trial court’s entry of summary judgment below, which effectively authorizes Appellee (“Seller”) to keep $200,000 in earnest money deposits paid by Buyer. Buyer argues that it is entitled to a return of its deposits because it was, in fact, Seller who first breached the agreement between the parties by failing to provide marketable title. We agree with the trial court that Seller’s actions did not constitute an anticipatory breach of the contract, and affirm.

The dispute in this case involves an Assignment Agreement (“the Agreement”) entered into between the parties, whereby Seller assigned his rights and interests in two identical underlying land purchase contracts (“the contracts”) to Buyer in consideration for $14 million. The Agreement required Buyer to make three earnest money deposits to an escrow agent on dates certain. Buyer timely made the first two deposits totaling $200,000. According to the terms of the Agreement, Buyer’s third deposit of $200,000 was due on February 8, 2005.

In both contracts, Section 4 states:

4. TITLE: Seller has the legal capacity to and will convey marketable title to the Property by statutory warranty deed, ... free of liens, easements and encumbrances of record or known to Seller, but subject to property taxes for the year of closing; covenants, restrictions, and public utility easements of record; and ... zoning, density, release of leases; provided there exists at closing no violation of the foregoing and none of them prevents Buyer’s intended use of the Property as Commercial.
(b) Title Examination: Buyer will, within 15 days from receipt of the evidence of the title deliver written notice to Seller of title defects.

The contracts further provide that Seller had a “Curative Period” of ten days from the date of this notice to cure all title defects, but also note, “Seller may elect not to cure defects if Seller reasonably believes any defect cannot be cured within the Curative Period.” If incurable defects were found, the contracts specifically gave Buyer ten days to either terminate the Agreement or accept title with the existing defects. The Agreement further specified that if one party breached or defaulted on any of the terms, the other party was entitled to the earnest money deposits.

On January 25, 2005, Seller timely provided a title commitment disclosing all requirements for, and exceptions to, the title insurance to be issued on the property. The next day Buyer provided Seller with a list of nine objections to the title.

On February 3, 2005, Seller responded to Buyer’s objections, stating that although most of the listed objections would be cured at closing, some objections could not be cured. In a letter to Buyer’s counsel, Seller reminded Buyer that he now had ten days to decide whether to accept title or terminate the Agreement.

During this ten-day period, on February 8, 2005, Buyer’s third deposit became due, and Buyer did not make the payment. On February 11, 2005, counsel for Seller notified Buyer that because Buyer failed to make the deposit required under the Agreement, Buyer was in default, the Agreement was terminated, and Seller was entitled to keep the $200,000 in earnest money deposits.

Later that same day, counsel for Buyer faxed a correspondence to Seller stating that Buyer did not accept the title as written and that Buyer wished' to cancel the Agreement. Buyer argued that it was entitled to a refund of its $200,000 in deposits because this notification occurred within the ten-day time period set forth in the contracts.

Buyer filed suit below, seeking a declaratory judgment that it was entitled to a refund of its deposits. The trial court granted Seller’s motion for summary judgment and entered its final judgment determining that Seller' was entitled to the $200,000 in earnest money deposits.

We are asked to determine which party breached the Agreement first. If one party to an agreement has breached the agreement, the other party’s failure to continue with the agreement is not considered a default of the contract. See Reider v. P-48, Inc., 362 So.2d 105, 109 (Fla. 1st DCA 1978). Buyer alleges that Seller committed an anticipatory breach of the Agreement when Seller failed to cure the title defects. If such a breach occurred, Buyer’s failure to pay the third deposit is not a default under Reider. Id. Conversely, if Seller’s actions did not constitute a breach, then Buyer’s failure to pay the deposit would be a default of the Agreement, and Seller would be entitled to the deposits. We agree with Seller, and do not read the contract provisions as restrictively as Buyer advocates.

As we stated in Barnett v. Destiny Owners Ass’n, Inc., “[i]t is the intent of the parties which is controlling.” 856 So.2d 1090, 1092 (Fla. 1st DCA 2003) (citing Moore v. Stevens, 90 Fla. 879, 106 So. 901, 903-904 (1925)). “The intention of the parties must be determined from an examination of the whole contract and not from the separate phrases or paragraphs.” Lalow v. Codomo, 101 So.2d 390, 393 (Fla.1958) (citing U.S. Rubber Products, Inc. v. Clark, 145 Fla. 631, 200 So. 385 (Fla.1941)). “In reviewing the contract in an attempt to determine its true meaning, the court must review the entire contract without fragmenting any segment or portion.” J.C. Penney Co., Inc. v. Koff, 345 So.2d 732, 735 (Fla. 4th DCA 1977) (citing Royal Am. Realty, Inc., v. Bank of Palm Beach & Trust Co., 215 So.2d 336 (Fla. 4th DCA 1968), and Int’l Erectors, Inc. v. Wilhoit Steel Erectors & Rental Serv., 400 F.2d 465 (5th Cir.1968)).

Because the parties agreed that Seller had the right to choose whether to cure any title defects, and Buyer had the right to accept or reject title, Seller did not breach the contract. Under the language of the contracts as a whole, the parties did not intend the title to be without defect but, rather, to be the best title to which Buyer would agree; or stated a different way, a marketable title that satisfied Buyer.

We can find no reason for the remedial structure of section 4(b) to be included in the contracts other than to provide a means to resolve any objections regarding title. This provision gives Buyer the opportunity to raise objections, and Seller the option to cure those objections. The provision further gives Buyer the final say in accepting or rejecting Seller’s cures. We do not accept Buyer’s argument that Seller’s delivery of a title with defects was an immediate breach of the Agreement, and all other provisions were superfluous. There is no language in the Agreement suggesting that, despite this remedial provision, defects in the title will terminate the Agreement.

We also note that under the terms of the Agreement, Buyer maintained his right to have ten days to consider the title offered by Seller. The act of paying the deposit was entirely separate and distinct from the decision to accept or reject the title. At the moment Seller informed Buyer that some defects would not be cured, Buyer had two contractual responsibilities: (1) pay the third deposit by the due date; and (2) inform Seller on or before the tenth day if the Agreement would be accepted or terminated. Buyer’s adherence to one responsibility did not excuse performance of the other.

Accordingly, we agree with the trial court that the only breach that occurred was Buyer’s failure to pay the third deposit. Thus, under the terms agreed to by the parties, Seller is entitled to the $200,000 in earnest money deposits.

AFFIRMED.

BENTON and HAWKES, JJ., concur.

      . The title objections that could not be cured included a power line easement, a mineral rights reservation in favor of the State of Florida, and objections to the plat.


text:
    Moses L. WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2005.
    District Court of Appeal of Florida, Fifth District.
    Oct. 23, 2007.
    Moses L. Warren, East Palatka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Florida Rules of Criminal Procedure 3.850(f).

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    Thomas George DESPART, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3961.
    District Court of Appeal of Florida, Fifth District.
    Oct. 23, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Kolin v. State, 927 So.2d 198 (Fla. 5th DCA 2006); Westerheide v. State, 831 So.2d 93 (Fla.2002).

ORFINGER, MONACO and LAWSON, JJ., concur.


text:
    Arthur HENSON, D.O., Petitioner, v. DEPARTMENT OF HEALTH, Respondent.
    No. 1D07-3727.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2007.
    Kevin J. Kulik, P.A., Ft. Lauderdale, for Petitioner.
    Philip Monte, Assistant General Counsel, Department of Health Prosecution Services Unit, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner, Dr. Arthur Henson, seeks review of an Order of Emergency Suspension of License, rendered June 18, 2007, by respondent, the Department of Health (Department). Previously, the Department rendered another emergency order suspending Dr. Henson’s license to practice as an osteopathic physician. On review of that order, this court found:

Respondent’s emergency order suspending the license of Dr. Henson to practice as an osteopathic physician is broader than that which is ‘necessary to protect the public interest under the emergency procedure,’ as required by section 120.60(6)(b), Florida Statutes (2005). The harms discussed in the emergency order deal with Dr. Henson’s prescription of excessive amounts of narcotic drugs without proper examination, diagnostic testing, and follow-up drug screening. There are no findings in the order stating that he provides inadequate care to patients for whom he is not prescribing narcotic pain relievers. Narrowly tailoring an emergency order to prohibit Dr. Henson from prescribing narcotics and from treating the three patients named in the emergency order would protect the public from the harm described until the administrative proceeding has been completed.

Henson v. Dep’t of Health, 922 So.2d 376 (Fla. 1st DCA 2006). Thereafter, the Department filed an Emergency Restriction Order on March 30, 2006, restricting Dr. Henson’s license by prohibiting him from prescribing narcotic pain relievers. Dr. Henson violated this order in May 2007, resulting in the Department issuing the instant Order of Emergency Suspension of License. This order contains the requisite findings, including the following paragraph:

21. Restriction of Dr. Henson’s license is not sufficient to protect the public, because Dr. Henson has been previously disciplined for inappropriately or excessively prescribing controlled substances to a patient; currently there is an Administrative Complaint that has been filed alleging that Dr. Henson failed to meet the standard of care and inappropriately or excessively prescribed controlled substances to three (3) patients; and Dr. Henson has disregarded an Emergency Restriction Order which restricted Dr. Henson from prescribing narcotic pain relievers. Dr. Henson has demonstrated a disregard for the duties and responsibilities imposed upon an osteopathic physician practicing in the State of Florida and for the health and welfare of his patients. Dr. Henson has demonstrated a disregard to a lawful order issued by the Department. Nothing short of the suspension of his license will protect the public from Dr. Henson.

See §§ 120.60(6), 456.072(1)(q), 456.072(2)(b), Fla. Stat. (2006). See, e.g., Bio-Med Plus, Inc. v. State, Dep’t of Health, 915 So.2d 669, 671-72 (Fla. 1st DCA 2005); Field v. State, Dep’t of Health, 902 So.2d 893, 894 (Fla. 1st DCA 2005).

DENIED.

KAHN, PADOVANO, and HAWKES, JJ., concur.